Blowes-Aybar v. Toronto Police Service, 2003 CanLII 85810

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

BETWEEN:

Constable Juan Blowes-Aybar

APPELLANT

-and-

Toronto Police Service

RESPONDENT

DECISION

Panel: Peter Doucet, Member

Frederic Farrell, Q.C., Member

Hearing Date: Monday, February 24, 2003

Hearing Location:

Appearances:

Darragh Meagher, Counsel for the Respondent

I. Introduction

This is an appeal from a conviction of misconduct contrary to section 2(g)(i) of O. Reg. 123/98) made against Constable Juan Blowes-Aybar by Superintendent Margo Boyd (the “Hearing Officer”) on September 25, 2001.

II. Background

Constable Juan Blowes-Aybar joined the Toronto Police Service in June of 1991. He stands charged that, on May 28, 1997, he committed misconduct in that he “without good and sufficient cause made an unlawful or unnecessary arrest contrary to section 1(g)(i) of the Schedule Code of Conduct of Regulation 927, RRO 1990, as amended and therefore, contrary to section 56 of the Police Services Act.”
The particulars of the offence were that while on duty in the early morning hours of May 28, 1997, Constable Blowes-Aybar and his partner, Constable Wallace stopped a citizen, Mr. O[1], as he rode his bicycle westbound on Bloor Street West and Spadina Avenue for Highway Traffic Act infractions, as a result of which Constable Blowes-Aybar unnecessarily or unlawfully arrested Mr. O for the offence of Public Intoxication contrary to section 31(4)(a) of the Liquor Licence Act R.S.O. 1990, c. L.19 as amended.
That section of the Liquor Licence Act states:

31(4) No person shall be in an intoxicated condition,

(a) in a place to which the general public is invited or permitted access;

The section goes on to state in subsection (5):

31(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.

Hearing

This charge was heard on September 25, 2001 before Hearing Officer, Superintendent Margo Boyd, of the Toronto Police Service. It was learned during the course of the hearing that Superintendent Boyd had accepted a position at the Ontario Civilian Commission on Police Services (“OCCPS”). This issue was raised before Superintendent Boyd on December 3, 2001 by Mr. Harry Black, Q.C., Counsel for the Appellant. At that time, Mr. Black raised the issue of Reasonable Apprehension of Bias and suggested that Superintendent Boyd excuse herself. Superintendent Boyd declined to do so.
The evidence in the transcript is that Superintendent Boyd was not involved either with OCCPS or in negotiations while she was conducting the hearing as to misconduct and that she would not be involved in any matter at OCCPS dealing with matters which she had heard as a Hearing Officer. Superintendent Boyd further confirmed on, December 13, 2001, that her responsibilities would be in the Complaints Bureau, and totally separate and apart from appeals on decisions of Hearing Officers. She confirmed that she would not be a decision maker. This is found at page 278 of the transcript.
Superintendent Boyd found Constable Blowes-Aybar guilty of the charge of misconduct on September 25, 2001. At that same hearing, she acquitted him of the offence of discreditable conduct, and also acquitted his co-accused, Constable Wallace of discreditable conduct.
Superintendent Boyd found that Mr. O was not intoxicated within the meaning of the statute and found that his arrest was accordingly unnecessary or unlawful. She based this finding upon the evidence presented to her, and upon the credibility of the witnesses whom she observed give testimony.

III. Decision

Reasonable Apprehension of Bias

The test for Reasonable Apprehension of Bias is agreed by both Counsel to be set forth in Benedict v. Ontario (2001), 50 O.R. (3d) 147 (C.A.) where they state at page 152:

… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is “what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

Here, Superintendent Boyd moved from working for Toronto Police Service to working in a staff complaints capacity for OCCPS. She has no role in the hearing of this appeal, has no power of decision-making, has no connection with appeals at all, and works in the area of complaints which, on the evidence, is totally removed from the appeals process.
No reasonable and right-minded person, obtaining the required information, and viewing the matter realistically and practically, having thought the matter through, would conclude that there is any apprehension of bias, either on her part in hearing the matter in the first instance, or on the part of this tribunal sitting in appeal.

Appeal on the Finding of Misconduct

On the issue of an appeal from the finding of misconduct, our role is clearly set forth on page 1058 of Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), an oft quoted passage:

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

Absent an overriding error where the findings of fact are unreasonable or cannot be supported on the evidence, the appellate tribunal should not interfere - Norris v. Loranger (1998), 2 P.L.R. 493 (Ont. Bd. Inq.).
This is a difficult test to meet for the Appellant. The words “void of evidentiary foundation” clearly contemplate that appellate interference with evidentiary findings will be exercised sparingly.
Here, we cannot say that the adjudicator or Hearing Officer was void of evidentiary foundation. She performed a thorough analysis of the evidence, both documentary, video, and oral, and concluded, on the evidence, that the charge was made out on clear and convincing evidence. While it may be that another trier of fact could have come to different conclusions, that is not sufficient to interfere. We find that the Hearing Officer exercised her discretion properly, acted judicially, and arrived at a factual determination which was clearly within her purview and supported by an evidentiary foundation.
We therefore dismiss the Appeal from the finding of misconduct.

Appeal on Penalty

On the issue of penalty, however, the Hearing Officer made fundamental errors in both principle and law. She considered disciplinary matters from 1999 and 2000 in sentencing Constable Blowes-Aybar which clearly postdated this 1997 offence. She went on to find, that based on the principles of progressive discipline, an appropriate penalty here would be 12 days suspension. Clearly, these “antecedents” were in her mind. Clearly, these were not “antecedents” and should not have been considered. Mr. Meagher appropriately concedes both of these points.
The question then is “what is the appropriate penalty”? This must be considered as a first disciplinary matter for Constable Blowes-Aybar. He came before the Hearing Officer with a good record. Since joining Toronto Police Service in June of 1991 he received nine letters of commendation and six letters of public appreciation. He was lauded by Constable Crisanti, Constable Cumming, and Staff Inspector Fernandes, who described him as “conscientious, trustworthy, and a high work performer”. In his personal life he attained a Bachelor’s degree at the university level, excelled in tennis at the professional level, and assisted in community causes, most notably the Toronto Olympic bid.
Mr. Black has provided us with a number of decisions suggesting that the appropriate penalty here is a reprimand. Clearly, that is within the acceptable range of sentence. A reprimand is, however, at the low end of the scale of available penalties.
An unlawful or unnecessary arrest is a serious matter to the complainant, and to society as a whole. In this case, Mr. O was deprived of his liberty. He would not have been so deprived for any of the Highway Traffic Act offences with which he was charged on May 28, 1997. He spent the balance of the night in the bull pen of 14 Division, sleeping on the floor. It was a serious consequence indeed. We are of the view that a reprimand would not sufficiently speak to the aspects of sentencing which must be considered; namely:
Public Interest
Seriousness of the Misconduct
The Seriousness Continuum
Recognition of the Seriousness/Remorse
Employment History
Ability to Reform or Rehabilitate the Police Officer
Need for Deterence
Damage to the reputation of the Police Force
Handicap and Other Relevant Personal Circumstances
Effect on the Police Officer and his Family
Management Approach to Misconduct in Question
Consistency of Penalty
Effect of Publicity
Considering all of these factors, we find that the conduct in question was more than a momentary error in judgment. The conduct here was deliberate and continuing in nature. On more than one occasion, Constable Blowes-Aybar could have diffused this issue or made it right. He did not. His conduct escalated and became retaliatory. As a result, and based on all of the aforesaid considerations, we consider a penalty of 4 days suspension to be appropriate and we so direct.

DATED AT TORONTO THIS 7^th DAY OF MARCH, 2003.

Peter Doucet Frederic Farrell, Q.C.

Member, OCCPS Member, OCCPS

1The name of the complainant has been modified to protect privacy.