ONTARIO CIVILIAN POLICE COMMISSION
FILE: OCPC-03-024
CASE NAME: CONSTABLE ANDRE LICHTENFELD AND THE THUNDER BAY POLICE SERVICE
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Constable Andre Lichtenfeld
APPELLANT
-and-
Thunder Bay Police Service
RESPONDENT
DECISION
Panel: Peter J. Doucet, Member Joe Mavrinac, Member
Hearing Date: Friday, November 28, 2003
Hearing Location:
Appearances: Gary R. Clewley, Counsel for the Appellant Robert C. Edwards, Counsel for the Respondent Constable Andre Lichtenfeld, Appellant
I. Introduction
Constable Andre Lichtenfeld of the Thunder Bay Police Service was convicted of two counts of misconduct pursuant to S. 74 of the PSA. This conviction was before retired Superintendent Robert Fitches on February 20, 2003 at which time a disposition was also imposed.
The subject matter of this appeal is only with respect to the conviction of deceit, pursuant to s 2(1)(d) of the code of conduct.
Constable Lichtenfeld was convicted of providing a false, misleading or inaccurate statement pertaining to official duties in that he on May 30, 2002, while on duty, gave a statement to Constable Browczuk to the effect that his roof lights on his cruiser were on from an earlier traffic stop.
It was established at the lengthy hearing that Constable Lichtenfeld was driving his police cruiser northbound on James Street in thunder Bay approaching the swing bridge when, for no apparent reason, he activated his roof lights, accelerated, lost control of the vehicle and became involved in a single vehicle collision on the swing bridge which resulted in his cruiser being a “total loss” and which also caused damage to the swing bridge.
Following the collision, Constable Browczuk was dispatched to the scene and pursuant to his duties under the HTA, took a statement from Constable Lichtenfeld as to how the accident occurred. In the course of that statement Constable Browczuk inquired as to why the roof lights on the cruiser were activated, and it was in response to that statement that Contsable Lichtenfeld stated “It wasn’t until after I stopped I realized that I had left my roof lights on from an earlier traffic stop”.
The evidence of witnesses who saw the events leading up to the accident and the accident itself make this statement obviously untrue. The civilian witnesses who testified at the hearing all confirmed that the cruiser was proceeding along James street without roof lights activated until a point when the lights became activated.
At a later point in October of 2002 Constable Lichtenfeld of his own volition created a video ride along of the accident narrated by himself in which he proferred an alternate explanation of “The railway crossing right here is where I went through the bump that’s perhaps where a loose contact turned the roof lights on”.
Appellant’s Position
The appellant argues that the Hearings Officer erred in failing to detail the process by which he discounted the evidence of Dr. Tari, a psychologist called by the appellant at the hearing to suggest that the appellant was suffering from an impairment to his memory, thereby rendering his inaccurate statement not deliberate.
The appellant urges us to overturn the conviction on this basis, as well as upon the interpretation placed by the Hearings Officer upon the video statement of the appellant, and upon the use of the words “must have” as used by the Hearings Officer on page vi of his decision in relation to both statements.
The appellant argues that the Hearings Officer misapprehended the evidence, and fell short in his reasons of the standard required to demonstrate the process by which he analyzed the evidence and came to his conclusions.
Respondent’s Position
The respondent argues that the Hearings Officer applied the correct standards, analyzed the evidence appropriately, and although he may not have offered exhaustive detail as to the process of arriving at his conclusions, demonstrated through his reasons that indeed he did analyze the evidence, particularly that of Dr. Tari, and came to a reasoned conclusion with which we ought not to interfere.
The respondent reminds us of the standards of review set out in the oft quoted decisions of Williams and Carmichael, the essence of which are that we are not to second guess the decision of the Hearings Officer and are to interfere in limited cases where there can be no other determination than the conclusions of the Adjudicator cannot reasonably be accepted. We also ought not to interfere with his assessment of credibility of witnesses as it was he who had the benefit of seeing the witnesses, hearing their testimony, and assessing its weight or value. In summary, we ought not to lightly interfere with the discretion afforded a Hearings Officer, provided such discretion is exercised judicially.
III. Decision
While we agree with the able and persuasive argument of Mr. Clewley for the appellant that the decision of Superintendent Fitches could have been more detailed, particularly in his reasoning as to why he discounted much of the evidence of Dr. Tari, we are not persuaded that Superintendent Fitches’ conclusions cannot reasonably be accepted.
The evidence of Dr. Tari, frankly, was beyond the expertise of Dr. Tari. It was not supported by the evidence called at the hearing, and his theory of post facto contamination of the thought process of Constable Lichtenfeld by the view of others cannot stand with respect to the statement given to Constable Browczuk shortly following the accident when there was no contact between Constable Lichtenfeld and any other person who could have contaminated his memory.
Superintendent Fitches found that Constable Lichtenfeld knew why he turned on his roof lights and was deceitful in offering up explanations other than the truth. We agree. We find his conclusions supported in the evidence and find further that he was well within the proper exercise of his discretion to come to such conclusions.
For these reasons, the appeal is dismissed.
We feel it necessary to comment upon the conduct of the appellant and other officers of the Thunder Bay Police Service following the accident. The moving of the vehicle, the disconnecting of the battery cable, the failure to identify and interview witnesses at the scene, the failure to charge Constable Lichtenfeld under the HTA, all cast a shadow upon both the officers involved as well as the Thunder Bay Police Service.
Members of the public must ask what went on here, and speculate upon the charges which they themselves would have faced had they behaved as Constable Lichtenfeld behaved that day. Surely a member of the public, not privileged as a member of the Thunder Bay Police Service, would have been charged with either careless driving, possibly the more serious CCC charge of Dangerous Driving, and likely Public Mischief for the false statements. This says nothing of the tampering with physical evidence.
Police officers must be ever conscious of the special powers and great obligations imposed upon them by virtue of their office. With great power comes great responsibility, and in this case it appears that less than great responsibility was exercised. In fact, the conduct of the appellant was most disappointing and hardly becoming that of a police officer sworn to serve and protect.
We thank both counsel for their well reasoned and extremely capable presentations.
DATED THIS 9TH DAY OF DECEMBER, 2003.
Peter J. Doucet Member, OCCPS
Joe Mavrinac Member, OCCPS