Constable Meichland Blackburn v. Niagara Regional Police Service, 2003 CanLII 85798

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

Constable Meichland Blackburn APPELLANT

-and-

Niagara Regional Police Service RESPONDENT

DECISION

Panel: Sylvia Hudson, Vice-Chair Barbara Morland Wellard, Member Peter J. Doucet, Member

Hearing Date: August 26, 2003

Hearing Location:

Appearances: Ernest J. Guiste, Counsel for the Appellant Woodward B. McKaig, Counsel for the Respondent

I. Introduction

Facts

1. This is an appeal by Constable Meichland Blackburn against both of his finding of guilt as well as penalty issued by Hearing Officer, Superintendent J. Wolfe (retired) on December 5, 2002.

2. Constable Blackburn was charged with discreditable conduct contrary to section 2(1)(a)(ix) of the schedule Code of Conduct of Regulation, 123/98 of the Revised Regulations of Ontario in that he was found guilty of a criminal offence punishable upon summary conviction and thereby did commit misconduct pursuant to section 74(1)(a) of the Police Services Act, R.S.O. 1990, c. P. 15 as amended.

3. The facts are very simple. The Honourable Mr. Justice J. R. Morgan convicted Constable Blackburn on June 11, 2002 at Oshawa, Ontario of the offence of dangerous driving contrary to section 249(1)(a) of the Criminal Code of Canada. As a result of that conviction, Justice Morgan sentenced him to thirty (30) days in jail.

II. Background

4. Constable Blackburn has appealed the decision of Justice Morgan to the Ontario Superior Court of Justice and that appeal had not yet been heard, as of the date of argument of this matter before us.

5. The dangerous driving conviction arises out of events which took place on Highway 401 in Hamilton Township, County of Northumberland in the Province of Ontario on October 27, 1997, when Constable Blackburn was driving his own motor vehicle while off duty and out of uniform. In essence, he became involved in a road rage incident with a civilian Ms. L. and Justice Morgan found as a fact that Constable Blackburn menaced her on the road by following her closely, by passing her and then pulling in front of her and slowing his vehicle, by again passing her and pulling in front of her and then completely stopping both his and her vehicle, by getting out of his vehicle and approaching her vehicle, and by banging on her window and otherwise attempting to stop her.

6. At the Police Services Hearing before Superintendent Wolfe, Constable Blackburn essentially set out to argue that things happened differently then found by Justice Morgan at the criminal trial. He attempted to explain away his conduct suggesting that he was acting properly and that it was Ms. L. who acted improperly by, among other things, refusing to let him pass, changing lanes in front of him, and going behind him tapping his rear bumper with her front bumper.

7. Superintendent Wolfe allowed Constable Blackburn to testify fully as to his version of what he believed took place on Highway 401 on October 27, 1997 and allowed him to call whatever evidence he chose to call. At the hearing before Superintendent Wolfe, Constable Blackburn chose to call no evidence other than his own testimony and offered nothing else in support of his contention of what took place.

8. Superintendent Wolfe indicated that he was not prepared to re-hear or re-try the issues that were before Justice Morgan; he found that the conviction itself was sufficient to support the charge of misconduct, and found Constable Blackburn guilty of the offence that was before him under the Police Services Act.

9. As a result of convicting Constable Blackburn, Superintendent Wolfe went on to deal with penalty and imposed the penalty of dismissal.

Position of the Appellant

10. Constable Blackburn argues that the Hearing should have not proceeded and should have been held in abeyance until the appeal of the conviction by Justice Morgan was dealt with in Superior Court. In his Factum, he offers no law upon which to base this argument and when his counsel Mr. Guiste was asked by this tribunal for the authority upon which he based such a submission, he was not only unable to provide authority but actually refused to do so, stating that it was not important.

11. The second position the Appellant argued as to conviction is that despite the conviction, Superintendent Wolfe should have accepted Constable Blackburn’s theory of what took place on the 401 on the evening in question, and that despite the registering of a conviction and the clear wording of section 2(1)(a)(ix) of the Schedule Code of Conduct and the Regulations, the Hearing Officer should have somehow not convicted Constable Blackburn because he offered an alternate explanation even in the face of a conviction.

12. Constable Blackburn argues that he was not given a fair hearing although when asked what other evidence he wanted to call or what things he wished to introduce that he was not permitted to call or introduce, he was unable to provide any examples.

13. He complains that the Hearing Officer gave no weight to the evidence that Constable Blackburn, himself, put before the Hearing Officer.

14. Constable Blackburn also appeals against penalty. He argues that because he has offered an alternate explanation of what took place on the evening in question on the 401, which explanation he suggested should have been accepted by the Hearing Officer, that since there was no damage to property and no injury to persons that there should be a reprimand.

15. On both the hearing before Superintendent Wolfe, as well as the appeal before this tribunal, counsel for Constable Blackburn made reference to a decision of McVeigh, apparently rendered March 7, 1995. Despite making reference to it before Superintendent Wolfe and again before this tribunal, counsel for Mr. Blackburn did not file a copy of the decision and in fact filed only one decision in support of his entire appeal that being the decision of Mahood and Hamilton-Wentworth Police Service, a June 5, 1975 decision of the predecessor to this tribunal.

Respondent’s Position

16. It is the Respondent’s position that Superintendent Wolfe allowed the Appellant a full and fair hearing. He allowed him to testify, he allowed him to call whatever evidence he wanted to call, and the Appellant himself chose to do nothing other than to testify and give essentially the same version of the facts that he gave at his criminal trial, which version of facts was rejected by the trial judge and found to be incredible.

17. The Respondent indicates that the Appellant continues throughout to exhibit a lack of remorse for his actions, that he continues to refuse to accept responsibility for his actions, and refuses to admit or acknowledge the seriousness of his actions. The Respondent expresses some great concern with respect to that portion of the Appellant’s testimony at the Police Services hearing that courts should treat police officers more leniently than the general public.

18. The Respondent properly reminds us of our role and function in an appeal. That is most appropriately set forth in the off quoted passage from 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 witnesses, cannot be reasonably accepted.

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

19. We are reminded that we should only intervene if the Hearing Officer made a manifest error, ignored conclusive relevant evidence, misunderstood the evidence or drew erroneous conclusions from it.

20. We are also properly reminded that we should only intervene if the Hearing Officer’s decision was without evidentiary foundation or demonstrated a manifest error in principle.

21. The Respondent also reminds us that we do not have the power to order a new trial as the Appellant has requested. Our powers are limited under section 70(6) of the Police Services Act.

22. The Respondent also reminds us properly that on an appeal as to sentence, in order to be successful the commission must find that there has been a manifest error in principal or that the relevant factors in assessing penalty were ignored. We should not lightly interfere with penalties imposed by Hearing Officers unless one of these errors have been committed. The Respondent properly outlines in his Factum, the relevant factors in assessing penalty and we not need repeat them here, as they are well known.

23. With respect to the issue of proceedings before Superintendent Wolfe being stayed, the Respondent draws our attention to section 69(16) of the Police Services Act and its predecessor of section 60(11) of the prior version of the statute, which provide that disciplinary proceedings involving criminal charges should only be stayed if Crown counsel so requests. There was a letter from the Crown Attorney to the contrary. It was the wish of the Crown Attorney that the disciplinary proceedings go ahead.

III. Decision

24. There was no reason to stay the disciplinary proceedings simply because Constable Blackburn appealed his conviction. It is common ground, and is conceded properly by counsel for the Respondent, that if the Ontario Superior Court of Justice in its wisdom decides to overturn the conviction upon which the disciplinary conviction was founded, the disciplinary conviction will be automatically set aside. The only foundation of the disciplinary conviction is the criminal conviction of dangerous driving and obviously the disciplinary conviction would not stand if the Ontario Superior Court of Justice overturns the finding of guilt on dangerous driving.

25. As the Crown Attorney did not request that the disciplinary proceedings be stayed under section 69(16) there was no reason to stay those proceedings, as there was no prejudice to Constable Blackburn. The outcome of his criminal appeal will effectively determine the net result of his disciplinary proceedings. If he is unsuccessful on his criminal appeal then the disciplinary conviction stands. If he is successful on his criminal appeal then the disciplinary conviction is over.

26. We accept the submissions of the Respondent as to our role and function on an appeal from a disposition. Here there was no manifest error on the part of the Hearing Officer and in fact we find no errors at all on the part of the Hearing Officer. He allowed Constable Blackburn to present whatever evidence he wished and quite properly stated that he would not get into the issues of credibility as they had already been decided by Justice Morgan in the criminal trial and would not re-hear the criminal trial. He was entitled to base his finding of misconduct solely upon the criminal conviction and needed nothing more than that conviction. Constable Blackburn’s evidence was found to be incredible and unbelievable by the criminal trial judge, and his attempt to provide yet the same explanation once again before Superintendent Wolfe made it no less incredible and no less unbelievable. Superintendent Wolfe was quite entitled to find as he did.

27. We do not find any evidence that there was any unfairness in the hearing and see no reason to interfere with the conviction at all, and we accordingly dismiss the appeal as to conviction.

28. With respect to penalty, we again accept the submission of the Respondent as to the standard of review on appeal. Superintendent Wolfe in his decision went exhaustively through all the relevant factors to be considered when assessing penalty and exercised his discretion appropriately. He made no manifest errors in principal, nor did he misapprehend any of the evidence. He had a range of penalties available to him, one of which given the seriousness of the conduct of Constable Blackburn, as accepted by Justice Morgan, was dismissal. It is not for us to substitute what we might have done had we been the Hearing Officer but it is only for us to interfere if there has been a manifest error in principal or if there were a failure to consider the relevant factors in assessing penalty, neither of which took place here.

29. We accordingly dismiss the appeal as well with respect to penalty.

DATED THIS 17^TH DAY OF SEPTEMBER 2003.

Peter J. Doucet Member

Sylvia Hudson Vice-Chair

Barbara Morland Wellard Member