Constable Vincent Mullholland v. Halton Regional Police Service, 2003 CanLII 75468

ONTARIO CIVILIAN POLICE COMMISSION

DATE:

March 25, 2003

FILE:

OCPC-03-008

CASE NAME:

CONSTABLE VINCENT MULLHOLLAND AND THE HALTON REGIONAL POLICE SERVICE

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

BETWEEN:

Constable Vincent Mullholland

APPELLANT

-and-

Halton Regional Police Service

RESPONDENT

DECISION

Panel: Frederic G. Farrell, Q.C., Member

Joe Mavrinac, Member

Hearing Date: Tuesday, October 8, 2002

Hearing Location:

Appearances:

Paul La Course, Agent for the Appellant

Ian D. Scott, Counsel for the Respondent

I. Introduction

1. Constable Vincent Mulholland appeals a finding of guilt on two counts of discreditable conduct contrary to section 1(a)(i) of Regulation 927 R.R.O.1990 as amended (the “Code”) by Superintendent Michael Kingston (the “Hearing Officer”) on July 23, 2001.

2. The Appellant seeks an order that:

1. both convictions be quashed; or in the alternative

2. a re-trial be ordered with a different Hearing Officer.

3. The Appellant does not appeal the penalties imposed.

II. Background

3. Vincent Mulholland had been a constable for approximately seventeen years at the time of the incidents that gave rise to the two counts of discreditable conduct. At the time of the events in question he was a member of the Halton Regional Police Service (the “Service”). The other officer involved, Constable Sjaarda, had been a constable with the Service since 1997.

4. It is important to note that the facts giving rise to the two charges are very much in dispute. On the evening of May 24, 2000 Constable Mulholland and Constable Sjaarda were both on patrol and in separate police cruisers. In response to an ambulance call for service concerning an alleged suicide attempt by a woman named A.C. in a motor vehicle, both officers proceeded to a plaza in the City of Burlington. Constable Mulholland arrived at the plaza followed by Constable Sjaarda. A.C.’s mother and ex-boyfriend also arrived. One of the ambulance attendants present was Gord Armes.

5. The two constables decided to apprehend A.C. under the Mental Health Act R.S.O. 1990, c. M.7 as amended. A.C. was placed on a stretcher and put in the ambulance. Constable Sjaarda was at A.C.’s head and Constable Mulholland was at the back of the ambulance. A.C. began to struggle and Constable Sjaarda attempted to handcuff her right wrist to the stretcher. In the struggle Constable Sjaarda had her finger dislocated. Both Constable Mulholland and Constable Sjaarda drove their respective cruisers to the hospital where the ambulance had taken A.C.

6. While proceeding to the hospital, Constable Sjaarda used her mobile work station to express concern with Constable Mulholland’s assistance in the ambulance during her struggle with A.C. Constable Sjaarda felt that Constable Mulholland had abandoned her and did not assist her to the degree necessary under the circumstances. According to Constable Sjaarda, Constable Mulholland responded that the sight of two women fighting was giving him a “chubby”. This message was forwarded by Constable Sjaarda to acting Sergeant Michael Larson. Sergeant Larson recalled the incident and indicated that the message was something to the effect that seeing two women fighting aroused Constable Mulholland in some way.

7. Constable Sjaarda also alleged that at the hospital she overheard A.C. tell Constable Mulholland that if you charge me I will tell your wife that you are sleeping with someone wherein Constable Mulholland’s face went white and that he responded that he also had a half a million dollar house and that A.C. couldn’t touch him. Constable Mulholland denied that A.C. used the words “if you charge me” and further denied that he had had any such relationship.

8. Prior to leaving the hospital, both officers discussed laying criminal charges against A.C. Constable Sjaarda was in favour of laying criminal charges and Constable Mulholland did not agree. Constable Sjaarda stated that Constable Mulholland suggested that no charges should be laid because they had responded to a suicide call and A.C. had been apprehended under the Mental Health Act. Constable Sjaarda further alleged that Constable Mulholland had spoken to her about the lack of criminal intent of A.C. physically hurting anyone. She also asserted that Constable Mulholland approached her at the station and had told her of a case in which a police officer had his front teeth kick out by a mental patient and the charge was thrown out.

9. She alleged that subsequently she received one or two messages per day from Constable Mulholland (a total of six messages) to meet for coffee which was out of character for him since he had never asked her out for coffee in the past. These requests stopped after she had laid an assault charge against A.C. Constable Mulholland denied that he had made these messages to her or taken any actions that might have given rise to the charge being made against him of attempting to dissuade her from laying criminal charges. He asserted that his discussions with her concerning the laying of criminal charges against A.C. were all made, in a professional manner, appropriately and not for personal reasons.

10. A.C.’s assault trial was set for December 14, 2000. Both Constable Mulholland and Constable Sjaarda were summoned to appear. Constable Sjaarda attended but Constable Mulholland did not. A.C. pleaded guilty and the matter was concluded. Later, Constable Mulholland would state that he had been delayed by personal reasons and weather conditions.

11. On December 19, 2000 at the District Burlington Detachment, both Constable Mulholland and Constable Sjaarda were in the report room. Constable Sjaarda made a series of remarks with respect to the A.C. incident and the failure of Constable Mulholland to attend at the court appearance. She used inappropriate language that angered Constable Mulholland. Constable Sjaarda went into the computer room that was adjacent to the report room. She was followed by Constable Mulholland who was upset over the remarks that had been made against him. A physical altercation took place between the two officers and a third officer upon entering the room had to tackle both of them in order to separate them resulting in all three of them ending up on the floor.

12. As a result of these two incidents Constable Mulholland was charged with the two counts of discreditable conduct. The essential allegations were that the Appellant:

1. attempted to dissuade Constable Sjaarda from laying criminal charges against A.C. between May 24, 2000 and July 1, 2000; and

2. committed an assault on Constable Sjaarda on December 19, 2000.

Hearing

13. Constable Mulholland appeared before the Hearing Officer and pled not guilty to the two counts of discreditable conduct. The hearing took place over several days with evidence being given by several witnesses both for the prosecution and the defence and numerous exhibits were filed.

14. The Hearing Officer expressly stated in his decision that for him to register a finding of guilt with respect to the charge of attempting to dissuade the laying of criminal charges that there would have to be clear and convincing evidence that Constable Mulholland attempted to get Constable Sjaarda to change her belief as to charging A.C. criminally and that there was some improper or illegal purpose for him to do so. While the Hearing Officer noted some inconsistencies in the testimony of Constable Sjaarda, he accepted her evidence that she believed Constable Mulholland was attempting to dissuade her from laying criminal charges against A.C. and that Constable Mulholland was persistent in attempting to influence her with respect to laying of charges against AC. He concluded based upon the totality of the evidence that Constable Mulholland was acting for personal and not strictly professional reasons. He specifically noted that Constable Mulholland went beyond what he believed was reasonable and normal convention and that he allowed personal factors and considerations to cause him to attempt to dissuade Constable Sjaarda from charging A.C. criminally.

15. With respect to the allegation of assault, the Hearing Officer found Constable Sjaarda’s testimony to be forthright. While she made several personal scathing insults at Constable Mulholland he pointed out that Constable Mulholland had testified that he had sought her out upon entering the computer room and that he was the aggressor. The Hearing Officer concluded based upon her testimony and that of others that Constable Mulholland had followed her into the computer room to have it out with her which resulted in him assaulting Constable Sjaarda.

16. The Hearing Officer concluded based upon the totality of the testimony that there was clear and convincing evidence before him to convict Constable Mulholland on both counts of discreditable conduct.

17. On September 10, 2001, the Hearing Officer imposed the following penalties:

1. on the finding of guilt for attempting to dissuade Constable Sjaarda from laying criminal charges against A.C. suspension of forty-eight hours without pay and participation in an ethics course of duration of not less than eight hours to be arranged by the Service; and

2. on the finding of guilt for assaulting Constable Sjaarda, forfeiture of sixty hours of pay and participation in an anger management counseling course of a duration of not less than eight hours to be arranged by the Service.

Preliminary Motion

18. As noted earlier, Constable Mulholland has appealed the finding of guilt with respect to the two counts of discreditable conduct. He does not appeal the penalties imposed. At the beginning of this proceeding, the Appellant brought a motion pursuant to section 70(5) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) for the introduction of additional evidence at this appeal i.e. fresh evidence.

19. The basis for the motion was that the Appellant’s defence was prejudiced as a result of non-disclosure of material information arising from certain documents that were as follows:

1. page 84 of Constable Sjaarda’s notes; and

2. page 2 of the ambulance attendant’s notes (the ambulance attendant being Gord Armes).

20. Both documents were missing from the original Prosecution brief.

21. Counsel for the Respondent did not oppose the admission of the above fresh evidence but stressed that it was his position that the documents in question would not have affected the outcome of the hearing in any event.

22. Under section 70(5) of the Act, the Commission is permitted to receive new or additional evidence on an Appeal “as it considers just”. The Act does not set out the factors to take into account. The principles established by Mr. Justice McIntyre in Palmer v. Her Majesty the Queen 1979 CanLII 8 (SCC), [1980], 1 S.C.R. 759 (S.C.C.) at page 775 provides us with some assistance. These principles are as follows:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

3. The evidence must be credible in the sense that it is reasonably capable of belief; and

4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

23. These principles relate to diligence, relevance, credibility and significant.

24. The fresh evidence on its face appears to fall within the above principles and there being no objection to their introduction by the counsel for the Respondent, the Commission grants the motion for the introduction of the fresh evidence. However, the Commission will address the impact of the fresh evidence on this Appeal later in this decision.

Appellant’s Position

25. Paul La Course made several arguments in support of the Appellant with respect to the finding of guilt on the two counts of discreditable conduct that can be summarized as follows:

1. Attempting to Dissuade Constable Sjaarda From Laying Criminal Charges

i. The evidence does not support the finding of guilt and is not clear and convincing.

ii. There were several inconsistencies in the evidence of Constable Sjaarda which inconsistencies were acknowledged by the Hearing Officer.

iii. The Hearing Officer placed little weight on the testimony of the witness B.C. (A.C.’s mother) as to her difficulty in remembering but accepted the evidence of Constable Sjaarda who also had difficulty in remembering.

iv. The Hearing Officer erred in finding Constable Sjaarda more credible than Countable Mulholland. He argued that Constable Sjaarda had no record of dates, times or even recall of dates with respect to Constable Mulholland allegedly approaching her to attempt to dissuade her from laying charges. He suggested that the reason for this was simply that there was no attempt to dissuade her from laying charges.

2. Assaulting Constable Sjaarda

i. The evidence did not support a finding of guilt.

ii. The evidence did not establish a physical altercation had occurred; there was no evidence to support the finding that the Appellant initiated the physical confrontation or that he assaulted Constable Sjaarda; the evidence demonstrated that it was Constable Sjaarda who initiated the verbal assault on the Appellant in the report room which led to a physical altercation in the computer room.

iii. The evidence of other witnesses supported the fact that it was Constable Sjaarda who was angry yelling and screaming and not the Appellant prior to the physical altercation.

iv. The evidence of Constable Simpson with respect to the altercation supported the Appellant’s position.

26. In support of these arguments Paul La Course drew our attention to the following case authority: R. v. W.D. (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).

Respondent’s Position

27. Ian D. Scott, counsel for the Respondent, rejected these suggestions. In summary, he argued:

28. While the Hearing Officer must make his decision based on clear and convincing evidence, the test at the Appeal level is a different one with respect to an assessment of the facts. He argued that the Commission must determine whether the Hearing Officer’s findings of fact are unreasonable or cannot be supported by the evidence. He asserted that the Commission, absent overriding error by the Hearing Officer should not interfere with his findings.

29. Mr. Scott pointed out that the role of the Commission was not to second-guess the Hearing Officer.

30. Mr. Scott argues that the question to be asked is whether the conclusions of the adjudicator are void of evidentiary foundation.

Mr. Scott further argued that when examining the decision of the Hearing Officer, the Commission must seek to determine whether or not the Hearing Officer made manifest errors, ignored any conclusions or relevant evidence or misunderstood or drew erroneous conclusions.

4. With respect to the credibility of the witnesses, he argued that the Hearing Officer was in the best position to make that assessment. Mr. Scott argued that the Hearing Officer having heard the evidence of Constable Sjaarda and Constable Mulholland chose to accept the evidence of Constable Sjaarda. He pointed out that the Hearing Officer in his decision carefully summarized the evidence of all witnesses and analyzed the evidence that he heard at the Hearing.

Mr. Scott acknowledged that while several facts were in dispute, the Hearing Officer weighed the conflicting evidence and came to his own conclusions giving reasons for same.

5. Mr. Scott requested that the Commission confirm the decision of Superintendent Michael Kingston that the Appellant was guilty of two counts of discreditable conduct and that the Commission dismiss the Appeal.

6. In support of these arguments Counsel for the Appellant drew our attention to the following cases: Norris v. Loranger (1998), 2 P.L.R. 493 (Ont. Bd. Inq.), Williams and O.P.P. (1995), 2.O.P.R. 1047 (O.C.C.P.S.), Favretto and O.P.P. (13 February, 2002, O.C.C.P.S.) and Armstrong and Peel Regional Police (18 July, 2002, O.C.C.P.S.)

III. Decision

29. Constable Mulholland was charged and found guilty of two counts of discreditable conduct by the Hearing Officer on July 23, 2001. The two counts of discreditable conduct consisted of attempting to dissuade Constable Sjaarda from laying criminal charges against an individual and committing an assault against Constable Sjaarda.

30. The Hearing Officer imposed the following penalty:

1. On the charge of attempting to dissuade Constable Sjaarda from laying charges, a suspension without pay for forty-eight hours and participation in an ethics course of a duration of not less than eight hours to be arranged by the Service.

2. On the charge of assault against Constable Sjaarda forfeiture of sixty hours off in order to participate in anger management counselling of a duration of not less than eight hours to be arranged by the Service.

31. The Commission has been asked to intervene only with respect to the conviction. There is no appeal of the penalty.

32. It is important to understand the role of the Commission in such matters. The powers of the Commission, on any appeal, are set forth under section 70(6) of the Act that provides as follows:

70(6) The Commission may confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police or board, as the case may be.

33. It should be noted that part of the relief sought by the appellant (in the alternative) was an order that there be a re-trial with a different Hearing Officer. Under section 70(6) of the Act as set forth above, the Commission can confirm, vary or revoke the decision or substitute its own decision. However, we have no authority to order a re-hearing.

34. Our authority, while statutory in nature, is guided by relevant prior decisions of the Commission. As has been noted in the often sited case Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) at page 1058:

Our role or function in such matters is not to second-guess the decision of the adjudicator. In certain limited cases it would be open to us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the adjudicator, as to [whether] the credibility of witnesses, cannot be reasonably accepted.

The test can be summarized as follows “are the conclusions of the adjudicator void of evidentiary foundation?”

35. The foregoing test and the principles annunciated in the Williams case have been applied in many subsequent cases brought before the Commission, some of which are as follows:

1. Deviney and Toronto Police (10 February, 1999, O.C.C.P.S.);

2. Mowers and Hamilton-Wentworth Regional Police (18 March, 1999, O.C.C.P.S.);

3. Lewin and Toronto Police Service (23 July, 2001, O.C.C.P.S.);

4. Gregg and Midland Police Service (11 December, 2001, O.C.C.P.S.); and

5. Favretto and Ontario Provincial Police (13 February, 2002, O.C.C.P.S.).

36. It is also a well established principle and was specifically stated in Besco and Peel Regional Police Service (5 October, 2001, O.C.C.P.S.) at page 5 that the Commission like any other Appellant authority or body should only intervene if the presiding Officer “has made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence or drawn erroneous conclusions from it”. In addition, the Commission in Williams and the Ontario Provincial Police at 1058 (reiterated in Besco and Peel Regional Police Service at pages 5-6) stated the following “Matters of credibility and findings of fact are clearly within the Hearing Officer’s domain. Only in exceptional cases where the reasoning is self evidentiary wrong, contains clear error or cannot reasonably be accepted will the Commission interfere with conclusions made by the Hearing Officer on such matters”.

37. The issues of the appropriate standard or burden of proof to be met was addressed in Carmichael and Ontario Provincial Police (21 May, 1998, O.C.C.P.S.). The Commission specifically stated at page 7:

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 the 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 or value.

38. Having set forth the relevant statutory powers of the Commission and having outlined the relevant principles that have been established in prior decisions, it can be stated that our role or function is not merely to substitute our opinion for the decision of the Hearing Officer. In order to determine whether or not the above criteria has been satisfied, we must ask the question “Are the conclusions of the Hearing Officer void of evidentiary foundation. In conjunction with this established test, we must bear in mind the various well-established principles in the relevant case authorities as set forth above.

39. We heard the submissions of both Mr. La Course for the Appellant and Mr. Scott for the Respondent and thoroughly reviewed the materials, transcripts and exhibits filed to support their position. We have carefully reviewed and considered the decision and the reasoning process of the Hearing Officer in reaching his findings of guilt on the two charges of discreditable conduct. The hearing took place over several days. The Hearing Officer heard direct testimony from several witnesses most of who were cross-examined. The Prosecution presented seven witnesses and the defence presented six witnesses. Most of the witnesses were police officers and as such were familiar with testifying in a judicial setting.

40. We also heard evidence from both Constable Sjaarda and Constable Mulholland. Being the subject of cross-examination, the truthfulness of each witness and the evidence they provided was tested. The Hearing Officer had the best opportunity to hear and evaluate each witness during their examination in chief and were applicable in cross examination. In his decision the Hearing Officer specifically summarized the evidence of each witness and made direction reference to their testimony in his decision. Clearly, the Hearing Officer was in the best position to hear what was said by each witness, how they said it and to observe their demeanour throughout the hearing.

41. The Hearing Officer also in his decision outlined the fact situation, commented on the differences in the manner in which both Constable Mulholland and Constable Sjaarda testified and pinpointed the facts that were in dispute with respect to the two charges.

42. We need to examine his reasons for the finding of guilt with respect to both charges and apply the appropriate test and principles as set forth above.

43. With respect to the allegation of attempting to dissuade Constable Sjaarda from laying criminal charges, the Hearing Officer made it clear that in order to make a finding of guilt there would have to be clear and convincing evidence that Constable Mulholland both attempted to dissuade Constable Sjaarda to change her belief as to the laying of criminal charges and that there had to be some improper or illegal purpose for so doing. The Hearing Officer further recognized that this case depended to a large extent on credibility since many of the facts central to the key issues were in dispute and the testimony of Constable Mulholland and Constable Sjaarda was in direct conflict. There was also an absence of any independent collaboration on many issues.

44. Having reviewed the evidence and the exhibits filed with respect to these allegations, the Hearing Officer concluded that the testimony of Constable Sjaarda was more credible than Constable Mulholland. He concluded that she believed that Constable Mulholland was attempting to influence her to not lay criminal charges against A.C. based upon the following facts arising from her testimony, a belief that developed from some of the following incidents:

1. The reluctance to be involved in the hands-on dealings with A.C. in the ambulance and at the scene;

2. The implied threat at the hospital against Mulholland to disclose if A.C. was charged:

3. The out of character attempts to meet for coffee, which stopped once charges were laid;

4. His giving reasons not to charge A.C. at the hospital then meeting with her to discuss the case in the station a few days later; and

5. His statement to her about a police officer who had his teeth kicked out by a mental patient and the charge was thrown out.

45. While Constable Mulholland denied attempts to dissuade Constable Sjaarda, the Hearing Office chose to believe her testimony. As we have stated earlier, issues of credibility are in the clear domain of the Hearing Officer. Our role or function is not to second-guess the Hearing Officer. The Hearing Officer outlined both the testimony of Constable Mulholland and Constable Sjaarda based on the totality of the evidence given and he chose to accept Constable Sjaarda’s testimony on these critical points. He based his decision on the evidence as presented.

46. While he did note that there were some inconsistencies in her testimony, overall he concluded that her testimony was more trustworthy and preferable to the testimony of Constable Mulholland. Upon the totality of the evidence, the Hearing Officer concluded that Constable Mulholland was attempting to dissuade Constable Sjaarda from laying criminal charges for personal not professional reasons. Based upon our review of the Hearing Officer’s decision we are satisfied that his decision was not void of evidentiary foundation and that his reasoning process was appropriate and sound.

47. With respect to the other charge of discreditable conduct i.e. the assault on Constable Sjaarda, the Hearing Officer also appreciated that in order to register a conviction against Constable Mulholland he would have to make a finding of guilt based upon clear and convincing evidence. As with respect to the other charge, credibility of the testimony of both Constable Sjaarda and Constable Mulholland was a key issue. The Hearing Officer heard evidence from several other officers. This evidence was carefully reviewed in his decision. Some of the evidence of the other officers he considered to be relevant, some of no value and some of little value based on weight and their degree of neutrality. This was outlined in his decision. He reviewed the testimony of Constable Sjaarda and concluded that her testimony was forthright, natural and convincing and he specifically noted that at times she was reluctant, hesitant and uncomfortable giving evidence against Constable Mulholland.

48. He acknowledged that both of them blamed the other for starting the altercation. Constable Sjaarda had testified that Constable Mulholland had advanced towards her, she put her hands up, he then grabbed her in the area of her collar causing her to choke. On the contrary, Constable Mulholland had testified that he was compelled to confront her about her comments wherein she jumped out of her chair, lunged at him and grabbed him by the throat. He reviewed the testimony of Constable Mulholland and concluded that his testimony was strong and emphatic and he made a specific reference to the fact that Constable Mulholland admitted in his testimony that he had been the aggressor in the incident.

49. The Hearing Officer accepted the evidence of Constable Sjaarda over that of Constable Mulholland which conclusion he reached based upon the totality of testimony given at the hearing. Based upon the foregoing he concluded that he had clear and convincing evidence to register a conviction against Constable Mulholland with respect to the charge of assault.

50. As previously stated, matters of credibility are within the Hearing Officers domain and the Commission should not intervene with his conclusions except where his reasoning is self evidentiary wrong, contains clear error or cannot reasonably be accepted. Our role is not to second-guess his decision or substitute our own opinion. His decision was well written and his conclusions reached were reasonable given the evidence presented. We have concluded that his decision was not void of evidentiary foundation. Accordingly, we believe that he did not make any manifest error, nor did he ignore conclusions or relevant evidence nor did he misunderstand the evidence or draw erroneous conclusions from such evidence with respect to both counts of discreditable conduct. His decision was reasonable and sound.

51. Now, we must deal with the issue of the effect of the admissions of the fresh evidence on the appeal. Given our decision with respect to the Appellant’s motion to accept fresh evidence, would the fresh evidence have a significant effect on the decision of the Hearing Officer if it had been disclosed at the hearing to the extent that it would have resulted in a dismissal of the charges. The fresh evidence consisted of the following:

1. Page 84 of Constable Sjaarda notes were missing from the prosecution brief the notes contain the following reference “at hospital susp looked at Vinny and said Mulholland right? (Vinny had no name tag) remember? (some girls name) I’m going to tell your wife you were sleeping with her ha ha ha).

It should be noted that while page 84 was not in the prosecution brief, counsel for the Appellant at the hearing had it in his possession and the Appellant also had knowledge of its contents.

2. The other piece of fresh evidence was page 2 of the ambulance attendant’s statement (Gord Armes) he was unable to attend at the hearing. The statement included the line “the patient (referring to A.C.) was handcuffed to each side bar (of the stretcher).

52. Mr. La Course argued that the failure of the prosecution to include these documents that he considers critical in the disclosure brief filed in evidence before the Hearing Officer seriously and significantly comprises the Appellant’s ability to defend himself at the hearing.

53. He argues that the Appellant has been irreparably prejudiced to his defence of the allegations of misconduct.

54. Counsel for the Respondent argued that the fresh evidence should not lead to a successful appeal. He stated that Appellant Courts do not automatically overturn a conviction without asking the following question: Has the Appellant satisfied the court that there is a reasonable probability that had there been proper disclosure, the result might have been different? He specifically refers us to R v. Peterson (1996), 1996 CanLII 874 (ON CA), 106 C.C.C. (3d) 64, (Ont. C.A.). He asserted that fresh evidence failed to disclose any new potential evidence that would probably have affected the outcome of the hearing.

55. As far as page 2 of the ambulance attendant’s notes were concerned, he argued that this was the only piece of disclosure not available to the Appellant at the hearing and its value merely promoted the theory that the Appellant did help secure A.C. to the stretcher by passing his handcuffs to Constable Sjaarda. He concluded that there was no reasonable probability that the outcome of the hearing would have been different.

56. In addition to reviewing this motion brief of both the Appellant and the Respondent, we particularly reviewed the case of R v. Peterson. At page 83 of the judgment of S.A. Osbourne it stated:

Thus, the critical question is, given the nature of the undisclosed statement; might the non disclosure of the new allegations have affected the result of the trial? And further in my view, the materiality of the non disclosure should be considered and measured in some way or the materiality of the errors said to have been made by counsel at trial in cases where the Appellant contends that he was denied the affective assistance of counsel at trial. The courts core concern in both cases is whether there has been a miscarriage of justice.

57. Accordingly, the Commission believes that in order to succeed the Appellant must establish that the non disclosure would have affected the result of the trial to such an extent that there has been a miscarriage of justice. This is therefore the test to be applied.

58. The facts are that page 84 of Constable Sjaarda’s notes while not in the prosecution brief were in the possession of counsel. Moreover both the content of page 84 of Constable Sjaarda’s notes and page 2 of the ambulance driver’s notes were not of significant weight when matched against the weight of all of the other evidence which the Hearing Officer considered as set forth in his decision. We believe that this fresh evidence would not have affected the result of the hearing nor would its absence equate a miscarriage of justice.

59. Accordingly, the conviction both with respect to the count of attempting to dissuade the laying of criminal charges and the assault must stand. Therefore, the Commission dismisses the Appeal.

DATED AT TORONTO THIS 25th DAY OF MARCH, 2003.

Frederic G. Farrell, Q.C. Joe Mavrinac

Member, OCCPS Member, OCCPS