OCCPS #04-05
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE GARTH MOORE Appellant
DURHAM REGIONAL POLICE SERVICE Respondent
Presiding Members: Peter J. Doucet, Member Sylvia Hudson, Vice-Chair
Appearances: Gary R. Clewley, Counsel for the Appellant Brian Fazackerley, Counsel for the Respondent
Hearing Date: Tuesday, May 18, 2004
This is an appeal by Constable Garth Moore of Durham Regional Police Service from a finding of misconduct decided by Hearing Officer Jim Lockwood on September 4, 2003.
The subject matter of the misconduct was the allegation that Constable Moore, between March 1, 2002 and May 31, 2002, intentionally made numerous harassing phone calls to Constable Caroline Stenzel, a member of Durham Regional Police Service.
Background
The case is a factually unusual one.
Constables Moore and Stenzel had worked closely together for 8 years and enjoyed an excellent working relationship free of any confrontation or harassment. According to the testimony of Constable Stenzel, at no time during their working relationship did Constable Moore do or say anything inappropriate towards her. She did not believe that he had any reason whatsoever to harass her or bother her in any way. When she learned that he was the source of the repeated anonymous and harassing phone calls to her, she was utterly shocked and disbelieved that he could do this.
The calls in question were made from the cell radio phone issued by Durham Regional Police Service to Constable Moore. On that phone he had programmed the 9 key as a speed dial key for Constable Stenzel, which meant that the depressing and holding of that key would command the phone to dial the pre programmed number of Constable Stenzel.
The evidence at the hearing was that the calls made to Stenzel from Moore’s cell phone were frequent (44 times over the period in question). At no time did Moore speak to Stenzel. Stenzel would hear different things, ranging from a talk radio programme which Moore was known to listen to, to convenience store background noise, to silence, to cell phone beeps. There was no evidence to suggest any words or sounds directed by Moore to Stenzel during any of these calls. The harassing nature of the calls came from their anonymity, their frequency, and the interpretation placed upon them (understandably) by Stenzel. Constable Moore did not testify at his hearing.
The essence of the defence was that Constable Moore did not make these calls intentionally and that the calls emanated from the phone accidentally. Expert evidence was called to show that on Moore’s phone, the 9 key was most prone to accidental activation. It was slightly elevated over the other keys. It was fifth of the nine keys in respect of requiring force to activate. It required the least amount of push distance to activate [Transcript of Proceedings, Volume II, page 17, page 30]. In addition, evidence was also called that another person whom Moore had programmed into his speed dial, Barbara Brumer, also received similar calls from Moore, containing background noise, convenience store conversation, and talk radio. The argument on behalf of Constable Moore was that the phone was being activated accidentally and that the calls were not intentionally made.
The Hearing Officer heard the evidence of the witnesses and concluded, at page 29 of his decision of September 4, 2003 as follows:
I have reviewed the evidence carefully and I have considered the likelihood of the accidental activation explanation. I just do not believe based on the preponderance of probability that these phone calls were made by accidental activation.
Therefore, based on clear and convincing evidence, I believe these phone calls were made intentionally and I find Constable Moore guilty of discreditable conduct.
Decision
Our role on appeal is not to second-guess the Hearing Officer. Our function is a restricted one.
We may not interfere with a decision of a Hearing Officer unless that decision is completely void of evidentiary foundation or there is a manifest error in principle.
These principles are well accepted and found in many decisions including Williams and OPP (1995), 2 O.P.R. 1047 at 1058 (OCCPS), Norris v. Loranger (1998), 2 P.L.R. 493 (Ont. Bd. Inq.), Krug and Ottawa Police Service (OCCPS, Jan 21, 2003) and Blowes- Aybar and Toronto Police Service (OCCPS, March 7, 2003).
Despite the very able argument of Mr. Clewley on behalf of the appellant officer, we are not convinced that the decision of the Hearing Officer lacked evidentiary foundation or that the hearings officer has committed a manifest error in principle. We do accept Mr. Clewley’s submission that the Hearing Officer, in giving his decision, must do more than simply recite the magic words of the test. Here the Hearing Officer has done much more. He carefully analyzed the evidence and came to a decision based on that evidence. While it was open to him to find that the explanation of accidental activation as advanced by Constable Moore was believable, it was also open to him on the evidence to find that he did not accept that explanation. The best evidence of the experts was that accidental activation was a possibility - but not the only possibility.
The expert evidence at the hearing did not dispel the possibility that Constable Moore made the calls intentionally and it was open for the hearings officer to so find on the evidence before him.
Had we heard the case in the first instance, we might well have found that the excellent working relationship, the behaviour of Constable Moore, the receipt of similar calls by Ms. Brumer, and the expert evidence about the 9 key on Constable Moore’s phone being most likely to be accidentally activated, all combined to demonstrate that there was no misconduct proven on clear and convincing evidence, but that is not our role on appeal. There was an evidentiary basis for the finding of the Hearing Officer that the misconduct was proven on clear and convincing evidence, we see no manifest error in principle, and we therefore defer to the learned Hearing Officer who was best suited to make the decision which he made on all of the evidence.
The appeal is accordingly dismissed.
DATED THIS 27TH DAY OF MAY 2004.
Peter J. Doucet Member, OCCPS
Sylvia Hudson Vice-Chair, OCCPS