OCCPS #04-06
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE JOHN MILTON Appellant
TORONTO POLICE SERVICE Respondent
Presiding Members: Sylvia Hudson, Vice Chair G. Douglas Smith, Member
Appearances: Peter Brauti, Counsel for the Appellant Michael Martosh, Counsel for the Respondent
Hearing Date: March 1, 2004
This is an appeal by Constable John Milton, with respect to a conviction for one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at O. Reg. 123/98 as amended (the "Code"). In addition, Constable Milton appeals the disciplinary penalty imposed.
Background:
There is no dispute with respect to the events leading to the allegations made against the Appellant. Constable Milton had a long-term relationship with Ms. S.1 which ended. The Appellant attempted to reconcile with Ms. S. This included the sending of "love letters" and flowers.
Ms. S. spoke to the Durham Regional Police Service and complained that she no longer wanted to have contact with the Appellant. Durham conducted an interview with Ms. S. at which time she expressed concern that there had been non-consensual sex at some point during her relationship with the Appellant.
Constable Milton was charged on or about April 11, 2002 with criminal harassment and sexual assault. These charges were in keeping with existing Service policy directives and practices for domestic violence. Constable Milton denied the allegations and retained the services of Mr. O'Brien, a senior member of the bar in Durham to represent him.
The Crown decided, following a pre-trial and discussion among the various parties, not to proceed with the charges, provided that the Appellant agreed to enter into a Peace Bond for a period of 12 months. Constable Milton conferred with Mr. O'Brien about the implications of entering into a Peace Bond on the status of his employment as a police officer.
Mr. O'Brien assured him that in the history of Canada that no police officer had ever be found guilty of a disciplinary allegation of misconduct as a result of entering into a Peace Bond. Based on this advice and the understanding that he was not admitting to criminal conduct, Constable Milton agreed to enter into a Peace Bond.
In order to ensure that the matter could be brought forward Constable Rick Lusted of the Durham Regional Police Service on October 15, 2002 swore an Information. The same day a hearing was held pursuant to section 810 of the Criminal Code of Canada before the Honourable Mr. Justice J. A. Payne.
During the course of the hearing the Appellant was asked whether he wished to show cause why an order should not be made against him. Constable Milton, through his lawyer, indicated that while he denied the allegations he did not wish to show cause. However, he acknowledged that "there ... [was] a situation which warrants the peace bond being imposed."
Constable Milton's lawyer made no further submissions and indicated that the terms of the proposed Peace Bond were "all agreeable". As a result upon consent a Recognizance to Keep the Peace was issued. The essential terms were that for twelve months Constable Milton was not to associate or communicate either directly or indirectly with Ms. S. The criminal charges were withdrawn.
Allegations
Constable John Milton was subsequently charged with three counts of misconduct. Only one concerns us. It relates to an allegation that he did act in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of his Police Force, contrary to section 2(1)(a)(xi) of the Code.
The Statement of Particulars read as follows:
You are charged that on or between the 1st day of January in the year 1998 and the 31st day of January, in the year 2001, at the Town of Ajax, did commit a sexual assault on ... [S.], contrary to the Criminal Code.
You were further charged, that on or between the 3rd day of December, in the year 2001 and the 9th day of April, in the year 2002, at the Town of Ajax, did without lawful authority, repeatedly communicate directly or indirectly with ... [S.], thereby causing ... [S.] to reasonably, in all the circumstances, fear for her safety, contrary to the Criminal Code.
Investigation has revealed that you were ordered to enter into a Recognizance to Keep the Peace, pursuant to Section 810 of the Criminal Code and you failed to show cause why such an order should not be made.
The Hearing:
The Appellant's disciplinary hearing was held on May 1, 2003 before Superintendent A.R. Griffiths (the "Hearing Officer"). Constable Milton entered a plea of not guilty.
The hearing was very brief and no evidence was called other than Constable Lusted's Information, the Recognizance and a copy of the transcript of the section 810 of the [C]riminal Code proceedings. Ms. S did not testify. No other direct evidence was called with respect to either of the allegations of sexual assault or harassment. The Hearing Officer, essentially, found Constable Milton guilty of discreditable conduct for voluntarily entering into the Peace Bond.
On July 5th, 2003 the parties attended before the Hearing Officer to present their submissions and evidence on disposition, following which, Superintendent Griffiths imposed a penalty of a loss of "four days or 32 hours off."
Appellant's Position on Conviction:
Mr. Brauti, on behalf of the Appellant challenged the decision of the Hearing Officer with respect to the finding of guilt.
He noted that this Commission has the power to vary or revoke an adjudicator's decision where the trier of fact misapprehends the evidence, reaches a decision that is void of evidentiary fact or makes a clear error at law.
He argued that the Hearing Officer failed to properly take into account the "implied exclusion" principle for the interpretation of statutes. This principle stands for the proposition that if the Legislature in drafting a statute expressly mentions one thing then this implies that it intended to exclude others.
Mr. Brauti applied this principle to interpreting section 2(1) of the [C]ode. He directed our attention in particular to section2(1)(a)(ix) which states that an officer is guilty of misconduct if he/she is found guilty of an indictable criminal offence or a criminal offence punishable upon summary conviction. He noted that the Legislature had expressly directed its mind to provisions of the Criminal Code by referring to indictable and summary conviction offences.
The Code, however, does not refer to Peace Bonds, and Mr. Brauti suggested that it must be assumed by applying the "implied exclusion" principle that Peace Bonds were not intended to be included. As such, there could be no finding of discreditable conduct for merely being the subject of a Peace Bond.
He further argued that if there is any ambiguity in the interpretation of statutory provisions of a punitive nature, then an officer facing disciplinary allegations must be afforded the benefit of the most favourable reasonable interpretation.
He pointed out that seeking a Peace Bond is not a criminal prosecution and entering a Peace Bond is not an offence known to law. He further argued that a Peace Bond is a mechanism directed at preventing future conduct and not penalizing someone for conduct that may or may not have occurred. He suggested that to discipline someone for entering into a Peace Bond is to take punitive action for events that have not yet happened.
Mr. Brauti noted that the standard of proof for issuing a Peace Bond is characteristic of a civil injunction and thus has a lower threshold for the admissibility of evidence. He further argued that a Peace Bond deals with allegations as opposed to facts and the fact that a Peace Bond has been issued is of no further evidentiary value than the fact that criminal charges have been laid.
Mr. Brauti pointed out that for a Hearing Officer to reach a determination of guilt, that he must do so on clear and convincing evidence. He suggested that a finding of misconduct based on the mere fact that the Appellant is the subject of a Peace Bond was one that was void of evidentiary foundation. In support of this argument he pointed out that the Peace Bond in this case was supported only by hearsay evidence from a third party who had no direct knowledge of the facts. Even this hearsay evidence of Constable Lusted was untested.
Mr. Brauti further argued that the Hearing Officer either misapprehended the evidence by placing inappropriate weight to the acknowledgment by defence counsel that there was a "situation which warrants the Peace Bond being imposed". He argued that the word "situation" should not be read as an admission of criminal activity. Mr. Brauti noted that it was not at all clear what defence counsel was referring to in the use of the word "situation" but its use could reasonably be construed in a variety of contexts such as; there was a situation that there was no reasonable prospect of conviction, that there was a "situation" whereby it was reasonable to settle the matter by entering into a Peace Bond instead of placing all parties to the expense and time of a lengthy trial etc.
He argued that the fact that the criminal charges were withdrawn, at the time that the Appellant entered into the Peace Bond, should lead to a strong inference that the Crown had determined that there was not a reasonable prospect for conviction, otherwise the criminal prosecution would have proceeded on the very serious allegations. In short Mr. Brauti suggested that the Hearing Officer completely misconstrued the nature of the process by which the Appellant entered into the Peace Bond.
Mr. Brauti argued that the Peace Bond mechanism is employed as a dispute resolution process in the best interests of criminal justice. As such, he argued, that if the mere fact that a police officer entered into a Peace Bond constituted misconduct, then the effect will be that no police officer would in the future be able to use this important resolution process. He argued that this will have a serious impact upon members of police forces in Ontario and perhaps all across Canada.
Mr. Brauti finally argued that if the Prosecution in the disciplinary charges wanted to hold Constable Milton accountable for alleged criminal activity then they should have called direct evidence with regards to these matters to allow the defence the opportunity to meet the allegations.
Mr. Brauti referred us to a number of cases in support of his arguments.
Appellant's Position on Sentence:
Mr. Brauti alleged that the Appellant entered into the Peace Bond on the advice of an experienced defence counsel in order to resolve a criminal matter, and on the advice that to do so would not result in a charge of misconduct. He argued that this advice was sound, due to the fact that, until this current case, there was not a single police officer in the history of Canada who had ever been found guilty of disciplinary misconduct for entering into a Peace Bond.
Mr. Brauti referred us to a transcript of the evidence in which the Appellant stated that he would not have entered into the Peace Bond if he were aware that by so doing, he would be charged with misconduct. The Appellant indicated that if he had known that, he would have "fought the charges all the way".
He suggested that his client should receive at worst a reprimand, due to the fact that he relied on legal advice in entering into the Peace Bond and the fact that the finding of guilt for entering a Peace Bond would be precedent setting.
Respondent's Position on Conviction:
Mr. Martosh, on behalf of the Respondent, raised a number of arguments in support of the conviction of the Appellant for discreditable conduct.
He noted that this Commission is bound by the test set out in the often quoted case of Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 at 1058. This test, quite simply, is that for the Commission to overturn a Hearing Officer's decision we must find that the conclusions of the Adjudicator are void of evidentiary foundation.
He pointed out that the duties of police officers are clearly described in section 42 of the Police Services Act and include preserving the peace, preventing crimes and other offences, and providing assistance and encouragement to other persons in their prevention, assisting victims of crime and apprehending criminals and other offenders and others who may lawfully be taken into custody. He further argued that pursuant to the Code, that a police officer was guilty of misconduct for a range of behaviour including committing a criminal offence.
In this regard he referred us to section 2 (1) (a) (xi) of the Code, which in fact is the section that the Appellant was charged under. It states:
Any ...police officer...commits misconduct if he or she engages in. (a) Discreditable Conduct in that he or she,
(xi) acts in a disorderly manner or in a manner prejudicial to discipline or is likely to bring discredit upon the reputation of the police force.
Mr. Martosh stated that while the offence of discreditable conduct may consist of criminal activity, it also can clearly include behaviour that is quasi criminal or any conduct which is likely to bring discredit to the police service. Mr. Martosh argued that to properly interpret the word "likely" as used in section 2(1)(a)(xi) we must assess the potential of the conduct in question to bring discredit as seen through the eyes of a reasonable person.
Mr. Martosh noted that the standard of proof required under section 64(10) of the Act is "clear and convincing" which this Commission has found to require weighty, cogent and reliable evidence upon which as trier of fact, acting with care and caution, can come to a fair and reasonable conclusion that the officer is guilty of misconduct.
Mr. Martosh examined at some length the provisions of section 810 of the Criminal Code. He argued that two elements must be established before a Recognizance can be ordered against a defendant. These elements are:
i. the informant actually fears that the defendant will cause personal injury to her, her spouse, her child or will damage her property; and
ii. reasonable grounds must exist for the informant's fears.
Mr. Martosh argued that while the first condition is a subjective one and the second is objective both elements must be proven before a Court has grounds to make an order. In this regard the Court must be satisfied that the applicant's fear is reasonable and triggered by some action of the defendant. Furthermore, Mr. Martosh argued that although the Judge is not required to predict future harm, he or she must be satisfied from the evidence of the likelihood of future harm.
He noted that prior to any Recognizance being issued an accused has the right to know of the order being sought and has the right to be heard in defence. Mr. Martosh suggested that the Appellant's decision not to contest the section 810 application allowed the Judge to conclude that there were reasonable grounds based on Constable Lusted's Information to order the Peace Bond.
Given the above, Mr. Martosh argued that there was evidence to support the conclusion that the Appellant acted contrary to the norms that society expects of its police, and was therefore guilty of conduct that is likely to bring discredit upon the Toronto Police Service.
Mr. Martosh raised further arguments with respect to the nature of a disciplinary hearing under the Act and with respect to the nature of evidence that can be adduced pursuant to the provisions of the Statutory Powers Procedure Act.
Respondent's Position on Sentence.
Mr. Martosh argued that to overturn the penalty imposed by a Hearing Officer that this Commission must be satisfied that there was a manifest error in principle or the Hearing Officer failed to adequately consider all of the factors before him or her.
He pointed out that this Commission has ruled that the factors to be considered are the nature of the seriousness of the misconduct, the ability to reform or rehabilitate the officer and the damage to the reputation of the police force that would occur if the officer remained on the force. Furthermore Mr. Martosh noted that this Commission has ruled that other factors which are relevant in reaching a decision on penalty include employment history and experience, recognition of the seriousness of the transgression and the handicap or other relevant personal characteristics.
In summary, Mr. Martosh argued that the Hearing Officer did consider and apply all appropriate tests in reaching his decision on the penalty. Furthermore, he argued that the penalty imposed is already in the lower range of penalties available to the Hearing Officer. For these reasons Mr. Martosh asked us to affirm the penalty imposed.
In support of his arguments, Mr. Martosh referred us to a number of cases.
Decision:
This appeal raises a novel question. Both counsel for the Appellant and Respondent acknowledge that there are no cases in Canada that deal with the issue as to whether the entering into of a Peace Bond under the Criminal Code by a police officer can constitute an act of discreditable conduct.
On this point, we do not find Mr. Brauti's argument with respect to the principal of "implied exclusion" of statutory interpretation to be persuasive. There is no doubt that the argument would be more relevant if the only activities identified as discreditable conduct by the Code consisted of an officer being found guilty of an indictable criminal offence or an offence punishable upon summary conviction. This is not the case here.
The Code sets out in eleven subsections various types of behaviour that if proven, will lead to a finding of discreditable conduct.
The wording of section 2(1)(a)(xi) of the Code does not require finding of a criminal act for an officer to be found guilty of misconduct. Clearly the Legislature in drafting the Code felt it necessary to prohibit conduct that would not be criminal but nevertheless disorderly, prejudicial to discipline or likely to bring discredit upon the reputation of the police force.
How does this apply to the facts in this case? The only evidence presented against Constable Milton was the Information sworn by Constable Lusted, a brief transcript of the section 810 proceedings and the Recognizance issued by the Court. Ms. S. did not testify. Neither was there other direct evidence of Constable Milton's conduct.
We agree with Mr. Martosh's submission that the ordering of a Recognizance is not a criminal disposition in the sense of finding criminal guilt or acquittal, but rather a mechanism used to attempt to control future conduct.
Section 810 of the [Cr]iminal Code reads as follows:
810 (1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.
(2) A justice who receives an information under subsection (1) shall cause the parties to appear before a summary conviction court having jurisdiction in the same territorial division.
(3) The justice or the summary conviction court before which the parties appear may, if satisfied by the evidence adduced that the person on whose behalf the information laid has reasonable grounds for his or her fears,
a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace, and be of good behaviour for any period that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including the conditions as set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or
b) commit the defendant to prison for a term not exceeding twelve moths if he or she fails or refuses to enter into the recognizance.
The information sworn by Constable Rick Lusted for the purposes of the section 810 hearing in this case read as follows:
The informant says that he has reasonable grounds to fear and does fear that John Milton will cause personal injury to his spouse [S.] on account of a threat made between the 1st day of January 1998 and January 3, 2001 at Town of Ajax in the words or to the effect following, that is to say John Hamilton Milton #1930 sexually assaulted [S.] by forcing her to have intercourse against her will...
The Appellant at the section 810 hearing did not enter any evidence nor show cause as to why an order should not be made requiring him to keep the peace. Counsel representing the Appellant made the following statement to the Court:
Your Honour, Mr. Milton specifically denies the allegations, but is certainly -excuse me- content that this is a situation which warrants the Peace Bond being imposed, and does not wish to show cause on that basis.
The Crown then gave the Court a brief synopsis of the underlying allegations of non-consensual contact, and the allegations of harassment. The Crown made the following submissions to the Court:
Well, I'll be brief. Obviously they're sexual assault and criminal harassment type of allegations. The parties involved were ex-common law spouses, and there were allegations there was contact with the complainant that was not consensual in the course of their relationship. As well the relationship ended in 2001, and following that time it was described as a campaign of contacting her directly or indirectly by e-mail, phone calls, letters, flowers, etc., although she had told him she didn't want to have anymore contact with him, so that's the nature of the – I understand there is no acknowledgement of any criminal offence, but that's the basis that we are seeking the bond.
There was a brief discussion of the terms of the Peace Bond which the Appellant acknowledged through his counsel were acceptable. The Honourable Justice Payne made the following order:
I will exercise my discretion under s. 810 of the Criminal Code and order that you enter into a recognizance for 12 months, $500, no deposit. You will keep the peace and be of good behaviour. You will not associate or communicate directly or indirectly with [S.] You will remain at least 100 meters away from [S.]. You will remain at least 500 meters away from any residence, place of employment, or place of education of [S.] known to you. And you will remain out of any bowling establishment if Ms. [S.] is present.
All of the underlying criminal charges were then withdrawn by the Crown.
Is this clear and convincing evidence of misconduct as required by section 64 (10) of the Act? This Commission has in a number of cases confirmed that to be clear and convincing, the evidence upon which a decision is reached, must be weighty, cogent and reliable evidence upon which a trier of fact acting with care and caution can come to a fair and reasonable conclusion that the officer is guilty of misconduct. See Constable Richard Mowers and Hamilton-Wentworh Regional Police Service (1999) 3 O.P.R. 1327, Constable J. R. Carmichael and Ontario Provincial Police (1998), 2 P.L.R. 565.
The evidence before the Honourable Justice Payne at the section 810 hearing included the sworn Information of Constable Lusted. This Information was based on untested, hearsay allegations. To our mind this is not weighty, cogent or reliable evidence upon which a Hearing Officer could find the Appellant guilty of misconduct. It does not meet the clear and convincing evidentiary standard.
Could the Hearing Officer have concluded that by agreeing to the terms of the Peace Bond that the Appellant acknowledged that the allegations were true? On the facts of this case we think not. The Appellant through his counsel clearly denied the allegations. Constable Milton simply admitted that there was a "situation" which warranted the Peace Bond.
We agree with the submissions by Mr. Brauti, that it is impossible to judge what the Appellant's counsel meant in the use of the word "situation". We further agree with Mr. Brauti that the word "situation" could have a number of meanings in the context as used. It could have meant that the Appellant simply wished to settle the matter without the potential of a long and expensive trial or that there may be family situations that simply required the allegations to be resolved.
Whatever the meaning, this admission to our mind does not rise to the level of clear and convincing evidence of disorderly conduct on the part of Constable Milton.
The question then to be decided, is whether the mere fact that Constable Milton entered into a Peace Bond was "an act which is in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force." Mr. Martosh in his arguments referred us to a number of cases in which this Commission has established the approach to evaluate whether the conduct is "likely" to bring disrepute to the reputation of the police force.
In Constable Silverman and Ontario Provincial Police (1997) 3 O.P.R. 1181 at page 1187 this Commission stated that:
The measure to determine whether conduct has been discreditable is the extent of the potential damage to the reputation and image of the Service should the action become public knowledge.
In the case of Sergeant William T. Johnson and Barrie Police Service (1985), 2 O.P.R. 643 at 645, the test is set out was as follows:
The words of the offence are "likely to bring discredit".
It is an inviting argument to suggest that the odds on some result occurring are reduced below to the level of "probable" when such a result does not in fact occur. We do not however accept this argument and believe that the likelihood has to be viewed in advance and in the eyes of a reasonable person.
Can it therefore be said that the actions of the Appellant viewed "in advance and in the eyes of a reasonable person" would be seen as discreditable should it become public knowledge? We are not persuaded that this is the case. We agree with the submissions made by Mr. Brauti that to enter a Peace Bond has no greater evidentiary value than the fact that criminal charges were laid.
The purpose of the Peace Bond is to prevent future conduct and is not a punishment for past conduct. As previously stated the allegations upon which the Peace Bond was issued were specifically denied by the Appellant at the section 810 Hearing. We cannot conclude that a reasonable person having full knowledge of this denial might conclude that the actions of the Appellant by voluntarily entering into a Peace Bond would be likely to bring discredit upon the police service.
Further, the Prosecutor at the disciplinary hearing had the option of calling Ms. S. or other direct evidence of harassment or sexual misconduct on the part of Constable Milton. He chose not to do so, but instead chose to rely upon the Peace Bond itself. Alone, we do not think this is clear and convincing evidence of misconduct.
We are further persuaded by Mr. Brauti's submissions that for policy reasons we should not conclude that by simply entering into a Peace Bond that an officer has committed an act of discreditable conduct.
Although there is no question that police officers are judged on a high standard of care, we are concerned that to remove the ability of police officers to avail themselves of the Peace Bond mechanism is not in the best interests of justice. There is no doubt that Peace Bonds are employed as a means of resolving criminal allegations without the need of a trial.
For the above reasons we find that the Hearing Officer made a manifest error at law in finding the Appellant guilty of discreditable conduct pursuant to section 2(1)(a) (xi) of the Code. The appeal against the conviction is therefore allowed. As a result, there is no need for us to deal with the appeal against penalty.
DATED AT TORONTO THIS 7th DAY OF APRIL, 2004.
Sylvia Hudson Vice-Chair, OCCPS
G. Douglas Smith Member, OCCPS