ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE ADAM CATE Appellant
and
PEEL REGIONAL POLICE SERVICE Respondent
Presiding Members: Murray W. Chitra, Chair Michele J. Shepard, Member
Appearances: Harry G. Black, Q.C., Counsel for the Appellant Ian D. Scott, Counsel for the Respondent
Hearing Date: October 15, 2002
This is an appeal by Constable Adam Cate from a single conviction for the disciplinary offence of deceit, contrary to section 2(1)(d)(ii) of the Code of Conduct (the "Code"). The decision in question was rendered by Superintendent Bernard Swain (the "Hearing Officer") on October 11, 2000.
Background:
Adam Cate is a constable with the Peel Regional Police Service (the "Service"). On April 7, 1999 he was ordered by Detective Sergeant Strain to surrender all his police notebooks for the period from November 16, 1987 to August 2, 1996.
Fifteen notebooks were produced. Constable Cate stated that he was not able to provide the others (some 59 notebooks) because they had not been returned to him following an earlier internal investigation.
Constable Cate was confronted with a receipt, dated June 15, 1995, signed by him entitled 'Return of Notebooks & Traffic Ticket Books To Constable A. Cate'. This document referred to some 56 police notebooks and 46 traffic books. The notebooks were identified as being from the period from November 16, 1987 to July 29, 1994.
It was suggested to Constable Cate that this receipt was proof that he had possession of all of the books in question. It was further pointed out that he had used one of the notebooks identified in the receipt to testify in a criminal case on two occasions. This notebook was one of the fifteen surrendered by Constable Cate.
Constable Cate stated again that he did not have any of the notebooks in question. He indicated that he did not know where they were. He stated that he had signed the receipt to acknowledge receiving a copy of that document and not for taking personal possession of the notebooks identified in it. He was emphatic that he had surrendered all notebooks that he had.
On November 4, 1999 Constable Cate was charged with three counts of misconduct. For the purpose of this appeal only one is relevant. That allegation was that Constable Cate had committed the disciplinary offence of deceit. The specific allegation was that "In denying that he possessed notebooks for which he had signed and which were clearly in his possession, Constable Cate willfully made a false statement pertaining to his official duties and so was deceitful".
The Hearing:
Constable Cate appeared before the Hearing Officer on September 25, 2000 and plead not guilty. The disciplinary proceeding started that day and continued on September 27 and 28. A total of 13 witnesses including Constable Cate testified.
The evidence disclosed that sometime in 1994 Constable Cate became the subject of an internal investigation. As a result, all his notebooks were seized by Detective Barton on August 4, 1994. The notebooks were catalogued and kept in an office accessible to a number of investigators.
On August 10, 1994 a logbook system was put in place to permit Constable Cate to sign out any notebooks that he required for court. Over a period of time he signed out and returned a number of notebooks. The various transactions were witnessed by several different officers.
Constable Cate stopped working on August 12, 1996. He returned to duty almost two years later on August 31, 1998. When he did so he received a large green garbage bag and a box containing some personal possessions and two notebooks. One of these notebooks had been used by Constable Cate to assist him in giving evidence in a criminal case. It was not 'signed out' in the original logbook. Constable Cate testified that this was because he had collected the notebook from Detective Barton before the sign out system was established.
Constable Cate acknowledged signing the receipt dated June 15, 1995. He repeated the explanation provided to Detective Strain. When pressed about where the notebooks where he stated that he assumed they had been transferred to the Records Bureau. He indicated that when he had returned to work he had done his best to find out where the notebooks were, but had no luck.
On October 11, 2000, the Hearing Officer found Constable Cate guilty. He concluded that there was clear and convincing evidence that the notebooks had been returned to him on June 15, 1995. He found that the wording of the receipt signed by Constable Cate was a clear acknowledgement that he had taken possession of the notebooks. He rejected Constable Cate's explanation for his signature on the receipt because to accept it would mean that he would have to conclude that Constable Cate was "somewhat naïve and openly trusting of staff in Internal Affairs".
The Hearing Officer found that there was clear evidence that Constable Cate had used a notebook that was not 'signed out' to testify on two occasions. He rejected Constable Cates explanation that he had received the notebook before the sign-out system was put in place. The obvious implication was that the notebook in question had been received by Constable Cate on June 15, 1995 along with the others.
The Hearing Officer stated:
I also have to ask, if the notebooks were not returned to Constable Cate as the evidence showed they were, where are they? An extensive search of the appropriate possible locations has been made by both Staff Sergeant Pegrum and, according to his own claims, Constable Cate himself. Short of someone deliberately and for a malicious purpose hiding them all, they should have been found in short order. I have no reason to believe that anyone involved in this case would have such a motive or did such a thing.
He went on to find that Constable Cate's evidence was "evasive, circumloquacious and displaying inappropriate anger". The Hearing Officer went on to conclude he could not accept Constable Cate's claim that the notebooks were never returned to his possession. The matter was set over until January 8, 2001 for sentencing.
On December 4, 2000 a civilian custodian found a banker's box containing Constable Cate's notebooks in a "seldom used area" of a secure supply room in the basement of 22 Division. Access to this locked room is described as "highly restricted" (i.e. limited to the custodian and a sergeant). According to the custodian the box had "been in 22 Div. Storage room for approx. 2 years (more or less)".
Needless to say this caused great confusion when the hearing was reconvened. Reading from the transcript, it is evident that the Hearing Officer was clearly distressed and facing a serious dilemma. In order to deal with this situation, the prosecutor suggested that he 'borrow' the concept of 'mistrial' from criminal law. Over the objection of Constable Cate's lawyer, the Hearing Officer declared a mistrial and a date was set for a new hearing.
In a ruling dated October 2, 2001, we concluded that the Hearing Officer had no authority to order a mistrial. Accordingly, this appeal proceeded against the original conviction.
Preliminary Motion:
At the beginning of this proceeding, Mr. Black brought a motion pursuant to section 13.3 of the Rules of the Ontario Civilian Commission on Police Services. The purpose of this motion was to have us receive new evidence in accordance with section 70(5) of the Police Services Act. That provision allows the Commission to receive new or additional evidence on appeal when it is considered 'just'.
The evidence in question consisted of three documents. The first was an affidavit of Ms. Joanne Mulcahy dated November 21, 2001. The other documents were internal police memorandums from Mr. Norm Kellow dated December 2, 2000 and Sergeant Chaddock dated January 3, 2001. All related to the discovery of Constable Cate's notebooks in the supply room at 22 Division.
We agreed to admit this evidence. It was our view that these documents were relevant, credible and had the potential to affect the result of this appeal. See Palmer v. R. (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.). The two internal memoranda were never formally tabled as exhibits during the original disciplinary hearing. However, they were discussed at the proceeding of January 8, 2001 and mentioned in the Hearing Officer's final decision. For all practical purposes, they were part of the record of the original hearing.
Accordingly, under the circumstance, we felt it would be just to receive these documents as new evidence.
Appellant's Position:
Mr. Black urged us to overturn the conviction.
He argued that the Hearing Officer's findings were based on a complete misapprehension of the evidence. He suggested that the Hearing Officer's factual conclusions were replete with error. To make this point, Mr. Black drew our attention to fourteen situations where he felt the Hearing Officer made incorrect findings. Mr. Black suggested that, overall, the evidence did not support a finding of misconduct to the degree of proof required by the Police Services Act.
On this point he drew our attention to Harper v. R. 1982 CanLII 11 (SCC), [1982], 1 S.C.R. 2 (S.C.C.), R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), R. v. Daniels (1999), 137 C.C.C. (3d) 527 (Nfld. C.A.), Besco and Peel Regional Police Service (5 October, 2001, unreported, O.C.C.P.S.), Brisson v. Ontario Association of Architects [1992], O.J. No. 1550 (Div. Ct.) and Bernstein and College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d) 477 (Div. Ct.).
He further argued that the Hearing Officer was inconsistent in the manner in which he dealt with the various charges against Constable Cate. This related to the fact that the Hearing Officer withdrew one charge on January 8, 2001 and elected to order a new disciplinary proceeding on the allegation of deceit. To this end he cited R. v. McShannock (1980), 1980 CanLII 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.) and R. v. Tillekarata (1998), 124 C.C.C. (3d).
Mr. Black also argued that the disciplinary proceedings were conducted in such a manner as to represent a denial of natural justice and a breach of procedural fairness. Essentially, he suggested that once Constable Cate's notebooks were discovered the only 'fair' course of action was to stay the deceit charge.
In support of this position he drew our attention to Sawatsky v. Norris (1992), 10 O.R. (3d) 67 (Ont. G. D.) and Russell and Downing and Metropolitan Toronto Police Service (2 March, 1995, unreported, Hearing Officer R. G. Spencer).
Respondent's Position:
Mr. Scott argued that we should deny this appeal.
He pointed out that it is not the role or function of the Commission to second-guess the decision of the Hearing Officer. He suggested that we should only be overturning findings where the conclusions of a Hearing Officer as to credibility cannot be reasonably accepted or are void of evidentiary foundation. He cited Williams and Ontario Provincial Police (1995) 2 O.P.R. 1047 (O.C.C.P.S.).
Mr. Scott argued that the findings of the Hearing Officer were correct and proper and that he did not misapprehend the evidence. He addressed each of the fourteen examples of improper findings identified by Mr. Black. He argued that many of his concerns related to other disciplinary charges that are not before us.
Overall, he suggested that there was clear evidence that Constable Cate was deceitful. These related to the fact:
- that he signed a document on June 15, 1995 acknowledging receipt of his notebooks; and
- he had actually used one of these notebooks to testify in court on two occasions.
He argued that this, along with certain statements made by the Appellant to Staff Sergeant Dwyer were sufficient foundation to permit the Hearing Officer to reach the conclusion that Constable Cate was guilty of deceit. He cited Norris v. Loranger (1998), 2 P.L.R. 493 (Ont. Bd. Inq).
Mr. Scott argued that there was no inconsistency, unfairness or denial of natural justice arising from the Hearing Officer's decision not to 'stay' the deceit charge. He pointed out that the various charges before the Hearing Officer were different in nature. Given the Commission's previous decision on October 2, 2001 he suggested this point is moot. As well, given any remaining unfairness, he pointed out that the Appellant has exercised his statutory right to appeal to the Commission.
Decision:
It is a well-established principle that an appellate body such as the Commission should only interfere in cases where a Hearing Officer has made a manifest error, ignored relevant evidence or drawn erroneous conclusions. See Williams and Ontario Provincial Police at page 1058. Further, it is not our role or function to simply substitute our decision for that of the Hearing Officer with respect to findings of fact.
Matters relating to the credibility of witnesses are clearly within the Hearing Officer's domain. In Carmichael and Ontario Provincial Police (21 May, 1998, unreported, 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 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
Only in exceptional cases where the reasoning itself is evidently wrong, contains error, or cannot be reasonably accepted, will the Commission interfere with the conclusions made by the Hearing Officer.
The disciplinary charge of deceit is found at section 2(1)(d)(ii) of the Code. It reads:
2(1) Any … police officers commits misconduct if her 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 …
It is a serious allegation.
The Commission has examined the nature of this provision in previous cases. See Precious and Hamilton Police Service (10 May, 2002, unreported, O.C.C.P.S.). The analysis in Lloyd and London Police Service (20 May, 1999, unreported, O.C.C.P.S.) is helpful. At pages 10 to 11 of that case it states:
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 or 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 Service (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 said to be inaccurate or 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 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.).
How does this apply to the facts of this case?
The key question is whether or not the Hearing Officer had sufficient credible "clear and convincing evidence" to reach the conclusion that Constable Cate intended to make a fraudulent misrepresentation to his employer. More to the point, did the Hearing Officer ignore relevant evidence, misunderstand key portions of that evidence or draw erroneous conclusions?
To our mind the conviction cannot stand. It is founded on manifest error and erroneous conclusions.
The essential allegation against Constable Cate was that "in denying that he possessed notebooks for which he had signed and which were clearly in his possession, Constable Cate willfully made a false statement pertaining to his official duties and so was deceitful".
When Constable Cate was approached by Detective Sergeant Strain on April 7, 1999 with a demand to produce all of his notebooks, he only had a few in his possession. The majority were locked in a secure storage room in 22 Division. Constable Cate had no access to this location. These notebooks were clearly not in his possession.
The Hearing Officer did not accept Constable Cate's testimony. He noted that there had been an extensive search for the documents. He concluded that if they were really in the possession of the Service (as suggested by Constable Cate) "they should have been found in short order". This was obviously not correct.
The case then turns on the fact that one notebook that Constable Cate surrendered to Detective Sergeant Strain had been used to testify on two occasions. That notebook had not been "signed out". The implication was that Constable Cate had received it on June 15, 1995 along with the others.
On the latter point we would make a number of comments. First, it is clear from testimony that the "sign-out" system was not in place between August 4 and August 10, 1994. As such, there are no records concerning the notebooks removed during that period. This is the time when Constable Cate says he received the notebook in question from Detective Barton.
Further, once the system was implemented, it is evident that the whole process was somewhat haphazard. There were errors in the initial inventory. The notebooks were not kept in a secure area, but were accessible to a number of officers. Several persons were involved in signing notebooks in and out. There was confusion about how the process worked. Most of the witnesses involved had no independent recollection of transactions (let alone one notebook). There were errors in the logbook itself. The listing of documents on the receipt of June 15, 1995 was not accurate.
Given these circumstance, we do not believe that it is possible to conclude that possession of the single notebook represents "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." See Allen v. Munro (27 July, 1994, Ont. Bd. Inq.) at page 11.
Finally, there is the matter of the receipt of June 15, 1995 itself. Constable Cate says he signed it to acknowledge receiving a copy of document itself. The Hearing Officer rejected this explanation. He suggested it could not be accepted because it would mean that Constable Cate was 'naïve' and 'trusting'. Instead, he found that Constable Cate had actually taken possession of over a hundred books.
Fourteen months after signing this receipt Constable Cate went off duty. He did not return to work for two years. There was evidence that about this same time Constable Cate started inquiring about the location of his other notebooks. This was before the April 7, 1999 demand. This, along with the subsequent discovery of these documents in the possession of the Service in a secure storage facility, supports Constable Cate's assertion that he did not take possession of the documents in June of 1995.
Leaving this aside, the mere fact that Constable Cate signed the receipt is not in and of itself sufficient to support a conviction for deceit. As the Commission stated in Burgess and St. Thomas Police Service "It is a long mile … 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". That distance has not been travelled in this case.
That being said, we wish to express our sympathy for the Hearing Officer given the very difficult situation he found himself in on January 8, 2001. He obviously was very concerned about the discovery of the notebooks and the impact on the fairness of the whole disciplinary process. He acknowledged "there was a -- in the absence of any evidence to the contrary, a significant error made here."1
We agree. For the above reasons, and the absence of any evidence to the contrary, we would overturn the conviction.
DATED AT TORONTO THIS 5TH DAY OF DECEMBER, 2002.
Murray W. Chitra Chair, OCCPS
Michele J. Shephard Member, OCCPS