Smith v. Toronto Police Service, 2003 CanLII 75469

ONTARIO CIVILIAN POLICE COMMISSION

DATE: March 6, 2003

FILE: OCPC-03-004

CASE NAME: DETECTIVE CONSTABLE LARRY SMITH AND DETECTIVE ELMER MANUEL AND THE TORONTO POLICE SERVICE

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

BETWEEN:

Detective Constable Larry Smith and Detective Elmer Manuel APPELLANTS

-and-

Toronto Police Service RESPONDENT

DECISION

Panel: G. Douglas Smith, Member Charles B. Rycroft, Member

Hearing Date: February 11, 2003

Hearing Location:

Appearances:

Gary Clewley, Counsel for the Appellants

George S. Monteith, Counsel for the Respondent

I. Introduction

1. This is an appeal from a conviction of one count of misconduct contrary to section 2 (1)(i)(iii) of the Code of Conduct found at O. Reg.123/98 as amended (the “Code”) and from a conviction of one count of misconduct contrary to section 2 (1)(c)(ii) of the Code, made against the Appellants by Superintendent (retired) Robert J. Fitches (the “Hearing Officer”) on March 30, 2001.

2. In addition Constable Larry Smith appeals from the sentence imposed by the Hearing Officer on July 18, 2001 of 6 days or 48 hours for the offence pursuant to section 2 (1)(i)(iii) of the Code and the sentence of 6 days or 48 hours time for the offence pursuant to section 2(1)(c)(ii) of the Code.

II. Background

3. Detective Constable Larry Smith and Detective Elmer Manual are long serving members of the Toronto Police Service. At the time of the alleged incident Detective Constable Larry Smith was a member of the Break and Enter Squad (‘the Squad”). At this time Detective Manuel worked at Intelligence Services Unit (“the Unit”) and was providing technical assistance to the Squad.

4. At the commencement of the hearing the parties consented to an agreed statement of facts as follows:

On August the 4th Detective Constable Smith started work with the Break and Enter Unit at 7:00 a.m. On August 4th Detective Manuel worked at Intelligence Services, the Unit to which he was attached. Detective Constable Smith accompanied Detective Manuel to the Honda dealership shortly after 6:00 p.m. This was in regard to the car in which the G.P.S. was later to be installed. They then went to Detective Manuel’s residence where they had dinner. They then went to the Centennial Arena in Markham, regarding Detective Manuel’s son. While there they spoke to Sergeant Brian Gottschalk, who they chanced to meet. Thereafter they went to the Unionville Arms in Markham, where by prior arrangement they met a Mr. Shearer. While there they each consumed an alcoholic beverage(s). During the evening, about 2048 and/or 2054, Detective Constable Pattison paged Detective Constable Smith. Detective Manuel phoned Detective Constable Pattison, he advised him that Detective Constable Smith was with him and they would be attending to the area of the subject motor vehicle later on in the evening. They then drove to the Corral in Oshawa. They each ordered an alcoholic beverage but left the premises before either received a beverage. During the course of the evening Detective Constable Smith received a page from Detective Constable Pattison. During the course of the evening Detective Manuel spoke with Detective Constable Pattison regarding the planned stakeout of the vehicle in question. At approximately 10:25 p.m., that night Detective Constable Manual received a page from Detective Constable Pattison. On returning the page he was advised that Detective Constable Hancox had been stabbed. Markham is located in York Region. Oshawa is located in Durham Region.

5. Although the above are the agreed statement of facts, it is clear on reading the transcript and upon hearing the submissions on behalf of the Appellants and the Respondent that on August 4-5, 1998 that members of the Squad were conducting a surveillance of an automobile belonging to a suspect.

6. The members of the Squad consisted of Detective Constables Geoff Hesse, Steve Pattison and William Hancox. The plan was to wait until the suspect retired for the night so that his vehicle could be moved and a surveillance device (G.P.S.) installed therein. The G.P.S. device was to be installed by Detective Manuel who was to be assisted by Detective Smith. A warrant had been obtained earlier for the purpose of installing the G.P.S. and as time was running short on the expiry of the warrant the officers decided to attempt the installation during the evening of August 4, 1998 or in the early morning of August 5, 1998.

7. The Squad sought and obtained permission to work the extra hours to complete the G.P.S. installation. It would appear that upon the completion of the day shift on August 4th, 1998 that the members of the Squad attended upon a variety of personal chores that had nothing to do with the installation of the G.P.S. Detective Hancox and Hesse went shopping for a baby crib, Detective Pattison went home and Detectives Smith and Manuel went to Detective Manuel’s home in Markham for dinner. Thereafter Detectives Manuel and Smith went to various locations and consumed alcohol as set out in the agreed statement of facts. During the course of the evening of December 4, 1998 Detective Manuel accompanied by Detective Smith attended meetings and inquires of a technical nature. These meetings and inquiries were associated with Detective Manuel’s work and in particular were with respect to receiving assistance in obtaining entry to the automobile which was the subject matter of the surveillance.

8. The other members of the Squad reassembled at a location near the residence of the suspect at approximately 8:00 p.m. Later that evening Detective Constable Hancox was stabbed and subsequently pronounced dead. Detectives Smith and Manuel drove straight from Oshawa to 42 Division and did not return to the scene of the surveillance on August 4th 1998 or on August 5, 1998.

The Hearing

9. The disciplinary hearing took place on February 22, 2001. At the commencement of the hearing the Hearing Officer read the charges to the officers. The charges against Detective Constable Manuel were as follows:

Detective Elmer Manuel you are alleged to have committed misconduct in that you did consume drugs or alcohol in a manner prejudicial to duty, in that you, except with the consent of a superior officer or in the discharge of duty, did consume or receive alcohol from any other person while on duty, contrary to Section 2(1) (i)(iii) of the Schedule Code of Ontario Regulation 123/98 and therefore, contrary to Section 74(1)(a) of the Police Services Act, R.S.O. 1990, as amended.

10. The particulars of this offence were as follows:

Being a member of the Toronto Police Service attached to Intelligence Services, you, while on duty, on the 4th day of August, 1998, without the consent of a superior officer, and not in the discharge of your duty, did consume alcohol at premises known as the Unionville Arms, Markham, Ontario and did receive alcohol for consumption at premises known as the Corral, Oshawa, Ontario.

11. In addition Constable Manuel was further charged as follows:

Detective Elmer Manuel you are further alleged to have committed misconduct in that you did fail to work in accordance with orders, or leave an area, detachment, detail or other Place of duty, without due permission or sufficient cause, contrary to Section 2(1)(c)(ii) of the Schedule Code of Conduct of Ontario, Regulation 123/98 and therefore, contrary to Section 74(1)(a) of the Police Services Act. R.S.O., 1990 as amended.

12. The particulars of this offence were:

Being a member of the Toronto Police Service, attached to Intelligence Services, you, while on duty, the 4th day of August, 1998, did leave your detail and place of duty without authority or permission and did enter the jurisdictions of York Region and Durham Region for purposes unrelated to your assigned detail and duties, to wit: attending your residence in Unionville, Ontario, a hockey arena in Markham, Ontario, premised known as the Unionville Arms in Markham, Ontario and premises known as the Corral in Oshawa, Ontario.

13. Detective Manuel was further charged as follows:

You are further alleged to have committed misconduct in that you wilfully or negligently made a false, misleading or inaccurate statement pertaining to official duties, contrary to Section 2(1)(d)(ii) of the Schedule Code of Conduct of Ontario Regulation 123/98 and therefore contrary to section 74(1)(a) of the Police Services Act. R. S.O. 1990, as amended.

14. The particulars of this offence were:

Being a member of the Toronto Police Service attached to Intelligence Services, you, on the 18th day of November, 1999, while being interviewed by Detective Sergeant Eugene Reilly and Detective Stephen Hulcoop of Internal Affairs of the Toronto Police Service did wilfully or negligently make a false, misleading or inaccurate statement pertaining to your official duties, to with: that on the 4th day of August, 1998, you had tried keys in a Honda motor vehicle which was the subject of surveillance by members of the Special investigation Services.

15. For brevity it is suffice to say that Detective Constable Larry Smith was charged with the same offences as Detective Manuel under Sections 2(1)(I)(iii) and 2(1)(c)(ii) of the Code. The particulars of these offences were essentially the same as those set out in the charges brought against Detective Manuel. Detective Constable Larry Smith, however was not charged with an offence pursuant to Section 2(1)(d)(ii) of the Code

16. Both Detective Manuel and Smith entered a plea of not guilty to all offences.

17. At the commencement of the hearing the agreed statement of facts were read into the record. A total of 13 witnesses including the Appellants testified. In addition 20 exhibits were received into evidence. On March 30, 2001 the Hearing Officer rendered his judgment in which he found Detective Constable Larry Smith and Detective Elmer Manuel guilty of the offences laid pursuant to Sections 2(l)(i)(iii) and 2(1)(c)(ii) of the Code. Detective Manuel was found not guilty with respect to the offence laid under Section 2(1)(d)(ii) of Code.

18. On July 18, 2001 the Hearing Officer passed sentence on the two officers. The disposition was as follows:

19. The Disposition in these matters will be as follows:

Consume Alcohol While on Duty 6 days or 48 hours time

Neglect of Duty 6 days or 48 hours time

20. These dispositions are separate and are not concurrent.

Issue

21. There is no dispute by the parties to the appeal that the only issue in question is whether the Appellants were on duty at the time of the alleged offences. All other elements of the offences are acknowledged as being present.

Appellant’s Positon

22. Mr. Clewley on behalf of the Detective Constable Larry Smith and on behalf of Detective Elmer Manuel challenged the findings of the Hearing Officer.

23. He argued that the Hearing Officer misapprehended and/or placed too little reliance upon the evidence of Detective Sergeant Douglas MacCheyne who was Detective Manuel’s superior. He argued that Detective Sergeant MacCheyne had testified that, at the relevant time of the alleged offence, that Detective Manuel was not on duty. He argued that the evidence of Detective Sergeant MacCheyne was un-contradicted and further submitted that of all of the witnesses called, Detective Sergeant MacCheyne, as the immediate boss of Detective Manuel, was in the best position to know whether or not he was on duty. He argued that the Hearing Officer essentially ignored this evidence and did not appreciate its significance.

24. Mr. Clewley further argued that the Hearing Officer erred in his analysis of the evidence of Staff Sergeant Chris Hobson, who was the superior (boss) of Detective Constable Larry Smith. He argued that although Staff Sergeant Chris Hobson authorized the Squad to work a double shift, that the evidence at trial did not conclusively prove when this second shift was to commence, with respect to Detective Constable Smith. He argued that in making his finding that the Hearing Officer formed an “impression” that it was the view of Staff Sergeant Hobson, that Detective Constable Smith was on duty at the relevant time. Forming an “impression” it was argued was not making a finding of fact based upon clear and convincing evidence.

25. It was further submitted by Mr. Clewley that the Hearing Officer made an error in relying on the sign-in sheets at the Unit where the Appellants were employed. He argued that the evidence surrounding the sign in sheets was ambiguous and could not provide any basis for reaching the finding of fact that the officers were on duty at the relevant time. Mr. Clewley argued that the Hearing Officer concluded that he was “unconvinced” that the sign-in sheets were either accurate or reliable, however, then proceeded to place reliance upon them in reaching the decision that the appellants were on duty at the relevant time.

26. In his submissions Mr. Clewley referred us to many pages of the transcript evidence in support of his arguments. In particular he referred us to the evidence of Detective Constable Geoffrey Hesse, Sergeant Brian Gottschalk, Staff Sergeant Doug Macheyne and the testimony of the Appellants.

27. He further argued that this was not a case decided upon the credibility of the witnesses. He conceded that if this was the situation, then the decision of the Hearing Officer would be entitled to the highest deference. He argued strongly that the Hearing Officer misapprehended the evidence before him and failed to give proper weight to the evidence of Detective MacCheyne, Detective Constable Smith and Detective Manuel whose evidence was unequivocal and clearly proved that the Appellants were not on duty. In this regard he argued that the Hearing Officer in lieu of relying on this un-contradicted evidence, drew inferences, based on “impressions” and “suggestions” from the evidence of other witnesses. As such Mr. Clewley argued that the Hearing Officer, could not make a finding that the appellants were on duty, based on clear and convincing evidence.

28. For these reasons Mr. Clewley requests that we overturn the finding of guilt and the penalty imposed on both Constable Larry Smith and Detective Elmer Manuel.

29. Detective Constable Larry Smith also appealed the sentence that was imposed upon him. Mr. Clewley argued that if we were to uphold the Hearing Officer’s finding of guilt against Detective Constable Smith that the sentence was far too severe. He argued that the evidence at the sentencing hearing established that Detective Constable Smith has enjoyed a distinguished career without blemish and as such the penalty was excessive and harsh. He argued that the penalty imposed should be reduced to a reprimand.

Respondent’s Position

30. Mr. Monteith on behalf of the Respondent argued that we should uphold the Hearing Officer’s decision.

31. Mr. Monteith acknowledged that the only issue to be decided upon, was whether the Appellants were on duty at the time of the incidents on August 4, 1998.

32. Mr. Monteith argued that the Hearing Officer’s decision was not void of evidentiary foundation. In this regard he disagreed with the position taken by Mr. Clewley with regard to the evidence of Detective Sergeant Douglas MacCheyne and Staff Sergeant Chris Hobson. He also disagreed with Mr. Clewley’s position that the Hearing Officer erred in relying on the sign in sheets at the Unit where the Appellants were employed.

33. On the contrary Mr. Monteith argued that the Hearing Officer neither misapprehended nor placed too little reliance on the evidence of Detective Sergeant Douglas MacCheyne nor did he err in connection with the evidence of Staff Sergeant Chris Hobson. He also argued that the Hearing Officer did not rely solely upon the sign in sheets in reaching his decision. He argued that Superintendent Fitches balanced all evidence introduced by all witnesses. In particular Mr. Monteith drew our attention to the transcript evidence of Staff Sergeant Christopher Hobson, Detective Constable Hesse and Sergeant Brian Gottschalk. Mr. Monteith also reviewed the transcript evidence of Detective Constable Larry Smith and Detective MacCheyne.

34. In conclusion Mr. Monteith argued that if we were to take all of the evidence lead at the trial as a whole, and were to give it proper consideration then we must conclude that the Hearing Officer did not err in his conclusions in finding the appellants guilty of misconduct. As a result he argued that the Hearing Officer’s decision was not void of evidentiary foundation.

35. With regard to sentence, Mr. Monteith, urged us to accept that the Hearing Officer imposed appropriate sentences on both of the Appellants. He drew our attention to the transcript of the decision of the Hearing Officer in that he:

36. Considered the seriousness of Detective Constable Smith’s misconduct. In particular he considered the fact the Officer Smith “appears to have taken advantage of the independence and violate the trust afforded to him by his superior officers”.

37. Felt the need for general deterrence in addition to specific deterrence. The Hearing Officer felt that the penalty sent a clear message that it is unacceptable for an officer to be absent from his or her work location without permission.

38. Felt a clear message had to be sent to other officers that consuming alcohol while on duty will not be tolerated by the Toronto Police Service. He stated that “Drinking alcohol while on duty is so offensive that it is truly not worthy of further comment.”

39. Mr. Monteith submitted that the sentence was a careful balancing between the need for general and specific deterrence however at the same time being aware of and taking into consideration Detective Constable Smith’s notations of commendable conduct and evidence of his personal and professional life.

40. Finally Mr. Monteith argued that given the seriousness of both of the offences and the need for both specific and general deterrence that the sentences imposed were not only proper and fitting but may indeed be considered lenient.

41. In his submissions Mr. Monteith not only referred us to the transcript evidence but also drew our attention to the following authorities: Constable Terry Allen and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.), Sergeant Richard Chapman and Nepean Police Service (1974), l O.P.R. 176 (O.P.C.), Constable David Deviney and Toronto Police (1999), 3 O.P.R. 1315 (O.C.C.P.S.), Superintendent Paul Gottschalk and Toronto Police Service (unreported, January 29, 2003,O.C.C.P.S.), Constable Edward Hewitt & Constable Clifford Devine and Toronto Police Service (1999), 3 O.P.R. 1372 (O.C.C.P.S.), Constable D. Reilly and Brockville Police Services (l997), 3 O.P.R. 1163 (O.C.C.P.S.), Re Trumbley et al. and Fleming et al (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2d) 570 (Ont. C.A.) and Constable Devon E. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.).

42. Mr. Monteith urged us to dismiss the appeal.

III. Decision

40. It is agreed by both the Appellants and the Respondent that for the officers to be found guilty of the offences for which they have been charged, that it must be proven on clear and convincing evidence that the Appellants were on duty at the relevant times. The Hearing Officer concluded that Detective Constable Larry Smith and Detective Elmer Manuel were on duty and as a result found the Officers guilty of the two allegations as noted.

41. This Commission has consistently summarized our role with respect to an appeal from findings of misconduct, which is clearly enunciated in this Commission’s decision in Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 at 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 the credibility of the witnesses, cannot be reasonably accepted.

The question to be asked in this case is, are the conclusions, of the adjudicator void of evidentiary foundation?

42. As a result our role is to determine whether or not the decision of the Hearing Officer was without evidentiary foundation or was based on a manifest error in principle or law.

43. We agree with the position taken by Mr. Clewley on behalf of the Appellants, that some of the language used by the Hearing Officer in reaching his decision was less than satisfactory. A decision must be based on clear and convincing evidence. As a result it is less than helpful when the Hearing Officer uses language as he did on page 313 of his decision stating that his conclusions were based on “distinct impressions” and findings of evidence that “suggest” a conclusion. We are not however prepared to overturn the Hearing Officer’s decision based solely on this unfortunate wording. The essential question is whether overall, the Hearing Officer’s decision was void of evidentiary foundation or based on a manifest error.

44. The parties to the hearing agreed upon a statement of facts that was made part of the record. In addition, the hearing was conducted over 2 days during which 13 witnesses were heard and extensively cross-examined. A number of exhibits were entered into evidence.

45. The Hearing Officer has the advantage of seeing the witnesses, and assessing their demeanor following which he can place the appropriate weight on the evidence in reaching his decision.

46. There was much evidence before the Hearing Officer to conclude on clear and convincing evidence that Detective Constable Larry Smith and Detective Elmer Manuel were on duty at the relevant times.

47. The Hearing Officer had before him the evidence of Sergeant Christopher Hobson that he was in charge of the Unit at the time in question and that he authorized the Unit to work a double shift (being two days in succession followed by a day off) for the purposes of installing a G.P.S device. There was further evidence by Staff Sergeant Hobson that he later reclassified the shift as overtime instead of a double shift. It is therefore clear from the evidence that both officers were paid for being on duty, either as a double shift or overtime, at the time in question.

48. The Hearing Officer had evidence from the notes of Detective Constable Smith that on the night of August 4, 1998 that he “was out with Detective Manuel, technical support, re work on subject’s vehicle”. The notes later state that he was “accompanying Detective Manuel to various locations re: keys for vehicles”. It is therefore clear that both officers at the time in question were undertaking police business.

49. There is further evidence from the notes of Detective Constable Smith that he had reported off duty at 5:00 a.m. and to “report off duty” meant that “you finish off your day’s work and go home”. We agree with the position of the Respondent that there would be no need to “report off duty” if the officer as he alleges never was on duty.

50. The Hearing Officer had evidence before him, that the Appellants during the evening of August 4, 1998 were using police vehicles and using gas paid for by the Service as they drove to various locations during the subject evening.

51. The Hearing Officer heard evidence that Detective Constable Smith received a page at approximately 2048 or 2054 hours from Detective Constable Pattison (one of the members of the Unit) in which Detective Constable Pattison asked “what are you guys doing, where are you and what’s going on”. We agree that in the context of that evening that the message clearly indicated that the Unit was on duty; that the rest of the Unit was at the site and there were concerns as to the whereabouts of the Appellants.

52. The foregoing is only some of the pertinent evidence upon which the Hearing Officer based his decision. Taking all of this into consideration we cannot conclude that the Hearing Officer’s decision was void of evidentiary foundation or based on a manifest error in principle. We are satisfied that there was sufficient evidence before the Hearing Officer to conclude that Detective Constable Larry Smith and Detective Elmer Manuel were on duty at the relevant time on August 4th, 1998. Having reached this conclusion there was no other finding available to the Hearing Officer than to find the officers guilty of the offences as charged, as none of the other elements of the offence were in dispute.

53. For these reasons we dismiss the Appeal as to the conviction of Detective Constable Larry Smith and Detective Elmer Manuel.

54. This leaves us with the matter of the penalty imposed upon Detective Constable Smith.

55. Detective Constable Smith has been employed by the Toronto Police Service since 1981. At the time of the hearing he was 44 years of age, was married for 22 years and had 2 children. It was clear from the evidence called that, until these allegations, he had an unblemished record with thirty-six notations of commendable conduct. The evidence also characterized Detective Constable Smith as a caring, loyal, entrepreneurial, industrious, competent and dependable person, both on and off duty.

56. The Hearing Officer in his decision on penalty acknowledged the foregoing. He however balanced these attributes with the seriousness of the misconduct. The Hearing Officer concluded that Detective Constable Smith had abused the independence and trust afforded to him by his superior officers. The Hearing Officer further felt the need not only to address specific deterrence but also felt there was a need to send a message of general deterrence.

57. We agree with the Hearing Officer’s decision that consuming alcohol while on duty is “so offensive that it is truly not worthy of further comment”.

58. Detective Constable Smith in his appeal argued that the penalty was excessive and harsh. We, however, were provided with no evidence or case material, considering the nature of the offences, to support of this position.

59. Overall we are satisfied that the Hearing Officer took into account Detective Constable Smith’s unblemished record and distinguished career, however he balanced this with the seriousness of the offences and the need to send both specific and general deterrence. We do not see in his decision as to penalty the type of manifest error that would make it necessary for us to interfere with his conclusions

60. We therefore deny Detective Constable Smith’s appeal against penalty.

DATED AT TORONTO THIS 6th DAY OF MARCH, 2003.

G. Douglas Smith, Charles B. Rycroft,

Member Member