Senior Constable Alexander Krug v. Ottawa Police Service, 2003 CanLII 75460

ONTARIO CIVILIAN POLICE COMMISSION

DATE: January 21, 2003

FILE: OCPC-03-001

CASE NAME: SENIOR CONSTABLE ALEXANDER KRUG AND THE OTTAWA POLICE SERVICE

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

BETWEEN:

Senior Constable Alexander Krug APPELLANT

-and-

Ottawa Police Service RESPONDENT

DECISION

Panel: Barbara Morland Wellard, Member Orlando Zamprogna, Member

Hearing Date: September 30th, 2002

Hearing Location:

Appearances: Ian Roland, Counsel for the Appellant Lynda A. Bordeleau, Counsel for the Respondent

I. Introduction

1. On July 5th, 2001 Inspector (Retired) Gregory C. Connolley (the "Hearing Officer") found Senior Constable Alexander Krug guilty of four counts of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at O.Reg. 123/98 (the "Code"). Subsequently, on January 28th, 2002, the Hearing Officer ordered that Senior Constable Krug be dismissed from the Ottawa Police Service (the "Service").

2. Senior Constable Krug appeals both the findings of guilt and penalty imposed.

II. Background

3. The Appellant is fifty-one years old. He has been a police officer for twenty years.

4. On August 18, 2002 he was charged with four counts of discreditable conduct. The charges pertained to allegations of inappropriate comments or touching of a sexual nature during a four-month period in early 2000. These involved four different women on separate occasions. These events allegedly took place while Senior Constable Krug was on duty at either the public information desk of the Service's Kanata or Greenbank Road Stations.

5. The first two allegations concerned members of the public. On February 21, 2000 K.W.¹ arrived at the Kanata Station to report a threat by an ex-boyfriend. It was alleged that Senior Constable Krug took her to an interview room where he "made several inappropriate statements and inquiries of a sexual nature; including but not limited to; a) inquiring and commenting as to the size of K.W.'s [sic] ex-boyfriend's penis and size of the male anatomy in general; and b) what her reaction were to be if … [Senior Constable Krug] were to lie on top of her and 'fuck' her?"

6. The second incident concerned S.L. She reported to the information desk at the Kanata Station on February 22, 2000 to file a complaint against another police officer. It was alleged that the Appellant made a number of inappropriate statements to her, including "a) inquiring if she liked being a prostitute; and b) that … [Senior Constable Krug] attended nude parties."

7. The third charge concerned M.M., a civilian police volunteer. On May 8, 2000, she was working alongside Senior Constable Krug at the information desk of the Greenbank Road Station. It was alleged that Senior Constable Krug approached M.M. from behind while she was standing in front of a drawer and placed his hands on her hips "and moved her to the side. While doing this … [Senior Constable Krug] stated out loud 'this could be fun'."

8. The fourth charge involved Detective S.P. She was an undercover police officer who went to the information desk at the Greenbank Road Station on May 26, 2000 posing as a member of the public with a problem. She was also taken to an interview room where it is alleged that Senior Constable Krug made "personal and graphic inquiries as to her sexual preferences and practices including; a) inquiring as to the size of her ex-boyfriend's penis, b) inquiring whether or not she gave good blow jobs, c) inquiring if she liked "small cock or big cock". It was also alleged that the Appellant inappropriately touched Detective S.P. "by opening her jacket and touching her upper chest area with a pen."

The Hearing

9. The disciplinary hearing to inquire into these four charges took place over the course of twelve days. Testimony was heard from 16 witnesses including the Appellant. All four women gave evidence.

10. The Hearing Officer heard that during the morning of February 21, 2000 K.W. telephoned the Ottawa Police Service and requested assistance in filing a report concerning a threat to her life by an ex-boyfriend. She subsequently attended at the Kanata Station. Senior Constable Krug interviewed her in a separate room with the door closed for nearly four hours. They were alone for most of this time. On those occasions when the Appellant was out of the room a volunteer kept K.W. company.

11. The Appellant obtained a copy of K.W.'s ex-boyfriend's criminal record and kept it in front of him. During the interview, K.W. advised Senior Constable Krug that she was a survivor of incest and abusive relationships. K.W. testified that the Appellant asked questions of a sexual nature as set out earlier.

12. The Hearing Officer heard that K.W. answered the sexually oriented questions because of her background as a victim of incest and abuse. She trusted that a police officer would ask her appropriate questions. Senior Constable Krug wrote on his occurrence report regarding the K.W. incident, the phrase: "what a sick family". K.W. also alleged that he wrote the word "penis" on a piece of paper and circled it several times.

13. During the final twenty minutes of the interview the Appellant and K.W. were joined by Mrs. Ruth Campbell, a civilian member of the Service assigned to the Victim Crisis Unit. Mrs. Campbell subsequently complained to senior officers about the interview. This complaint was based on a phone conversation she had with K.W. the following day.

14. At the hearing the Appellant denied making any offensive remarks to K.W. He said that he felt that she was at risk and spent two hours trying to get her assistance. He acknowledged asking her what she would do if her ex-boyfriend pulled his pants down and got on top of her without consent. He indicated that this was for the purpose of making it clear to K.W. that she could say no to forced sex.

15. The Hearing Officer rejected this explanation and found the Appellant guilty.

16. The Hearing Officer also heard testimony from S.L. concerning her contact with Senior Constable Krug on the following day. She was involved in a custody dispute with her former spouse. She had concerns that someone may have released her criminal record to her ex-spouse's lawyer.

17. S.L. testified that Senior Constable Krug asked about two prior prostitution convictions and if "when I did it if I enjoyed it and I said no". She stated that Senior Constable Krug stated that he had been to a "naked party". S.L. was not offended by the question or comments. S.L. testified that she was flirting with the Appellant and he was flirting with her. She also said that he was so helpful that she returned to the station later the same day with coffee and donuts for him.

18. In his evidence, Senior Constable Krug stated that the only reference he made to S.L.'s prostitution convictions was asking her where and when they occurred. He testified that this was for purposes of providing S.L. with advice on how to obtain a pardon. He stated that he did not ask her if she liked it nor did he make reference to attending nude parties.

19. The Hearing Officer found Senior Constable Krug guilty on this count. He indicated that while S.L. was not upset with the remarks that they offended reasonable community standards and, as such, were likely to damage the reputation of the Service.

20. The Hearing Officer also heard the evidence of M.M. She was a civilian volunteer assigned to the Greenbank Station. She had never worked with the Appellant prior to May 8, 2000. According to M.M. Senior Constable Krug placed his hands on her hips while she was standing in front of a filing cabinet, and moved her aside while making a statement that "this could be fun." Another volunteer was standing two meters away. He witnessed the Appellant moving her. However, he testified that Senior Constable Krug said "this could work". M.M. was upset by the actions of the Appellant and advised her supervisor that she did not want to work with him again. She also expressed concern about the manner in which he dealt with members of the public.

21. Senior Constable Krug acknowledged touching M.M. He testified that he said "excuse me" before he did so and only used two fingers of his left hand to move her to the side. He stated that he did not say "this could be fun" but "this should work".

22. The Hearing Officer found Senior Constable Krug guilty of discreditable conduct for his actions in this incident. He concluded that the Appellant's comments did not constitute harassment within the meaning of the Service's policy. However, he found that the Appellant's touching of M.M. was unwelcome physical contact and a breach of the "general policy of the police service".

23. Evidence on the final count was provided by Detective S.P. The Detective has been a Toronto Police Service officer since 1985. She has 13 years of experience in undercover police operations. It would appear that as a result of the earlier complaint about Senior Constable Krug's actions that she was brought to Ottawa to undertake such an operation against him.

24. Arrangements were made for Detective S.P. to contact the Appellant but not to allege a criminal offence or introduce any subject in conversation with sexual content. Detective S.P. called the Service under the pretense to ask for advice on what to do about a boyfriend that was possessive and controlling and she asked to speak with Senior Constable Krug. On May 26, 2000 she attended the Greenbank Road Station and met with him in an interview room with the door closed.

25. She testified that she told Senior Constable Krug that her boyfriend was obsessed with the way she dressed and called her all the time. She also talked about how her boyfriend used to always show up at a restaurant in Toronto where she had worked. The Appellant asked her if she dressed provocatively and she responded that she always dressed 'nice'. She testified that Senior Constable Krug asked if she had sex with customers at the restaurant. He told her that he thought she had a nice body even though he had not seen it naked. She testified that the Appellant asked if she had had sex with her boyfriend. She stated that she had. Detective S.P. testified that Senior Constable Krug asked if their sex was good. He asked if a blow job was good sex and whether she gave her boyfriend a good blow job.

26. Detective S.P. testified that she told Senior Constable Krug that she was embarrassed. She testified that he asked her if her boyfriend forced her to have sex. He asked Detective S.P. whether the boyfriend had a good sized penis and gestured the size with his hands. Detective S.P. stated that Senior Constable Krug said that every time he meets a woman he asks whether they liked "small cocks or big cocks". Detective S.P. testified that Senior Constable Krug stated that a size of a penis makes a big difference because some women have "small holes" and it hurts them. She testified that the Appellant, in their conversation, made an analogy about oral sex and stated "if he is so good at licking your pussy…why would you want to leave him if he was good at licking your pussy".

27. Detective S.P. testified that Senior Constable Krug asked her to stand up and stated that maybe her boyfriend liked the model type body. He stated that he had not seen her body naked but her boyfriend must like it. He pushed her coat open with his hand and said you have a small waist and he probably likes that. She said that the Appellant asked her if she took her clothes off at work. She testified that Senior Constable Krug touched her around her cleavage area with a pen.

28. Detective S.P. stated that Senior Constable Krug asked to see her again that same night. As a result, Detective Ronald Angeli of the Ottawa Police Service Criminal Intelligence Office undertook surveillance at S.P.'s 'Ottawa residence' at 1310 Pinecrest Road. Detective Angelli testified that at approximately 20:24 p.m. he set up surveillance near that location. At 21:14 hrs. Detective Angeli observed a vehicle in the parking lot of S.P.'s building. Senior Constable Krug was the driver. The car stayed in the parking lot for only a few minutes.

29. In response, Constable Krug essentially testified that shortly after the commencement of their interview that he suspected or knew that S.P. was an undercover police officer. This was because she was inconsistent with some of her answers and asked specifically for him when calling the police station. As a result, he "played along" and made what he knew were totally inappropriate statements to Detective S.P. during the interview. He admitted using his pen to open up her jacket. He insisted that this was not to check her cleavage but to see if she was wearing a 'wire'. He stated that the only reason he went to her residence after the interview was to see who "set him up".

30. In his defence, Senior Constable Krug called Constable D.H. It appears that she was another undercover officer who had been sent to speak to him on May 28, 2000. In her evidence, she stated that she did not believe that Constable Krug made any lewd or obscene statements or actions during their interview. However, she categorized Constable Krug's statements as inappropriate.

31. Sergeant Valerie Hutt, a 19-year veteran of the Service also testified. At issue was whether or not she had provided Detective S.P. with the details of the interviews that Constable Krug had conducted with K.W. and S.L. She testified that general information concerning the K.W. and S.L. incidents had been provided. Sergeant Hutt did not recall sharing written material with Detective S.P. In her testimony she stated that she could not specifically recall if she gave K.W.'s statement to Detective S.P. or not, but confirmed that she communicated the content.

32. The Hearing Officer rejected these explanations and found Senior Constable Krug guilty of discreditable conduct with respect to his treatment of Detective S.P.

33. The penalty phase of the hearing took place over the course of several further days in the fall of 2001. A number of additional witnesses testified. They included six sergeants and staff sergeants who had, at various points in time, supervised the Appellant. Two constables and two volunteers testified about their working experience with Senior Constable Krug.

34. A number of performance assessment documents over the eleven-year period concluding in March of 2000 were received as exhibits. The Performance Evaluations generally described the Appellant's overall work as being fair, average, acceptable, satisfactory or good. On a few occasions it was rated as being unsatisfactory. However, in 1997 and 1998 the overall annual assessment was "very good".

35. The sergeants testified to different aspects of these assessments. As well, they offered a number of personal comments or opinions about the Appellant. These included statements to the effect that he:

• was stressful to supervise
• did not accept criticism well and was quick to blame others
• lacked common sense and judgment
• was unable to perform the duties of a police officer

36. Two of the sergeants expressed concerns about their personal safety when dealing with the Appellant and had worries that he would "retaliate".

37. Evidence was also received from Dr. Peter Collins, a forensic psychiatrist. He testified about the "risk" of the Appellant offending again and Senior Constable Krug's rehabilitative potential. This assessment was based on an examination of the Appellant's file, documentation relating to the allegations and a review of disciplinary hearing transcripts. Dr. Collins concluded that the Appellant appears to "have a pervasive pattern of maladaptive interpersonal functioning that has chronically interfered with his ability to be a police officer". He also described Senior Constable Krug as being apparently "rigid in his dealings with the public", not responding "well to criticisms of supervisors", "a loner who has a distrust of fellow officers and is viewed as being 'bizarre' and 'unmanageable'".

38. Finally, Senior Constable Krug testified and the Hearing Officer received a variety of documents relating to his employment history.

Appellant's Position

39. Mr. Roland, on behalf of Senior Constable Krug, breaks the four counts down in order of severity with the allegation of M.M. being the least serious to the allegations of S.P. being the most serious. He stated that at issue, in each situation was the credibility of the complainant or witness. The Hearing Officer accepted the testimony of the complainants and other witnesses over that of Senior Constable Krug when there were inconsistencies. Mr. Roland urged us to find that the evidence of the Appellant was, in fact, credible and the evidence of the complainants when inconsistent with Senior Constable Krug's should not have been relied upon. In accepting the evidence of the witnesses over that of Senior Constable Krug and on basing his finding of guilty on that evidence, Mr. Roland submitted that the findings were unreasonable and void of evidentiary value. Further, he suggested that as a result of relying upon discreditable testimony, there could not have been clear and convincing evidence of guilt on all four counts.

40. With respect to the allegation pertaining to M.M., Mr. Roland urged us to find malice on the part of M.M. against Senior Constable Krug. She indicated to her supervisor that she did not want to work with the Appellant. Mr. Roland stated that there was no finding of a sexual overtone with respect to this incident and one cannot infer (as did the Hearing Officer) that Senior Constable Krug ought to have known that his conduct was inappropriate as there was evidence before the Hearing Officer that the Appellant said "excuse me".

41. With respect to the allegations pertaining to S.L., Mr. Roland noted that S.L. did not find the actions of Senior Constable Krug offensive. In fact, after the interview she brought him a coffee and donuts. In her evidence, she referred to the conversation between them as "flirting". He submitted that there was no re-victimization of S.L. during the interview and the inappropriateness must be subjective and not objective.

42. He submitted that the question as to whether or not she liked being a prostitute was an appropriate question because it was within the context of S.L. applying to obtain a pardon. Constable Krug might have been asking her "are you still a prostitute" with the question "do you like being a prostitute". The pardon was something that Senior Constable Krug was considering as it may have been of assistance to her given that she was in the middle of a custody battle with the father of her children.

43. With respect to K.W., Mr. Roland urged us to find that the Hearing Officer was not properly attuned to her ability to recall the event. During the interview she was distraught and crying. He took issue with the fact that the Hearing Officer gave her "added" credibility and reliability due to her candidness regarding her past sexual abuse. His position is that she had difficulty recalling certain aspects of the interview.

44. K.W. was adamant that Senior Constable Krug wrote the word "penis" on a piece of paper in large letters and circled it many times. That document could never be found and that part of her evidence could never be corroborated. Senior Constable Krug denied that he talked about penis size. Mr. Roland stated that the failure to find the piece of paper in question corroborated Senior Constable Krug's evidence and not K.W.'s. He said that the Hearing Officer failed to confront this discrepancy and brushed it aside as inconsequential. He stated "I will not consider it…" Mr. Roland argued that the Hearing Officer was obliged to consider it in his decisions and failed to do so. He suggested that this was very important given that it was the only corroborative evidence available.

45. Mr. Roland urged us to find that K.W. had a motive to exaggerate her encounter with Senior Constable Krug. She was concerned that there would be an investigation into potential sexual assault charges against her boyfriend or with respect to her allegation relating to incest. She wanted neither. Mr. Roland stated that with respect to credibility a Hearing Officer must deal with all evidence relating to the key points that are in dispute. He could not simply rely on the demeanor of the witness

46. With respect to the allegation pertaining to S.P., Mr. Roland urged us to find that she had a motive to exaggerate because she "botched" the undercover operation. She wanted to avoid embarrassment. He stated that the errors she made risked the investigation. They led her to conduct herself in a sexually provocative way when she was instructed not to do so. Mr. Roland stated that the Hearing Officer failed to deal with this issue. In fact, Mr. Roland urged us to find that the actions of S.P. mirrored the actions of K.W. and her interaction with Senior Constable Krug.

47. Mr. Roland also argued that the Hearing Officer failed to deal with significant discrepancy between the evidence of Detective S.P. and Sergeant Hutt. S.P. specifically stated in her evidence that she did not recall being told of the details of the K.W. incident, yet Sergeant Hutt's testimony indicated that Detective S.P. received the specifics of K.W.'s allegations. The Hearing Officer in his decision concluded that the provision of the statement was of a minor consequence and basically ignored it. However, Mr. Roland urged us to find that this was not of a minor consequence and Detective S.P. may have tailored her account to be similar to K.W.'s allegations. His position is that if Detective S.P. had been given the particulars of the complaint prior to the undercover operation, then her evidence would have been tainted.

48. Mr. Roland argued that the Hearing Officer failed to deal with the distinction of the evidence of Constable D.H. who had not been told the specifics and Detective S.P. who had been given the specifics. He stated that these two officers had dramatically different results in their dealing with Senior Constable Krug because D.H. did not make mistakes whereas S.P. did.

49. Mr. Roland stated that when one compares the distinctions between these two interviews (D.H. and S.P.), then the truth begins to unfold: an obvious desire to make sure that the Appellant was convicted. He stated that this became quite clear during the penalty phase. There were a number of witnesses who testified with respect to the undesirability to continue to have Senior Constable Krug on staff. In fact, one of the staff sergeants who had worked with the Appellant threatened to take "sick leave" if he returned to the force.

50. To summarize, it was Mr. Roland's position that the M.M. and S.L. allegations were not of such a serious nature to warrant a finding of misconduct. With respect to the allegations pertaining to S.P. and K.W., the evidence of the complainants was not reliable and therefore was not of such a nature upon which the Hearing Officer could convict.

51. As well, he argued that the penalty imposed in this situation was excessive, failed to take into account the appropriate factors and ought to be reduced. He indicated that Senior Constable Krug would be prepared to accept a penalty short of dismissal.

Respondent's Position

52. Mrs. Bordeleau argued that the Hearing Officer had weighty, cogent and reliable evidence upon which to base his decision and that he came to a reasonable conclusion in finding Senior Constable Krug guilty on all four charges. She cautioned us that we do not have the benefit of seeing the witnesses, hearing their testimony or assessing the weight or value of the evidence. She advised us that we can 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.

53. She reminded us of Williams and Ontario Provincial Police (1996), 2 O.P.R. 1047 (O.C.C.P.S.) where it was stated that our role or function in such matters is not to second-guess the decision of the Hearing Officer. In certain limited cases, it is open to us to reach a different conclusion from the Hearing Officer. However, that must be based on the strongest ground.

54. She pointed out that matters of credibility and findings of fact are clearly within the Hearing Officer's domain. It is not the role of the Commission to merely substitute their decision for that of the Hearing Officer with respect to matters of fact. 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. She suggested that we have to ask ourselves, are the conclusions of the Hearing Officer void of evidentiary foundation?

55. She submitted that the Hearing Officer was satisfied that Senior Constable Krug interacted with K.W., S.L., M.M. and Detective S.P. at the times, dates and locations listed in the Notice of Hearing. She stated that contrary to the allegation of the Appellant, the Hearing Officer considered the emotional state of the witnesses as well as any motives to fabricate their evidence against him. She stated that the Hearing Officer's decision was based on specific findings of fact. She argued that the findings of the Hearing Officer were not void of evidentiary foundation and there was an evidentiary basis for the findings. The Hearing Officer was faced with conflicting evidence and chose to believe one witness over the other.

56. Ms. Bordeleau did not deal specifically with the allegation concerning S.L. but suggested that it demonstrated a pattern of behavior that supported her position that Senior Constable Krug lacks judgment and is inappropriate when dealing with women in crisis. Basically, she supported the position of the Hearing Officer that the interview with S.L., did not have to subjectively offend S.L. but a reasonable person would find it offensive and therefore a finding of discreditable conduct was appropriate.

57. With respect to the issue of the "added credibility" referenced by the Hearing Officer in dealing with K.W.'s testimony, she stated that the Hearing Officer did not, in fact, elevate K.W.'s evidence. She simply stated that a Hearing Officer cannot be criticized for his use of words when he is not a trained jurist. The Hearing Officer was simply stating that that was one factor he considered in determining credibility. He may have used inappropriate language but we cannot be overly critical of the language employed by him in his reasons.

58. She stated that the evidence supported a "pattern of similar behavior". The Hearing Officer was within his jurisdiction to make the findings of credibility that he did. He was not required to refer specifically to each and every potential inconsistency and deal with it. He was entitled to have an overall impression of the evidence before him and based on that impression, if reasonable, make findings of credibility as he did.

III. Decision

59. This is a difficult and complex case. Senior Constable Krug has been convicted of four counts of discreditable conduct. The facts in each case are quite different.

60. To our mind, the allegation pertaining to M.M. is not one that we feel warranted a finding of misconduct. At best, Senior Constable Krug simply pushed M.M. to one side in order to get access to a filing cabinet. This involved brief physical contact. While this might not be prudent or polite it is hard see it as "discreditable". That being said, if Senior Constable Krug had repeated this conduct in the face of a clear indication that it was not appreciated, we would have no hesitation in supporting a finding of misconduct. That was not the case here. Accordingly, with respect to this count, we would set aside the conviction.

61. The other three allegations are completely different matters. The evidence before the Hearing Officer was clear and convincing with respect to the complete and utter lack of judgment on behalf of Senior Constable Krug in dealing with these individuals. The Hearing Officer assessed the credibility and made findings that were not in favour of Senior Constable Krug. Those findings are reasonable and not void of evidentiary foundation.

62. The Hearing Officer must weigh all of the evidence before him. As stated in Ms. Bordeleau's submissions, it is the Hearing Officer alone who has the ability to hear and see the witnesses. It is impossible from a transcript to determine when a pause takes place in an answer to a question or when eyes might be diverted or nervousness shown by a witness. It is evident to this Commission that there evidence of a pattern of behavior exhibited by Senior Constable Krug that was unacceptable and inappropriate in the circumstances.

63. Further, it makes no difference that an individual complainant, as in the case of S.L., did not find particular words or conduct to be offensive. The test to be applied is not a subjective one. Rather, the question to be asked is whether or not the conduct of an officer can objectively be perceived as discreditable. See Burdett and Guelph Police Service (13 May, 1999, O.C.C.P.S.)

64. The Hearing Officer's decision is extensive and deals with all of the witnesses that appeared before him. He cannot be held to the standard of a Judge writing a decision. He is acting in the capacity of an administrative tribunal. We do not believe that he inappropriately assessed the evidence of K.W. or gave K.W. some "added credibility" that could not be applied in law. His use of these particular words was unfortunate but we accept the submission of Ms. Bordeleau that he was simply weighing the candor of K.W. by acknowledging the courage of her admission of prior sexual abuse and incest.

65. It is not the role of this Commission to re-hear a case and to substitute our decision if the decision of the Hearing Officer is reasonable and there is evidence to support his decision. We find that in this case, the assessment of credibility was supported by the evidence.

66. In coming to this conclusion we would point out that we agree with the assessment of the credibility of a witness as addressed in the decision of Mr. Justice O'Halloran in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A) which has subsequently been called the "O'Halloran test":

If a Trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with the purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes axiomatic that the appearance of telling the truth is but one of the elements that enters into the credibility of the evidence of a witness. Opportunity for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors is combined to produce what is called credibility… A witness by his manner may create a very unfavourable impression of his truthfulness upon the Trial Judge, and yet the surrounding circumstances in the case may point sizably to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. … in short, the real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

67. In particular, we cannot accept the position of the Appellant that he was simply "playing along" with Detective S.P. This explanation is simply not credible. The totality of the evidence leads one to the conclusion that K.W., S.L., S.P. and D.H. collectively testified as to a pattern of behavior of Senior Constable Krug that objectively would be viewed as inappropriate in any circumstances.

68. The inconsistencies in the evidence were not such as to have us find that the Hearing Officer's findings of credibility were void of evidentiary value. The totality of the evidence substantiates the findings of misconduct with respect to the incidents involving K.W., S.L. and S.P. and, in our opinion, the convictions must stand.

69. This Commission in previous cases has identified various matters that must take into consideration when determining penalty. Paul Ceyssens, at page 5-129 of "Legal Aspects of Policing" (Saltspring Island: Earlscourt Legal Press, 1994) summarized the factors which may be either mitigating or aggravating as follows:

70. Public interest;

71. Seriousness of the misconduct;

72. Recognition of the seriousness of the misconduct;

73. Employment history;

74. Need for deterrence;

75. Ability to reform or rehabilitate the police officer;

76. Damage to the reputation of the police force;

77. Handicap and other relevant personal circumstances;

78. Effect on police officer and police officer's family;

79. Management approach to misconduct in questions;

80. Consistency of disposition;

81. Financial loss resulting from unpaid interim administrative suspension;

82. Effect of publicity.

83. There is no requirement that any one factor be given more weight than another. The seriousness of the offence alone may justify dismissal. Aggravating factors can serve to diminish the weight of any mitigating factors.

84. Our role is to assess whether or not the hearing officer fairly and impartially applied the relevant factors or sentencing principles to the case before him or her. Where there is a manifest error in principle or the proper factors are not considered, we may vary a disposition. See Quintieri and Toronto Police Service (29 October, 2001, O.C.C.P.S.) However, this is not and should not be lightly done.

85. In this case, the Hearing Officer acknowledged and was clearly aware of the factors he had to consider when determining penalty. This was apparent when he referred to Williams and Ontario Provincial Police.

86. It is also worth noting that there are certain general principles that govern the provision of policing services. Section 1(4) of the Police Services Act R.S.O. 1990, c. P.15 as amended states:

1. Police services shall be provided throughout Ontario in accordance with the following principles …
2. The importance of respect for victims of crime and understanding their needs.

74. Further section 42(1)(c) of the Act imposes on every police officer the clear legal duty and responsibility for "assisting victims of crime".

75. There is little doubt that Senior Constable Krug's conduct represented a serious violation of these principles and a major abrogation of lawful duties. It is clear that when a police officer deals with a member of the public they should not engage in irrelevant questioning of a sexual nature, make inappropriate comments of a sexual nature and act inappropriately in a sexual way. This is particularly heinous when police officers are assisting vulnerable women who are reporting abuse.

76. Senior Constable Krug's actions were clearly disreputable, contrary to the public interest and of the sort that could only bring discredit upon the reputation of his police service and profession. His conduct was particularly offensive given his rank, seniority, length of service and the nature of his victims. The Hearing Officer properly identified these factors.

77. Senior Constable Krug has accepted no responsibility for his actions. Accordingly, he cannot expect the mitigation that such action warrants. There is no suggestion of handicap or management misconduct.

78. Further, the Hearing Officer took great pains to examine Senior Constable Krug's work history. While he does have some positive evaluations, it is clear that there is much support of the Hearing Officer's conclusion that overall "Constable Krug does not possess a good employment record."

79. Senior Constable Krug obviously has difficulties working with other officers, relating to the public or accepting direction and supervision. The evidence of Dr. Collins was compelling. There does not appear to be any realistic possibility to reform or rehabilitate this police officer. The Hearing Officer also addressed the issue of deterrence. He was not convinced that Senior Constable Krug would not repeat this type of misconduct. Neither are we.

80. Overall, we are satisfied that the Hearing Officer took into account the relevant factors and gave them the proper weight. His reasoning does not demonstrate the type of manifest error necessary for us to interfere with his conclusions.

81. In the circumstances, we find that dismissal is in the permissible range of dispositions and we would therefore deny the appeal against penalty.

DATED THIS 21st DAY OF JANUARY, 2003.

Barbara Morland Wellard Member, OCCPS

Orlando Zamprogna Member, OCCPS

Footnotes

1. 1Names have been modified to protect privacy.