ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE JUAN BLOWES-AYBAR Appellant
TORONTO POLICE SERVICE Respondent
Presiding Members: Peter J. Doucet, Member Frederic G. Farrell, Q.C. G. Douglas Smith, Member
Appearances: Barrie Chercover, Counsel for the Appellant Darragh Meagher, Counsel for the Respondent
Hearing Date: Wednesday, August 6, 2003
Constable Juan Blowes-Aybar of the Toronto Police Service is charged with misconduct under s. 74(1)(a) of the Police Services Act, as follows:
Charge No. One (1) You are alleged to have committed misconduct in that you did act in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force, contrary to section 2(1)(a)(xi) of the Schedule Code of Conduct of Regulation 123/98 and therefore, contrary to section 74(1)(a) of the Police Services Act.
The substance of the charge is that on April 4, 1998 at 2:00 a.m. at the Costa Linda Hotel in the Dominican Republic that he twice attempted to kill Magda Diaz, and sexually assaulted her by forcing vaginal intercourse and fellatio.
Ms. Diaz complained immediately following the alleged assault to the hotel staff and the Dominican Republic police, who were called by the hotel staff. As a result, Constable Juan Blowes-Aybar was arrested and jailed by Dominican Republic police. The next day Ms. Diaz attended before a Notary Public in the Dominican Republic and arranged to withdraw the charges and allegations against Constable Juan Blowes-Aybar.
She states that she did so because she was told that she could not leave the Dominican Republic unless she did so. This is uncorroborated.
This was an extensive hearing involving 7 days of evidence on the issue of misconduct and 1 further day of evidence in sentencing.
The evidence dealt in great detail with how Constable Blowes-Aybar and Magda Diaz met through a family friend the day before they were each planning separately to travel to the Dominican Republic, how they met with friends the next morning at Pearson Airport, flew seated together to the Dominican Republic and became romantically and sexually intimate on more than one occasion prior to the events of April 4, 1998.
The Hearing Officer heard evidence from Magda Diaz, Sam Balsamo, Chris McBride, Glen Davies, Samantha Davies, George Jackson, Constable Juan Blowes-Aybar and Gary Smith.
No one other than Juan Blowes-Aybar and Magda Diaz were in the room on April 4, 1998 and therefore directly aware of what transpired between Juan Blowes-Aybar and Magda Diaz at that time.
There was, however, a great discrepancy between the version of Magda Diaz and Juan Blowes-Aybar of what led up to that evening and how they became so intimately involved.
In essence, Constable Blowes-Aybar’s version is that through a family friend he was told that Magda Diaz was travelling to the Dominican Republic while he too would be there, that he consented to her being given his phone number, that she called him and ultimately invited him to meet her and her mother and go for a drink with her which he did the evening prior to departure. That evening resulted in two goodnight kisses and a mutual attraction. He arranged to meet her and her travelling companion, and his, at Pearson the next morning and arranged for the four of them to sit together on the plane. She was to stay at a resort and he with a friend. She asked for his number to contact him in the Dominican Republic which he gave. The same day they arrived she called him and gave her hotel details. The four of them agreed to go out together and he and she ended up having consensual intercourse on the beach that evening.
The next day he checked into her hotel, and she assisted by giving her room number so he could have the room next to hers, after which she accompanied him to the room. That evening they went out again with a group of others, and after coming back and returning to their respective rooms she, now in sleepwear, came and knocked on his door after he was asleep, apparently to collect a disposable camera, and there were further consensual sexual relations, both intercourse, fellatio and cunillingus. They spent each day together in the company of others leading up to April 4, 1998 and were obviously involved intimately with one another.
While Ms. Diaz admits that the sexual relations and involvement with Juan Blowes-Aybar were consensual prior to April 4, 1998, she does so reluctantly and with qualification. She repeatedly explains her continuing involvement with and acceptance of what she described as his advances because she did not want to be “rude”. She regularly described feeling uncomfortable by his actions, commencing with the plane ride to the Dominican Republic.
The version of events of April 4, 1998 is night and day. Ms. Diaz says that after returning to the hotel after the evening out with the group that she went to collect Juan Blowes-Aybar at his room to join the group at the pool. He invited her in to talk, “snapped”, threw her on the bed, twice tried to strangle her, the second time requiring CPR to revive her, forced her into a cold shower, made her lie in his bed and forced her to perform both vaginal intercourse and fellatio.
She says that he also attempted to harm himself by self-strangulation and banging his head while threatening to kill himself. She scratched his back and placed her broken necklace under the bed as evidence. She was able to convince him to let her leave the room and immediately reported it to the hotel and police. The police arrested and jailed Juan Blowes-Aybar.
Constable Juan Blowes-Aybar says that there was no violence - only consensual sex once again. Ms. Diaz was drunk and after the consensual sex became hysterical, tried to hit him and he put her in the cold shower to calm her down. He learned of the accusations after he went down to the pool. He was arrested and jailed. The next day she dropped the charges and professed her love for him.
Clearly credibility of Juan Blowes-Aybar and Magda Diaz is a key element of this case. The law is clear. The prosecutor must prove its case on clear and convincing evidence.
This evidence must be weighty and credible evidence upon which a trier of fact acting with care and caution can come to the fair and reasonable conclusion that the officer is guilty of misconduct.
Our role on review is clearly set out and limited. We are not to second-guess the decision of the Adjudicator. As stated in the non oft-quoted passage from Williams vs. OPP (1995) 2 O.P.R. 1047 at 1058: It is only in certain limited cases where it is open to us to reach a different conclusion from the trier of fact. This can only be based on the strongest ground. We must be of the view that there can be no other determination than the conclusions of the Adjudicator, as to the credibility of witnesses, cannot reasonably be accepted.
We must believe that there has been a manifest error or that the conclusions are unreasonable and cannot be supported on the evidence. (Norris vs. Loranger (1998) 2 P.L.R. 493.
In her reasons, the Hearing Officer states at page 8:
I found Ms. Diaz’ testimony was compelling, forthright, unwavering and possessed a most definite ring of truth. She was never shaken in the essentials of her evidence.
Ms. Diaz was not confused about events of what happened even after this passage of time and remained steadfast in her version of events, despite a lengthy and exhaustive cross-examination by defence.
When segments of her previous statements were read out in this Tribunal I found it reinforced to me that she was describing the same sequence of events every time and to all persons she had spoken to with no relevant inconsistencies.
Her description of being attacked was consistent with what she saw, felt and heard.
She discounts the evidence of Constable Juan Blowes-Aybar and the defence witnesses but without connecting such conclusions to the evidence. She accepts the evidence of Magda Diaz, stating she was not confused, that she was compelling, forthright and unwavering` and that she had no relevant inconsistencies.
Despite the very able argument of Mr. Meagher for the Respondent, we cannot accept that the Hearing Officer was directing her mind only to the evidence of what took place in Juan Blowes-Aybar’s hotel room between Juan Blowes-Aybar and Magda Diaz on April 4, 1998. Even if this were so, the Hearing Officer had to consider so much more than this in order to properly discharge her duty.
In our view a clear reading of the transcript shows much contradiction, inconsistency and non-recollection by Magda Diaz on all areas. Her answers are frequently “I don’t recall”. When trying to explain her continuing involvement with Juan Blowes-Aybar by stating “I didn’t want to be rude”, her evidence begins to take on an air of incredulity. This is her evidence-in-chief.
On cross-examination she repeatedly changes her story when confronted with evidence which will be called. She admits repeatedly that her own explanations of her own conduct are unreasonable and unbelievable.
The Hearing Officer failed to consider any of this. In fact, in reading her decision in its entirety, we wondered if she had heard the same evidence which we read in the transcript.
The Toronto Police Service chose to prosecute based solely on the uncorroborated evidence of Magda Diaz. This is their choice. We cannot help but ask why they would not have taken the simple steps of interviewing McBride, Balsamo and Davies, all of whom reside in Canada, or at least interview the Dominican Republic witnesses, most notably police, by telephone.
We cannot accept the evidence of Gary Smith that no investigation was done purely for reasons of economics. Surely there is an obligation to perform a full and proper investigation. Had this matter come to us even on a complaint review we would have sent it back for further and proper investigation.
We are clearly of the view that the charges against Juan Blowes-Aybar were not proven on clear and convincing evidence. The evidence of Ms. Diaz was neither clear nor convincing. In fact, her story was incredible throughout.
We find that there can be no other determination but that the conclusions of the Hearing Officer cannot reasonably be accepted and that she has made a manifest error in arriving at her conclusion that the charges against Juan Blowes-Aybar were proper on clear and convincing evidence, which we find is totally unsupported by the evidence in this case.
Appeal allowed, conviction set aside.
DATED THIS 12TH DAY OF AUGUST, 2003.
Peter J. Doucet Member, OCCPS
Frederic G. Farrell, Q.C. Member, OCCPS
G. Doug Smith Member, OCCPS