Humphries v. Kelly and Durham Regional Police, 2003 CanLII 87668

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Humphries v. Kelly and Durham Regional Police, 2003 ONCPC 19

REASONS FOR DECISION

LANCE HUMPHRIES Appellant

CONSTABLE BRUCE KELLY and DURHAM REGIONAL POLICE SERVICE Respondents

Presiding Members: Murray W. Chitra, Chair Peter Doucet, Member

Appearances: Lance Humphries, Appellant William R. MacKenzie, Counsel for Constable Bruce Kelly Staff Inspector Brian Fazackerley, Counsel for Durham Regional Police Service

Hearing Date: July 2, 2003

This is an appeal by Mr. Lance Humphries from a decision of Superintendent Jim Lockwood (the “Hearing Officer”) dated February 4, 2003. That decision was that Constable Bruce Kelly was not guilty of the disciplinary offence of neglect of duty contrary to section 2(1)(c)(i) of the Code of Conduct found at O. Reg. 123/98 as amended (the “Code”).

Background:

Mr. Humphries is a delivery driver living in Ajax, Ontario. He separated from his wife C in November of 1995. There were two children of that relationship. One was a daughter born in 1991. The other was a son born in 1993.

Initially, C had sole custody of the two children. This was reflected in a separation agreement signed on July 26, 1996. In March of 1999 C entered into a common law relationship with Mr. O.

On October 16, 1998 Mr. Humphries and C amended their separation agreement to allow for a trial co-parenting arrangement. The idea was that the children would reside with each parent on alternating weeks. The agreement contained a commitment on the part of both Mr. Humphries and C to cooperate and not attempt to alienate the children. As well, it had a clause specifying that “The children will have access, as they request, to telephone the other parent and the parties shall assist the children with telephone calls.”

Mr. Humphries hired a live in nanny to assist him with his responsibilities. Unfortunately things did not go well. There were many disputes between the parents. These resulted in a number of unpleasant incidents. For the purposes of this appeal what is relevant is a series of such events that occurred during latter part of September of 1999.

On that Monday, September 27th both C and Mr. O went to the children’s school to have a meeting with the principal. Mr. Humphries arrived to pick up the children because it was his week to have custody. A confrontation between the adults took place outside of the principal’s office in the presence of the two children. As a result, both were upset.

The 8 year-old daughter returned home with C and Mr. O. The 6 year-old son went with his father. The following morning both were dropped off at school. At the end of the day the two children were picked up by Mr. Humphries’ nanny and returned to his home.

The nanny noted that the daughter was in a bad mood and was complaining about lack of sleep. The nanny telephoned Mr. Humphries at work and told him. He came home early at 6:30 p.m. He started to tape record his various discussions with the children and make notes. At 6:46 p.m. the young girl asked the nanny to help her phone her mother. The nanny dialed the number and went to the kitchen. There was no answer. The daughter left a message on her mother’s answering machine. It was as follows: “Mommy – Daddy’s bothering me again … tom, tomorrow I want you to p, to pick me up instead, daddy’s bothering me…”

When C received the message both she and Mr. O decided to drive to Ajax to check on the children. While they were on route a second message was left on the answering machine by the daughter at 6:53 p.m.. C accessed it by cell phone. Her daughter was upset and crying. The barely audible text was as follows: “Sorry mommy, but that was daddy who hung up the phone. He caught me. I want you to, to come pick, pick me up tomorrow, and come talk to me about it at lunch time …Tell O [sic] to, to come too …”

C and Mr. O arrived outside Mr. Humphries home at approximately 7:15 p.m. C asked Mr. O to stay in the car. C approached the front door and was confronted by Mr. Humphries on the walkway. Words were exchanged and C attempted to enter the house. There was physical contact and C fell to the ground. Mr. Humphries retreated to the house and attempted to lock the doors.

Mr. O observed these events. He left the car, ran up the front walk and forced open a locked screen door. Mr. O prevented Mr. Humphries from closing the inner door and pinned him by the shoulders against a wall. C entered the house and removed the children. C, Mr. O and the children drove away.

Shortly, thereafter the Durham Regional Police Service (the “Service”) became involved. This came about in two ways.

The Service’s Response:

Mr. Humphries’ nanny was in the house in her room while these events transpired. She heard yelling and shouting and came downstairs. She saw Mr. Humphries pinned against the wall. She ran back upstairs and dialed 911.

Constables Wright and Edgar were dispatched by radio to the residence. The limited information they received had serious implications (i.e. a break and enter and abduction had occurred). They arrived at the scene at 7:26 p.m. Constable Edgar sat down with Mr. Humphries in the kitchen and started to complete an incident report. Constable Wright began talking to the nanny.

According to Constable Edgar, Mr. Humphries advised him that his ex-wife’s boyfriend had assaulted him (i.e. either struck or punched him about the head). Further he reported that the two had broken into his house and taken his children. Mr. Humphries produced a copy of various legal documents relating to the custody arrangement with C.

Constable Edgar was not familiar with such documents. As a result he contacted Acting Sergeant Andrew who was working in a supervisory capacity that evening. He asked that Acting Sergeant Andrews come to the residence and assist him. Acting Sergeant Andrew agreed.

In the meanwhile, shortly after both C and Mr. O left Mr. Humphries’ residence in their car, they state they were advised by the 8-year old that she had been slapped by her father. They decided to go to the police. They drove to the Service’s 19th Division Station at 1710 Kingston Road in Pickering. They arrived sometime between 7:20 and 7:25 p.m. and parked out front. All four went to the front counter and Mr. O asked if Bruce Kelly was in.

Constable Kelly was an acquaintance of Mr. O. They had played hockey together in an adult league for a number of months. They had the occasional beer after a game. At one point in the recent past Mr. O had discussed C’s problems with Mr. Humphries and sought advice.

Constable Kelly had just commenced his shift at 6:45 p.m. At 7:22 p.m. he and his partner Murray were dispatched to respond to a neighborhood dispute in Pickering. They were at the back of the 19th Division Station loading their cruiser. At 7:30 p.m. Constable Kelly was advised over the police radio that there was someone at the front desk to see him. He drove his police car around front and entered the building.

Constable Kelly recognized Mr. O. However, this was the first time he had met C or the children. He moved the four to an interview room. While he was talking to them he heard a radio report that Acting Sergeant Andrews was on his way to the Humphries’ residence. Constable Kelly contacted Acting Sergeant Andrews by radio and advised him that the children were safe and everyone was at the station. Acting Sergeant Andrews replied that he would call him when he had access to a “hard line”.

Constable Kelly returned to the interview room. It would seem that he then received a different version of the events of that evening than that provided to Constable Edgar by Mr. Humphries. He was advised that C and Mr. O had responded to two hysterical phone messages. He was told that Mr. Humphries had thrown C on the walkway to prevent her from seeing her children. Further, they reported that Mr. Humphries had struck his daughter in the face when he found out that she had called her mother a second time.

Acting Sergeant Andrews arrived at the Humphries residence at 7:36 p.m. He spoke to the constables, examined the screen door, looked at Mr. Humphries for injuries and then called Constable Kelly from the Humphries kitchen at 7:44 p.m. They spoke for several minutes and Acting Sergeant Andrews heard for the first time about the two phone messages and the alleged assault on C.

After the telephone call, Acting Sergeant Andrews spoke to Mr. Humphries. He acknowledged that his daughter had called her mother. Mr. Humphries denied throwing C. to the ground. He indicated that when she had tried to barge into the house he put his hands out to stop her and then spun around and headed straight for his door. Whether or not she might have fallen, he could not say because his back was turned.

It was agreed that Sergeant Andrews, the two constables, Mr. Humphries and the nanny would all come to 19th Division in order to continue the investigation in a controlled environment, take statements and “get to the bottom of things”. Mr. Humphries drove there in his own car.

At 7:55 p.m. Constable Kelly began taking a statement from the 8 year old in the presence of her mother. Before he could complete the document Acting Sergeant Andrews arrived. This was approximately at 8:05 p.m. The two officers had a brief conversation at 8:15 p.m. and exchanged information. Constable Kelly advised Acting Sergeant Kelly that he knew Mr. O.

Mr. Humphries arrived at the Station and was placed in an interview room. At 8:20 p.m. Constable Kelly went to that room and arrested Mr. Humphries for two counts of assault. He was informed of his right to counsel. Mr. Humphries states that he tried to provide Constable Kelly with important information about C and the events of that evening, but was ignored.

Constable Kelly then returned to finish taking the statement from the 8-year old daughter. Over the course of the next two hours he also took statements from C and Mr. O. At some point he received a copy of a statement provided by the nanny to Constable Wright. It is not clear whether this was before or after the arrest.

Mr. Humphries was held in custody overnight and released with several conditions. They included that he not communicate with either C or his children. Mr. Humphries subsequently laid a private information against Mr. O alleging the criminal offence of threatening.

The criminal proceedings against Mr. Humphries were scheduled to take place on January 5, 2000. As part of the pretrial disclosure the Crown Attorney wrote Mr. Humphries’ lawyer a letter on December 30, 1999. It read in part:

Please be advised that I have been informed of the following:

1. P.C. Bruce Kelly and witness O [sic] know each other from hockey.

They specifically went to P.C. Kelly to report this incident.

At court it was agreed to resolve matters by way of a peace bond. As part of this arrangement the private charge of threatening against Mr. O was withdrawn.

The Disciplinary Proceeding:

On April 10, 2000 Mr. Humphries filed a public complaint pursuant to Part V of the Police Services Act R.S.O. 1990, C. P. 15 as amended (the “Act”). Essentially this complaint concerned the manner in which members of the Service dealt with the events on September 28, 1999.

The end result of this process was that on February 5, 2002 the Ontario Civilian Commission on Police Services directed that a disciplinary hearing be commenced to determine whether or not the actions of Constable Bruce Kelly might constitute neglect of duty as defined by 2(1)(c)(i) of the Code.

The Statement of Particulars setting out the allegations against Constable Kelly read:

On September 28, 1999, shortly after commencing patrol duty at 1845 hours, you cancelled yourself from attending another detail to return to the station. You took over an investigation into an alleged domestic assault that involved an off duty acquaintance … from two other police officers, thereby creating an apprehension of bias and placing yourself in a potential conflict of interest.

In the course of that investigation you neglected to appropriately follow-up on a statement provided by ….the boarder/babysitter, who could have provided background information and who witnessed part of the altercation.

You further failed to obtain for all victims, suspects and witnesses where practical an audio or videotaped statement.

As a result, your decision to lay criminal charges against the complainant, Lance Humphries was made before a thorough investigation was completed, and your decision not to lay criminal charges against your acquaintance was made without sufficient investigation.

Notice of Hearing was served on all parties in July of 2002. The disciplinary hearing took place in Oshawa on January 6, 7 and 8, 2003.

The Hearing Officer received the testimony of 9 witnesses. They Included Mr. Humphries, the nanny, C., Mr. O, Constable Edgar, Constable Wright and Sergeant Andrews. As well, Constable Kelly testified on his own behalf. A total of 22 exhibits were received. Mr. Humphries participated in the proceedings as a party. He cross-examined witnesses, tendered evidence and made submissions.

The Hearing Officer provided a 32 page written decision on February 4, 2004. He found Constable Kelly not guilty. It is this decision that is the subject of this appeal.

Preliminary Motion:

Prior to the commencement of this appeal Mr. Humphries brought a motion pursuant to section 70(5) of the Act for permission to introduce new or fresh evidence.

Generally, appeals before this Commission are on the record. However, section 70(5) permits the Commission in special circumstances to “receive new or additional evidence as it considers just. “ In determining whether or not to exercise this discretion the Commission has traditionally considered the proposed new evidence in light of the four principles set out in R. v. Palmer 1979 CanLII 8 (SCC), [1980], 1 S.C.R. 759 at 775 (S.C.C.).

In summary, these principles state that any proposed evidence:

• will not be admitted, if by due diligence, it could have been adduced at trial;
• must be relevant, in the sense that it bears on a potentially decisive issue;
• must be credible, in the sense that it is reasonably capable of belief; and
• if believed, could reasonably be expected to affect the result of the proceeding.

All four requirements must be met.

The evidence being proposed for admission by Mr. Humphries consisted of two tapes. The first was a two-minute videotape of a conversation between him and his children in a van. It predates the events of September 1999 by 16 months. The second is a 10-minute audiotape of fragments of several conversations with different individuals, including C.

Both tapes were tendered at the original disciplinary hearing by Mr. Humphries. He was of the view that it would be helpful for the Hearing Officer to have this information to gain a better understanding of the motivation of various persons (i.e. C and Mr. O). The Hearing Officer did not feel that these tapes were relevant and declined to receive them.

Given the above, we concluded that the tapes did not constitute “new or additional evidence” within the meaning of section 70(5) of the Act. Further, they did not meet the four criterion articulated in Palmer. As such, we were not prepared to grant the motion.

This of course, was without prejudice to Mr. Humphries’ right to argue as part of his appeal that the Hearing Officer erred in his treatment of the evidence at the disciplinary proceeding by failing to admit the tapes.

Appellant’s Position:

Mr. Humphries seeks to overturn the decision of the Hearing Officer and have us find Constable Kelly guilty of neglect of duty.

In support of his appeal he argued that the Hearing Officer:

• ignored relevant and conclusive evidence;
• made manifest error in his assessment of the evidence;
• failed to apply an objective standard with respect to submissions; and
• drew erroneous conclusions.

On each of these points, he drew to our attention a number of factors.

Much of Mr. Humphries submissions focused on the history of his relationship with his ex-wife and their more recent conflicts. He described these events in terms of his view of her motivation for contacting the police on September 28, 1999. He suggested that this was all part of an ongoing campaign to discredit him, deny access to the children and obtain money. He argued that a close examination of the testimony of both C, and Mr. O discloses many inconsistencies. As well, he asserted that some of their descriptions of events were physically impossible. For these reasons, he stated the Hearing Officer should not have believed them.

He suggested that he was unfairly painted as an abusive man and that this colored the Hearing Officer’s interpretation of the evidence and denied him a level playing field at the disciplinary proceeding. For example, Mr. Humphries pointed out that the fact that he had no marks on his face was used as part of the reasoning to conclude that he had not been assaulted by Mr. O. However, the fact that his daughter had no marks on her face seemed to make no difference in so far as bringing criminal proceedings against him.

Mr. Humphries expressed great concern that he was not allowed to tell his version of events before he was charged. He expressed the view that the evidence of his nanny was important and that she should have been interviewed by Constable Kelly before any decision was made. He noted the decision of the Alberta Provincial Court in R v. Ghanem [1998] A.J. No. 879 to make the point that all complaints must be thoroughly and properly investigated.

Respondent’s Position:

Mr. MacKenzie, on behalf of Constable Kelly, takes issue with many of the Appellant’s characterizations of the facts and various legal submissions.

He suggested that it is practically impossible for him to respond to a large number of the arguments because they are either indecipherable or the Appellant:

• had injected his personal opinion;
• made statements that were not in evidence;
• referred to documents not received in evidence;
• submitted that evidence was missing from the transcript; and
• alleged impropriety on the part of the Hearing Officer.

Mr. MacKenzie argued that in essence, the Appellant was attempting to have us retry the entire disciplinary proceeding based on his version and perception of events at issue.

Mr. Mackenzie noted that our role on an appeal is not to substitute our opinion for that of the Hearing Officer. The issue for us is whether or not the decision of the Hearing Officer was without evidentiary foundation or displayed a manifest error in principle.

He noted that it was the role of the Hearing Officer to assess the credibility of witnesses and make findings of fact. Our function is not to interfere unless the reasoning of Hearing Officer is self-evidently wrong or cannot be reasonably accepted.

Overall, he asserted that the Hearing Officer:

• properly instructed himself on relevant issues and aspects of the law;
• considered and weighed the evidence in a thoughtful and judicial manner;
• made appropriate findings of credibility; and
• ultimately made a proper finding that misconduct had not been proved on clear and convincing evidence.

For these reasons, he argued that the decision of the Hearing Officer must stand. In support of these arguments he cited the following cases: Groat and Quinte West Police Service (November 26, 2001, O.C.C.P.S.), Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), Norris v. Loranger (1998), 2 P.L.R. 493 (Ont. Bd. Inq.), Mulholland and Halton Regional Police Service (25 March, 2003, O.C.C.P.S.), Krug and Ottawa Police Service (21 January, 2003, O.C.C.P.S.) and R. V. Wesley Owen (26 October, 2001, Ont. C. A.).

Decision:

Constable Kelly was charged with the disciplinary offence of neglect of duty. Section 2(1)(c)(i) of the Code states that a police officer commits such an infraction when he or she “without lawful excuse, neglects or omits promptly and diligently to perform a duty as a member of the police force.”

This is a serious allegation. To be established a number of requirements must be met. First it must be shown that a duty exists. Second it must be proven by clear and convincing evidence that the officer has neglected or omitted to perform that duty in a prompt and diligent manner. Finally, an officer will avoid discipline if her or she is able to show a lawful excuse for failing to meet the required standard. See Soley and Ontario Provincial Police (1996), 3 O.P.R. 1098 (O.C.C.P.S.).

In this case, the allegation against Constable Kelly was that he failed to conduct a thorough and impartial investigation into the events of September 28, 1999. There were a number of elements to this charge articulated in the Statement of Particulars.

It is clear that all police officers have a duty to investigate crimes, arrest offenders and assist victims. This duty arises from a number of sources. Section 42(1) of the Act states:

42(1) The duties of a police officer include … (c) assisting victims of crime; (d) apprehending criminals and other offenders and others who may lawfully be taken into custody; (e) laying charges and participating in prosecutions

These are significant responsibilities.

They must be performed with impartiality. All police officers in Ontario are required to take an Oath of Office. It is set out in O. Reg. 144/91 as amended. It requires every police officer to swear or affirm that he or she will “to the best of my ability, preserve the peace, prevent offences and discharge my other duties … faithfully, impartially and according to law.”

As well, these duties must be performed with diligence. This specific term is not defined in the Act or Regulations, but has certainly been examined in previous Commission decisions. For example, McGuire and Toronto Police Service (1971), 1 O.P.R. 53 (O.P.C) at page 54 it was noted that:

Diligence is defined in the Oxford English Dictionary as being “the care and attention due from a person in a given situation”. The Random House Dictionary defines diligence as “the constant and earnest effort to accomplish what is undertaken; persistent exertion of body and mind”.

Clearly, some investigations will require more attention than others.

One example of the kind of investigation requiring a higher level of diligence is those relating to allegations of domestic violence. This was reflected in the Service policies that were in place on September of 1999. Page 1 of the Durham Police Service’s Operation Policy on Criminal Investigations on Domestic Violence dated June of 1997 read:

The Service recognizes the serious and prevalent problem of Spousal Incidents and Assaults within our community. The scope of domestic violence has been recognized as a serious social problem and is not limited by marital status, sexual orientation or gender. Officers must fully document and respond to every domestic call regardless of whether or not a criminal offence has been committed or a charge/an arrest made.

The Policy defined the term “spouse” to include persons who “were previously married to each other” or “have a child in common”. It also defined “assault” to include “any form of physical or sexual harm caused by one spouse upon another” including “physical assaults, sexual assaults, threatening, harassment and [sic] intimidation”.

The Policy also reflected what can perhaps best be described as a ‘zero tolerance” requirement. It states that officers “shall …arrest and charge the suspect” … [w]here reasonable grounds exist and the suspect is present”.

Similar requirements were recently introduced in Regulations to the Act that came into force on January 1, 2001. While not in effect at the time of the incident in question, there are aspects of the Regulation that are worth noting.

Specifically, sections 12(1)(a) and (d) of O. Reg. 3/99 requires every chief of police to develop and maintain procedures and processes for undertaking and managing general criminal investigations into allegations of domestic violence. Section 29 of the same Regulation also requires police services boards to have corresponding policies in place.

The Ministry Of Public Safety and Security promulgated General Policing Standards to assist both chiefs and boards in meeting this responsibility. Section LE-024 of the Standards speaks to such matters as ensuring domestic violence calls receive priority and where “available, appropriate and practical” audio or video taped statements.

Section 15 mandates that “in all domestic violence occurrences an officer is to lay a charge where there are reasonable grounds to do so…” Section 16 states that a decision to lay a charge is not to be influenced by factors such as:

16 (d) likelihood of obtaining a conviction in court; (e) verbal assurance by either party that the violence shall cease; (f) denial by either party that the violence occurred; (g) the officer’s concern about reprisals against the victim by the suspect ..

Further, section 17 requires that all police services have a procedure in place requiring officers to “explain to both the victim and the suspect that it is their duty to lay a charge when there are reasonable grounds to believe that an offence has been committed, and that only a Crown can withdraw the charge.”

How do these factors apply to this appeal?

It was the role of the Hearing Officer at the disciplinary hearing to assess the whether or not Constable Kelly properly performed his duty by conducted his investigation on September 28 in a prompt, diligent and impartial manner. To this end he was required to hear witnesses, receive relevant exhibits, make findings of fact and credibility and apply the relevant law.

Our function on appeal is quite different. It is not simply to substitute our decision for that of the Hearing Officer assuming we were so inclined. Rather, it is to assess the decision to determine whether or not there was manifest error, relevant evidence ignored or erroneous conclusions drawn. See Williams and Ontario Provincial Police at page 1058

Further, matters relating to the credibility of witnesses are clearly within the Hearing Officer’s domain. In the normal course of events, it is the Hearing Officer who has the benefit of seeing the witnesses, hearing their testimony and assessing its weight. See Carmichael and Ontario Provincial Police (1998) 3 O.P.R. 1232 (O.C.C.P.S.) at p. 1238.

The Hearing Officer’s decision in this case is both lengthy and detailed. He devoted a section to the evidence of each witness and a number of pages analyzing and assessing credibility. He made it clear that he found the testimony of C to be “honest, straightforward and truthful”. He concluded that “[her] demeanor and manner was consistent with someone who has been the victim of domestic abuse”. He also found the testimony of Mr. O to be credible. On the face of the record, both these conclusions were available to the Hearing Officer.

The Hearing Officer had no difficulty with Constable Kelly giving C’s domestic violence complaint priority over his earlier neighborhood dispute call.

We take no issue with this logic. Indeed, it is both understandable and clearly in line with current Standards.

The Hearing Officer found that there was no procedure in place requiring Constable Kelly to audio or video tape the statements of the 8 year old, her mother and Mr. O. It would seem that the only such facilities available that evening were in rooms in the part of the station used for the holding of prisoners and Constable Kelly testified that he did not feel they were appropriate for either victims or children. The Hearing Officer accepted this judgment. To our mind, this is a conclusion that was available to him to make.

The Hearing Officer found that there was no evidence called to support the notion that the failure to follow-up on the statement of the nanny or interview her would have made any difference in terms of the result of the overall investigation. To our mind, this is not quite the point. The more relevant question is: Based on what Constable Kelly knew at the time, would it have been diligent for him to take such a step to ensure a proper investigation?

Unfortunately, the evidence is not clear on whether or not Constable Kelly saw the nanny’s statement either before or after his decision to arrest Mr. Humphries. Leaving this aside, the Hearing Officer accepted Constable Kelly’s testimony that based on the information that he had received from C, her daughter and Mr. O that he had sufficient evidence to believe on reasonable grounds that a crime of domestic violence had occurred. As such, the existing Domestic Violence Policy required him to arrest Mr. Humphries.

We may well have reached a different conclusion on this point had this matter been ours to decide in the first place. Clearly, all parties had been moved to Station for the purposes of taking statements and to permit officers “to get to the bottom of things”. There were different versions of what had occurred. In this controlled environment there was no risk to the parties or obvious urgency. There would have value in securing complete statements from all parties before acting.

We are mindful however, of the caution expressed in Mousseau and Toronto Police Service (1981), 2 O.P.R. 505 (O.P.C.) at page 507:

An officer is expected to use discretion and judgment in the course of his duties on many occasions. The police officer’s discretion or judgment ought not to be examined scrupulously by the benefit of hindsight, but it is essential to examine the circumstances under which the officer exercised discretion or independent judgment to see to what extent discretion is warranted.

The Hearing Officer, as an experienced police officer concluded that in the circumstances Constable Kelly’s actions did not give rise to “clear and convincing evidence” of neglect of duty. Given the existing policy, the lack of clear evidence as to when the nanny’s statement was reviewed and above noted admonition, we cannot say that this finding rises to the level of manifest error

This brings us to what is perhaps the most troubling aspect of this appeal. That concerns Constable Kelly’s previous relationship with Mr. O. and its potential implications to his sworn obligation to perform his duties “impartially”.

Unfortunately, there appears to be little case law on the issue of “impartiality” in the context of a police officer’s duty to investigate. We believe however that some assistance in can be found in administrative law jurisprudence arising from the actions of tribunals with investigatory or decision-making mandates.

One such case is R v. Valente [1995], 2 S.C.R. 673 (S.C.C.). In that decision Le Dain J. discussed the concept of “impartiality”. At page 685 he stated: “Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and parties in a particular case. The word “impartial” as Howland C.J.O. noted, connotes absence of bias, actual or perceived.”

There are a number of leading cases that describe the test to be applied in assessing “perceived bias”. In Monaghan and Toronto Police Service (1 May, 2003, O.C.C.P.S.) at page 6 the Commission noted: “The test for bias in relation to adjudicative tribunals is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. See Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of Public Utilities) 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623 (S.C.C.).”

The Hearing Officer properly described this test and applied it to the facts as he found them. Specifically, he noted that Constable Kelly:

• responded to an inquiry from the front desk not knowing who was going to be involved;
• had never met the complainant C or her daughter before;
• had met Mr. O playing hockey and their “social interaction consisted of having the odd beer together”

The Hearing Officer also observed “Constable Kelly disclosed this information to his supervisor that night who obviously did not detect a sense of bias.”

In his testimony Constable Kelly made it clear that he viewed Mr. O. as a witness and not a complainant. Further, the evidence before the Hearing Officer was that none of the policies of the Service in place at the time dealt with the sort of potential investigative conflicts at issue. It would appear that the Service promulgated a “Conflict of Interest-Personal Relationships Policy on April 12, 2002 (HR-02008). It was filed at the disciplinary hearing as an exhibit. However, even this policy only defines “conflict of interest” as relating to “personal relationships between members”.

Given the above, the Hearing Officer concluded that: ”In my opinion, the threshold of reasonable apprehension of bias has not been met. Requiring police officers to excuse themselves from an investigation simply because they know a witness to the extent that existed in this case, is unreasonable. In my opinion an objective person considering all of the circumstances would not conclude that there was a reasonable apprehension of bias”.

As noted, earlier it is not our role or function on appeal to substitute our opinion for that of the Hearing Officer. Given the findings with respect to the nature of the relationship, the absence of a clear policy and the disclosure to the supervising sergeant the decision of the Hearing on this point must stand. To our mind, the prudent course of action would have been for Constable Kelly to remove himself from the investigation once Acting Sergeant Andrews and his fellow officer returned to the Station. However, it was within the purview of the Hearing Officer to determine that this lack of prudence does not rise to the level of proof required to establish misconduct.

To our view it is unfortunate that there was no Policy or Directive in place to assist officers in clearly understanding the importance of not undertaking investigations in situations where the personal relationships with either complainants or witnesses might give rise to allegations or bias or potentially taint the eventual outcome of a criminal inquiry. Notwithstanding the nature of any complaint, police officers must be scrupulous in ensuring that they fulfill their duties in a manner that can be objectively perceived as impartial. We would strongly suggest that such a policy be developed.

For the above reasons, this appeal is dismissed.

DATED AT TORONTO, THIS 26th DAY OF AUGUST, 2003

Murray Chitra Chair, OCCPS

Peter Doucet Member, OCCPS