ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
and Abbott,
REASONS FOR DECISION
SELWYN PIETERS
Appellant
TORONTO POLICE SERVICE, DETECTIVE CONSTABLE MARK DENTON AND DETECTIVE CONSTABLE MICHAEL ABBOTT
Respondents
Presiding Members:
Doug Smith, Member
E.E. Kelly Culin, Member
Appearances:
Selwyn Pieters, Appellant
Harry Black, QC, Counsel for Respondent Detective Constable Mark Denton
Gary Clewley, Counsel for Respondent Detective Constable Michael Abbott
Hearing Dates: January 10, October 24, November 5, 2002
This is an appeal pursuant to sections 70(1) and (3) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) from a decision of Superintendent Edwin Hoey (the “Hearing Officer”) made on September 28, 2000.
That decision was that charges of misconduct against Detective Constable Denton (one count of insubordination and one count of discreditable conduct) and Detective Constable Abbott (one count of insubordination) contrary to O.Reg. 123/98 (the “Code”) be dismissed because they had not been proved on clear and convincing evidence.
Background:
This matter arises from an event of a few moments duration that occurred at approximately 4:30 p.m. on Monday, March 2, 1998, at 135 Rose Avenue in Toronto. It took place on the 14th floor of an apartment building at this address. This is where the Appellant, Selwyn Pieters, resides.
At the time of this incident, Detective Constables Denton and Abbott, accompanied by Constable Peter Duncan, were investigating a drug trafficking matter and had executed a search warrant at apartment 1414. They were not in uniform. Upon exiting the apartment and proceeding towards the elevator, the officers met an unknown man who exited the elevator and was walking in the direction of apartment 1414. That man was Mr. Selwyn Pieters.
The officers observed that the man was entering the apartment across the hall from number 1414. Mr. Pieters confronted the officers. He wanted to know who the men were because he did not know them and he had seen them looking at him as he was putting his key in the lock of the door to his apartment.
Events quickly became confrontational. The detectives advised Mr. Pieters that they were police officers. It is alleged that identification was requested, but not shown and that Detective Constable Denton stuck his middle finger in the air in a gesture to Mr. Pieters as he departed. Mr. Pieters acknowledges that he shouted, may have used obscenities and was speaking in a very authoritative voice. Mr. Pieters returned to his apartment and placed a call to 9-1-1.
He was subsequently advised that the men he had confronted were police officers who were executing a search warrant and that he could pursue any concerns with 51 Division. Mr. Pieters prepared a letter of complaint and faxed it to Police Chief David Boothby.
Ultimately, charges of misconduct were brought against Detective Constables
Mark Denton and Michael Abbott.
The Hearing:
The hearing of this matter took place on July 12 and 28, 2000. There were many contentious issues including several motions. For example, Mr. Pieters argued for a change of venue, which was denied, and for the summonsing of certain witnesses, which was also denied, as the Hearing Officer determined those matters as not germane to the hearing issues. There were 53 exhibits and extensive cross-examination of witnesses.
Mr. Pieters, testifying on his own behalf, outlined the events of March 2, 1998. He stated that he had been stalked by three burly white men as he entered his apartment, and upon confronting the men, was advised that they were police officers. Upon demanding identification, he was told that none was required as he was not being arrested, and when the issue was pursued further, Detective Constable Denton gestured to Mr. Pieters with his middle finger in the air.
Mr. Pieters was of the opinion that he had been placed under improper surveillance and that this was racially motivated.
During extensive and lengthy cross-examination, Mr. Pieters acknowledged that he was very aggressive in his approach to the men, and that he had used profanities in his confrontation, arguing that the moment was not a time for civilities.
Evidence presented by the police officers was to the effect that they were involved in a routine drug investigation. A search warrant had been executed at apartment 1414 and an individual had been arrested. As the arrested person denied being the person named in the warrant, it was necessary for the officers to return to the police vehicle for a surveillance photo to ensure positive identification.
Their evidence was that, as they were about to enter the elevator, they observed a man who had just left the elevator walking in the direction of apartment 1414. Because two officers were alone with the prisoner in that apartment, they briefly checked to see the destination of the person proceeding along the hallway.
The officers testified that the person, Mr. Pieters, left his keys in the door to his apartment and approached them in an aggressive, abusive and belligerent way. He shouted obscenities at them and demanded to be told why they were looking at him. Detective Constable Denton testified that he told Mr. Pieters that they were police officers, and that when asked for identification, presented it. Detective Constable Denton denied giving Mr. Pieters “the finger”. He insisted that they quickly left the building to continue with their investigation.
Upon leaving the building, a call was placed to dispatch by the officers to advise that an irate male may be calling and to inform that person that they were involved in a routine drug investigation.
Mr. Pieters conducted a detailed cross-examination of Detective Constable Denton regarding all issues pertaining to the events at the elevator. Detective Constable Denton was cross-examined on issues dealing with the conversation, the manner in which he normally carried his police identification, and his record as a police officer.
As well, Constable Peter Duncan testified. Essentially, he indicated that as the officers were getting on the elevator, Detective Constable Denton checked to see whether or not Mr. Pieters was trying to enter apartment 1414. He heard
footsteps and then Mr. Pieters yelled something to the effect: “Hey, What the fuck are you looking at?” He could not recall whether or not there was a request for identification or whether or not any was offered. He testified that the whole exchange took place in less than a minute.
The disciplinary hearing concluded on July 28th. On September 28, 2000, the
Hearing Officer provided an oral decision advising that charges against the
officers were dismissed because clear and convincing evidence had not been proved by the prosecution.
The Hearing Officer acknowledged the extensive evidence presented, made reference to the groundbreaking events involved in Mr. Pieters bringing his case before the tribunal and provided a lengthy and detailed decision. A written decision dated September 29, 2000 was subsequently delivered to the parties.
Motion:
The appeal commenced before the Commission on Thursday, January 10, 2002. It soon became apparent that there were two versions of the decision of the Hearing Officer before us, namely, the transcript of the decision read on September 28, 2000 filed as part of the record on the appeal and secondly, the written decision signed by the Hearing Officer on September 29, 2000. The appeal was adjourned.
On October 16, 2002, this Commission received a Notice of Motion filed by
Mr. Harry Black on behalf of the Respondents, Detective Constable Mark Denton and Detective Constable Michael Abbott. The Notice of Motion was served on the Appellant Mr. Selwyn Pieters on October 16, 2002. The Motion was returnable on October 24, 2002.
The Notice of Motion sought leave to introduce additional evidence before the Commission. This evidence consisted of an Affidavit of Jane Porter Fox who worked as an assistant to the Hearing Officer in the Toronto Police Service Trials Office. In short, the purpose of the Affidavit was an attempt to explain the reasons why the transcript of the oral decision of the Hearing Officer filed on the record, differed from his written and signed decision dated September 29, 2000.
Mr. Pieters strongly argued that it was inappropriate for us to allow the Affidavit to be introduced as the appeal was based on the record.
Mr. Black, on the other hand, argued that the Affidavit was credible and reasonably capable of belief, and that the evidence would have an important influence on the results of the appeal as it went to the heart of the appeal, namely, the version of the decision being appealed from.
Decision on Motion:
Section 70 (5) of the Act clearly states that an appeal to this Commission is an appeal on the record, although the Commission may receive new or additional evidence as it considers just.
This Commission must be entitled to rely on the accuracy of the record received. It is not our role to look behind the record and to question the decision maker. It
was incumbent upon the Toronto Police Service to make certain that the record filed with this Commission was accurate and complete. It is not appropriate for this Commission to cross examine the Hearing Officer as to his reasons for reaching his decision either directly or indirectly through his clerk or assistant.
Furthermore, Rule 13.3 of this Commission clearly sets out that a Notice of Motion must be delivered at least 14 days before the Commission deals with the Motion. This rule is to ensure fairness to all parties.
The issue, that the Motion attempts to address, came to light on January 10,
2002 at the commencement of the appeal. Furthermore, we note that the Affidavit of Jane Porter Fox was sworn on January 31, 2002. Nevertheless, the Motion was not served upon Mr. Pieters, nor filed with this Commission until October 16, 2002 and was to be returnable on October 24, 2002. This clearly does not fall within the time parameters as set out in Rule 13.3.
For these reasons, we are not prepared to accept the Affidavit of Jane Porter Fox as fresh evidence and the Motion was denied.
Appellant’s Position:
During his presentation to this panel, Mr. Pieters asked that the decision of the Hearing Officer be set aside and that a ruling be made by this tribunal that the case against Detective Constables Abbott and Denton had been made on clear and convincing evidence. He further asked that there be a finding of bias, prejudice and partiality on the part of the Hearing Officer.
Reference was made during the appeal to discrepancies between the transcript
of the oral decision rendered by the Hearing Officer and the wording of his signed written decision of September 29th. While those discrepancies were noted, Mr. Pieters advised that his appeal was based solely on the written and signed decision of September 29, 2000.
Mr. Pieters’ Notice of Appeal contains 21 grounds. They include allegations of defects in hearing procedures, bias, stereotyping, mistakes of fact, violations of Charter rights, partiality, abuse of process, erroneous conclusions and failure to properly apply evidence.
Indeed, Mr. Pieters went so far as to suggest that the processes involved in the entire matter, from the time of the incident of March 2, 1998, to the conclusion of the disciplinary hearing, clearly indicated that the incident was racially motivated, that the comments of the Hearing Officer, such as the statement that “even plain clothes officers have an unmistakable police appearance” proved bias, and that he had, as a result, been denied natural justice in the hearing of his complaint.
Mr. Pieters argued that the failure of the Hearing Officer to agree to his request for a change of venue because of the hostile environment in the police building in which the hearing was being held, the Hearing Officer’s denial of Mr. Pieters’ request to summons a particular witness, the Hearing Officer’s refusal to order that interviews be conducted with residents of the apartment building, and the Hearing Officer’s failure to control hostile and ferocious cross-examination of Mr. Pieters, are further grounds for this panel to set aside the decision of the Hearing Officer.
Respondents’ Position:
The Respondents argue that this appeal is an attempt to have the Commission “re-try” a hearing in which Detective Constables Denton and Abbot were found not guilty of the charges placed against them. They argue that this panel has no jurisdiction to deal with any matters raised by the Appellant apart from the appeal of the finding of the Hearing Officer that the charges were not proved on clear
and convincing evidence.
It was argued that reliance on the submissions in the Appellant’s factum should involve great care, in that those submissions contain numerous misstatements.
It was argued that the Appellant had provided materials unrelated to the matter of the hearing and the charges, and that they contained unproven and misstated assertions. The Respondents referred us to page 15 of the decision of the Hearing Officer that there were significant inconsistencies in Mr. Pieters’
evidence that could not be explained away as drafting errors.
The Respondents argue that the evidence presented by the police officers was direct, open, and forthright. They reviewed the requirement of the Act that evidence for a conviction must be clear and convincing. It must be weighty, compelling and convincing and must be acceptable to a tribunal acting with due care and caution.
Among other cases, we were referred to Ward v. Worker’s Compensation Board (1984), 1984 CanLII 4965 (PE SCTD), 51 Nfld & P.E.I. R. 28 (P.E.I.S.C.). Ward is submitted as a test for an arguable basis of a leave to appeal.
The Respondents therefore argue that the decision of the Hearing Officer should remain without alteration.
Decision:
In this appeal, held on the record, our mandate and authority is to address the decision of the Hearing Officer. Our function is to determine whether or not the Hearing Officer fairly and impartially assessed the evidence presented, and that
he has not made a manifest error, ignored relevant evidence, or drawn erroneous conclusions.
Many issues peripheral to the evidence dealing directly with the charges against the police officers were raised during the disciplinary hearing, during the appeal before this tribunal and in extensive correspondence leading up to and following the hearing.
We acknowledge the broad range of issues involved in this overall matter and the extensive material presented and reviewed during the investigation and at the time of the hearing by the disciplinary tribunal on July 12 and 28, 2000.
We acknowledge, as well, the extensive presentations made on behalf of the parties appearing before this Commission. This panel is to consider the appeal of the ruling of the Hearing Officer that findings of misconduct on the part of the accused officers were not proved on clear and convincing evidence, and further, to consider whether or not the Hearing Officer displayed a reasonable apprehension of bias in his weighing of the issues reviewed during the two days of hearings, and in the wording of the decision.
We are asked to consider that racial profiling was a motive in the matter of one of the police officers, as alleged by Mr. Pieters, “stalking” or “watching” him as he entered his apartment.
We have noted the assertions that the actions of the police officers were racially motivated. However, we are satisfied with the finding of the Hearing Officer that checking to see the destination of an unknown individual proceeding in the direction of an apartment where fellow police officers were located in the pursuit of a criminal investigation is not only reasonable, but failure to do so could constitute a lack of proper concern on the part of these officers for the safety of their fellow officers. It was well within the authority of the Hearing Officer, based on the information before him, to conclude that the “quick look” at the person proceeding along the hallway was not racially motivated.
We are asked to make a finding of “actual bias, prejudice and partiality” on the part of the Hearing Officer. We are asked to consider that the comments and conduct of the Hearing Officer, including the statement that plainclothes police officers have an unmistakable police appearance, indicate that a reasonable apprehension of bias exists and that as a result a fair hearing of the issues for the complainant did not occur. We are asked as well to consider the refusal of a change of venue from the facilities as the Toronto Police Service building.
In the case of Committee for Justice and Liberty, et al v. National Energy Board (1978), 1976 CanLII 2 (SCC), 1 S.C.R. 369 at page 394 the Supreme Court of Canada held: “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 … that test is ‘what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude’”.
It is our opinion that the comments and statements made, taken in the totality of the two-day hearing, would not meet the required test of a perception of bias to a reasonable and well informed person. We believe, as well, that not withstanding the locality, a full hearing of all of the issues did take place. At that hearing,
Mr. Pieters had the opportunity to both vigorously and competently present his position.
The finding of fact, the determination of the credibility of witnesses, are best left to the Hearing Officer who has had the opportunity to directly hear evidence and to assess the demeanor of witnesses before him. This case is very much one of credibility.
Matters relating to the credibility of witnesses are clearly those of the Hearing Officer’s authority. In Carmichael and Ontario Provincial Police (21 May, 1998, unreported, O.C.C.P.S.) at page 6, the Commission stated:
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 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 it weight.
As this Commission noted in 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 that of 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.
That the Hearing Officer fairly and impartially applied the proper principles and that all relevant matters were properly considered is the issue to be assessed by this tribunal.
We are of the opinion that there are no manifest errors on the part of the Hearing Officer, that he properly assessed issues and the credibility of witnesses appearing before him, and that the decisions of the Hearing Officer were within the range of those available to him. Given the very brief nature of the events in question and the different versions of what occurred, it was open to the Hearing Officer to conclude that there was not clear and convincing evidence of misconduct.
Further, the hearing in this case was held in accordance with the legislative scheme set out in the Act. We cannot accept the bald assertion that this scheme in and of itself violates sections 7 and 15 of the Charter.
For reasons that are noted above, the appeal is dismissed.
DATED THIS 16th DAY OF APRIL 2003.
Doug Smith E.E. Kelly Culin
Member, OCCPS Member, OCCPS