Mancini v. Courage, 2004 CanLII 76810

ONTARIO CIVILIAN POLICE COMMISSION

DATE: August 12, 2004

FILE: OCPC-04-009

CASE NAME: SUSAN MANCINI AND CONSTABLE MARTIN COURAGE OF THE NIAGARA REGIONAL POLICE SERVICE

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED

BETWEEN:

Susan Mancini APPELLANT

-and-

Constable Martin Courage (Niagara Regional Police Service) RESPONDENT

DECISION

Panel: Murray W. Chitra, Chair Brenda Weese, Member

Hearing Date: April 15, 2004

Hearing Location:

Appearances: Bruce Robertson, Counsel for the Appellant Brian R. Simpson, Counsel for the Respondent

I. Introduction

1. This is an appeal brought under section 70(3) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the "Act") by Susan Mancini from a decision of Superintendent Steven R. Hibbard (the "Hearing Officer") dated June 27, 2003.

2. The decision was that Constable Martin Courage was not guilty of the disciplinary offence 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").

II. Background

3. The facts giving rise to this appeal are complex. They are however, essentially without dispute. There are a number of details worth noting.

4. Constable Martin Courage is 49 years old. He has been employed as a police officer with the Niagara Regional Police Service (the "Service") for 27 years. He is assigned to the Uniform Branch at 33 Division in Welland, Ontario.

5. In October of 2000, Constable Courage began a personal relationship with Susan Mancini. In March of 2001, Ms. Mancini purchased a house on Joshua Court in Welland. Constable Courage provided her with $10,000 to be used towards the purchase price of that home. The residence was in Ms. Mancini's name.

6. Constable Courage sold his residence. On July 25, 2001 Constable Courage moved into a room at Joshua Court. Within weeks the two had a serious disagreement. Part of this dispute appears to have involved Constable Courage's prior relationship with Ms. Mancini's sister two decades earlier.

7. Ms. Mancini asked Constable Courage to leave. He refused. On August 16, 2001 she called the police and reported an "unwanted person". Because the incident involved an off-duty police officer, Acting Sergeant Joseph Payk was dispatched. He arrived at Joshua Court just before 8:00 p.m.

8. Acting Sergeant Payk knew Constable Courage. They had attended Police College in Aylmer together in 1976. At one point Constable Courage had been married to his sister.

9. Acting Sergeant Payk tried to resolve matters but was unsuccessful. There was no suggestion that Constable Courage had been drinking or aggressive. However, Ms Mancini was visibly upset, at times crying and sobbing. She wanted Constable Courage out of her home.

10. Acting Sergeant Payk asked Constable Courage to leave. He refused to do so because he was of the view that he was entitled to remain. Acting Sergeant Payk then arrested Constable Courage to prevent a breach of the peace.

11. Acting Sergeant Payk gave a number of reasons for this decision. One was his 27-year acquaintance with Constable Courage. He described Constable Courage as follows:

To be blunt, he can be very volatile in certain situations, especially when angered, he's quick to anger. He's a very stubborn, obstinate character, and doesn't take criticism very lightly … He was … I could liken it to maybe a powder-keg, ready to blow, because he … I could see he was controlling himself not to anger.¹

12. Acting Sergeant Payk handcuffed Constable Courage, placed him in a cruiser and drove him to 33 Division where he was lodged in a cell. Constable Courage was upset but cooperative.

13. Constable Courage was released four hours later. Before he did so, he was advised by Staff Sergeant Symonds not to return to Joshua Court. He agreed. Staff Sergeant Symonds advised the Divisional Commander, Inspector Dagenais, what had occurred.

14. The following morning, Constable Courage and Inspector Dagenais met at 33 Division and had a discussion that lasted almost an hour. Constable Courage expressed concern that his arrest had been unlawful. He informed Inspector Dagenais that Ms. Mancini owed him money. Inspector Dagenais then:

advised him [Constable Courage] that he should move on and … I explained to him the, you know, the normal way to collect this back, if he felt so inclined, and that he needed to proceed civilly or through lawyers … and that him being determined to occupy the residence was not going to resolve anything … Again, my direction to him at the time was that if he was going to have any contact with her, he'd have it through a third party, and do so peaceably.²

15. Inspector Dagenais described this conversation as "counseling" to "prevent any further occurrence or inappropriate actions on the part of the officer".³

16. Constable Courage moved out of Joshua Court. However, matters did not end there. On September 10, 2001, while off duty, Constable Courage went to the bank where Susan Mancini worked. Both he and Ms. Mancini had a joint account at that location which Ms. Mancini had closed.

17. Ms. Mancini saw him standing in line waiting to see a teller. She described him as crying, unshaven and emotional. He had just completed a night shift. She invited him into her office and provided him with copies of the paperwork relating to the closed accounts. She described him as "being at times, incoherent, crying, asking questions that were bizarre".⁴ When he left she was so concerned about his mental health that she called Constable Courage's immediate supervisor, Staff Sergeant Hargreaves.

18. Arrangements were made to take possession of Constable Courage's service pistol. William Boston, the Inspector who was in charge of 33 Division at that time was notified. Ms. Mancini was interviewed. Constable Courage was contacted. The following day Inspector Boston and Constable Courage's paths crossed in the Town of Pelham where a local community policing meeting was being held.

19. There was a brief discussion. Constable Courage explained that he had been at the bank to update his passbook. He acknowledged that he was upset because of the breakup and financial difficulties. Inspector Boston determined that it was appropriate to return Constable Courage's service revolver.

20. However, Inspector Boston called Constable Courage into his office on the morning of September 14, 2001 for a meeting that lasted approximately half an hour. He informed Constable Courage that Ms. Mancini had made it clear that "she did not wish to have any more communications with [him], and did not want him coming around her residence or place of employment."⁵

21. Inspector Boston further stated that he:

… said to Constable Courage that he should not call her, should not attend at her place of employment, or residence. I advised him not to contact her unless a third party was involved. Constable Courage wasn't happy with the police involvement in the … what he perceived as a private matter. … I also advised Constable Courage if he did go around her place of employment or residence or whatever, and she called to complain about anything, harassment or whatever, it would be investigated and he could possibly be charged.⁶

22. Inspector Boston described this advice in a memorandum that he sent to Detective Sergeant Debbie Beaulieu, who was the Service's Domestic Violence Coordinator.

23. Detective Sergeant Beaulieu had been meeting with Ms. Mancini. She conveyed to Ms. Mancini that Constable Courage would be told to stay away from her home and work. Ms. Mancini was told to call the police if he showed up at either place.⁷

24. Things did not end there. Constable Courage saw Inspector Boston's comments as 'advice' and 'not a direct order'. He chose not to follow that advice.⁸

25. On October 9, 2003 Constable Courage was on duty. According to him that morning he had received a form from his health insurer listing Ms. Mancini as a beneficiary. He stated that he decided to ask Ms. Mancini whether or not she wished to remain on the policy.

26. Sometime around 9:00 a.m. he drove his police cruiser to the parking lot of the bank where Ms. Mancini worked. He was in uniform. The bank was within Constable Courage's patrol zone. Shortly, after Constable Courage arrived Ms. Mancini drove into the parking lot.

27. There are two versions of what occurred next. Ms. Mancini states:

… Marty got out of the cruiser and asked me why I was doing what I was doing, and that he loved me, and that he wanted to see me that night. And I said I wouldn't see him, and he said, "Well, at least let me call you". Again, I was scared, I was embarrassed … I think I agreed to let him call me because I was … I wanted to get out of his presence, and I didn't want to see him, and I felt a phone call was safe. And I went to work.⁹

28. According to Constable Courage:

I approached Susan and I says, "Hello". I said, "Susan, I've received this document, that you're on my benefits. Do you want me to leave you on my benefits?" And she said, "No, Marty. You'd better take me off." And I said, "How are you doing?" She said, "Not too good". I said, "Why? What's wrong?" She said, "I'm only working half days at the bank". I said, "Why? What's wrong?" She indicated back troubles …. I said, "Susan, do you still love me?" And she said, "Yes, I do". That is where my eyes were teary. I was not crying, sobbing … I had watery eyes when she told me she still loved me. I said, "Susan, can I call you?" She said, "Yes, Marty, you can call me". I said, When could I call you?" She said, "Call me sometime in the afternoon. I only work half-days. Call me at home".¹⁰

29. Later that day, Constable Courage called Ms. Mancini at her home using a service cell phone. They spoke for 28 minutes. There was a subsequent call initiated by Ms. Mancini that lasted a further 17 minutes before the battery to the police cell phone expired.

30. According to Ms. Mancini, both conversations were heated. She said that she told him that the relationship was over and to stop bothering her. Constable Courage stated that after the first call, he believed that their relationship was finished, but on the second call Ms. Mancini told him that that she did not want things to end that way.

31. Constable Courage then wrote Ms. Mancini a letter. Just before 6:00 p.m. Ms Mancini was sitting on her porch at her residence on Joshua Court. She saw Constable Courage's police cruiser drive by and stop. Constable Courage then rolled down the window and gave the letter to a nine-year old girl with a dollar. He asked the girl to deliver the correspondence to Ms. Mancini.

32. Constable Courage indicated that he gave the note to the little girl because he "felt that it was the appropriate thing to do, not to go to her residence, because I was told not to attend that residence."¹¹

33. The letter was delivered. The one-and-a-half page correspondence essentially pleaded with Ms. Mancini to reconsider her decision. Constable Courage asked for one more chance to start afresh and "forget about the outside pressure and interference of family and this police department."

34. The following day Constable Courage called the Branch Manager of the Bank where Ms. Mancini worked. He arranged an appointment with her for November 13, 2001.

35. Ms. Mancini's birthday was November 9th. Constable Courage telephoned her at her home on the morning of Saturday, November 10th to wish her happy birthday and to ask her to go out with him. She declined, told him not to call and hung up.¹²

36. Constable Courage arrived at the bank on November 13th and was sitting in the waiting area. He was not working that day. Ms. Mancini approached him and asked if he was there to see her. Constable Courage indicated "no" because she did not want to hear what he had to say.

37. Constable Courage followed her and stood in the door of her office. According to Ms. Mancini, he demanded $7,000 and the return of Lion King tickets that had been previously purchased for her birthday. Before he went into the Manager's Office Ms. Mancini states that Constable Courage told her "You can kiss your job goodbye".¹³

38. When Constable Courage went into the Manager's Office Ms. Mancini called 911. Two officers arrived and waited with Ms. Mancini until Constable Courage exited the Manager's Office. They spoke to Constable Courage in the parking lot. Given that Constable Courage had an appointment at the bank no further action was taken.

39. On November 19, 2001 Ms. Mancini resigned from her job at the bank. She subsequently filed a public complaint that eventually resulted in a hearing being directed into the conduct of Constable Courage.

The Hearing

40. For the purposes of this appeal, the relevant allegation against Constable Courage at the hearing was that he had acted "in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force" in contravention of section 2(1) (a)(ix) of the Code.

41. The particulars of that allegation, directed at Constable Courage, was that:

Between August 15 2001 and November 30 2001 you engaged in a course of behaviour that was known to be vexatious by continuing to contact directly and/or indirectly Ms. Susan Mancini, a person you had been involved in a relationship with, after you were told your actions were improper and to cease.

Your behaviour occurred both off duty and on duty while in uniform. Specific instances of inappropriate actions include:

• Aug. 16 - You were arrested for Breach of the Peace

• Sept. 14 - You were advised not to contact Ms. Mancini anymore yet you persisted

• Oct. 9 - On duty you attended Ms. Mancini's work place causing her distress

• Oct. 9 - On duty you attended Ms. Mancini's home

42. Constable Courage pled "not guilty".

43. The hearing itself took place over the course of nine days between August 20, 2002 and June 4, 2003. Both Constable Courage and Ms. Mancini were represented by counsel.

44. Almost 40 exhibits were received. Thirteen witnesses testified. These included Ms. Mancini, Acting Sergeant Payk, Staff Sergeant Symonds, Inspector Dagenais and Inspector Boston. Constable Courage also testified. As well, his counsel called a number of witnesses. They included Sergeant Hargreaves, Vivi Bones (Ms. Mancini's bank manager), Ms. Mancini's sister and Detective Sergeant Cameron (the public complaint investigator).

The Hearing Officer's Decision

45. During the course of the disciplinary proceeding the Hearing Officer made it clear that his decision would be based on events "as a whole" and "all of it as a package".¹⁴

46. The Hearing Officer released that decision on June 27, 2003. In it he examined the evidence of the various witnesses. He described all those who testified (with the exception of Ms. Mancini's sister) as being honest, forthright, trustworthy, straightforward or credible. The evidence of Ms. Mancini's sister characterized as being neither truthful nor relevant.

47. The Hearing Officer found that the fundamental facts before him were not in dispute. He stated that it was "agreed by all parties to the hearing that events did occur on the dates and times set out in the statement of particulars. The context and interpretation of these events was the focus of the hearing."¹⁵ He determined that the conduct of Constable Courage must be measured by the reasonable expectations of the community.

48. He found that Constable Courage's arrest by Acting Sergeant Payk on August 16, 2001 to prevent a breach of the peace was both proper and lawful. However, he concluded that given Constable Courage's mistaken belief that he was part owner of the home, his refusal to leave and subsequent arrest would not be seen by the community as warranting "a label of misconduct".¹⁶

49. The Hearing Officer found that neither Inspector Dagenais nor Inspector Boston had ordered Constable Courage not to have any further contact with Ms. Mancini. Rather, they "counseled, gave advice, forewarned, and even had a "fatherly chat"" with him. This, coupled with the absence of any detailed notes lead the Hearing Officer to conclude that "these two Senior Officers of the Niagara Regional Police Service did not see Constable Courage's behaviour as bringing discredit upon the reputation of the Service."¹⁷

50. The Hearing Officer noted that the Statement of Particulars alleged that Constable Courage had "engaged in a course of behaviour that was known to be vexatious by continuing to contact directly and/or indirectly Ms. Susan Mancini".

51. He stated that the term "vexatious" meant "without reasonable or probable cause or excuse".¹⁸

52. The Hearing Officer found that Constable Courage was legitimately at the bank on September 10, 2001. He noted that Constable Courage was not in uniform because he was not working "and there is no evidence that the general public knew he was a police officer". The Hearing Officer stated that he accepted that Ms. Mancini was embarrassed by Constable Courage's presence on that day but, "his description did not suggest that she should be afraid of him".¹⁹

53. The Hearing Officer described the meeting in the parking lot of the Royal Bank on the morning of October 9, 2001 in a similar fashion. He noted that Constable Courage appears to have used the arrival of a medical benefits card as "a convenient opportunity … to converse with Ms. Mancini in the hopes of reconciliation."

54. While he questioned Constable Courage's motives for the meeting he stated that given that one month had passed since the last contact that he did not find Constable Courage's conduct to constitute either "persistent or vexatious behaviour". As well, given the subsequent exchange of phone calls, the Hearing Officer did not see the conduct of Ms. Mancini as being that of "someone who is afraid".²⁰

55. The Hearing Officer appears to have had some difficulty with Constable Courage's actions later that same day when he drove by Ms. Mancini's house in his police car and paid a nine-year old a dollar to deliver a note to her. The Hearing Officer found that Constable Courage displayed "extremely poor judgment involving a child as his intermediary" but heard "no evidence that the child, who knew Constable Courage, was adversely affected in any way. Paying a child to run a errand is not misconduct."²¹

56. The last issue that the Hearing Officer dealt with was Constable Courage's visit to Ms. Mancini's bank on November 13, 2001. He concluded that that Constable Courage had a legitimate reason to be there (i.e. official business with the Bank Manager). Further, he noted that it was Ms. Mancini who had approached Constable Courage while he was in the bank's waiting area.

57. Given the above, the Hearing Office concluded that he "did not find any clear and convincing evidence that suggests that Constable Martin Courage engaged in a course of behaviour that was known to be vexatious and by doing so brought discredit upon the reputation of the Niagara Regional Police Service." He found Constable Courage not guilty.

58. It is this decision that is the subject of this appeal.

Preliminary Motion

59. Prior to the commencement of the appeal, a motion was brought on behalf of Ms. Mancini for permission to introduce new evidence.

60. The evidence in question consisted of an affidavit by Ms. Mancini's sister. This document primarily concerned a sexual contact between her and Constable Courage more than two decades earlier.

61. Ms. Mancini had testified about that relationship on behalf of Constable Courage at the original disciplinary hearing. Her testimony had been completely rejected by the Hearing Officer. He concluded that she was "not a credible witness" and could not conclude that her testimony was "either truthful or relevant".²²

62. Section 70(5) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the "Act") states:

70(5) A hearing held under this section shall be an appeal on the record, but the Commission may receive new or additional evidence as it considers just.

63. The Act does not set out what factors we are to take into account when considering whether or not it would be "just" to receive new or fresh evidence.

64. However, over the years the Commission has looked to the decision of the Supreme Court of Canada in Palmer v. Her Majesty the Queen (1980), 1979 CanLII 8 (SCC), 1 S.C.R. 759 for guidance. While this case deals with the admission of new evidence in criminal appeals, it enunciates certain helpful principles.

65. At page 775 of the decision, Mr. Justice McIntrye sets out the following four-part test:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided this general principle will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief; and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

66. This test obviously must be viewed in light of the Commission functions as described in the Act.

67. We determined that we would not admit the affidavit as new evidence. The record discloses that Ms. Mancini's sister testified at the original proceeding and had been subject to vigorous cross-examination on the essential issues reflected in the document.

68. Second, the proposed evidence concerned an acknowledged sexual contact that took place almost 25 years before the events that gave rise to Constable Courage's disciplinary proceeding (i.e. contacts between the Appellant and Respondent between August 15, 2001 and November 30, 2001). As such, it is not clear how such evidence could be relevant to any decisive matter.

69. Third, there were real concerns with respect to credibility. Ms. Mancini's sister has produced a number of different written statements reflecting different versions of the events in question. She has acknowledged substance abuse and psychiatric problems. The Hearing Officer had already determined that evidence that she had provided under oath was not truthful.

70. Finally, we were not satisfied that the evidence in question could reasonably be expected to have affected the result of the disciplinary process. This is particularly the case given that the Hearing Officer found that nothing that Ms. Mancini's sister had to say was relevant.

71. We then turned to the appeal itself.

Appellant's Position

72. Mr. Robertson, on behalf of Ms. Mancini challenged the finding of the Hearing Officer that Constable Courage was not guilty of discreditable conduct.

73. He alleged that the Hearing Officer made a number of errors, exceeded his jurisdiction, made mistakes of fact, improperly fettered his discretion and failed to properly appreciate the evidence presented to him.

74. Mr. Robertson argued that the proper standard of review for decisions of Hearing Officers is correctness. On this point he cited Pushpanathan v. Canada (Ministry of Citizenship and Immigration) 1998 CanLII 778 (SCC), [1998], 1 S.C.R. 982 (S.C.C.) and Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.).

75. Mr. Robertson asserted that the Hearing Officer erred when he focused on the question of whether or not Constable Courage was ordered not to contact Ms. Mancini. He suggested that the proper question for the Hearing Office should have been whether or not Constable Courage had continued to contact Ms. Mancini after he was told his actions were improper and to cease.

76. Mr. Robertson argued that the Hearing Officer ignored the clear evidence of both Inspectors Dagenais and Boston that they told Constable Courage not to contact Ms. Mancini.

77. Further, Mr. Robertson asserted that it was not professional for Constable Courage to employ the services of a child to deliver a love letter and that the Hearing Officer failed to consider the adverse impact of such communication on Ms. Mancini.

78. Mr. Robertson also argued that the Hearing Officer was required to examine all aspects of Constable Courage's conduct to determine whether or not any portion of it might bring discredit to the Service. He suggested that evidence disclosed several examples of behaviour that individually might be characterized as discreditable.

79. Mr. Robertson suggested that the Hearing Officer fettered his discretion by failing to rely upon uncontradicted testimony of a number of witnesses and as such failed to have proper regard for "all relevant circumstances". On these points he cited: Sebastian v. Saskatchewan (Worker's Compensation Board) (1993), S.J. No. 392 (Sask. Q.B.), Dalton v. Criminal Injuries Compensation Board (1982), 1982 CanLII 2075 (ON HCJ), 36 O.R. (2d) 394 (Ont. Div. Ct.) and Cheng v. Canada (Minister of Citizenship and Immigration) (2001), 13 Imm. L. R. (3d) 28 (F.C.T.D.).

80. By way of remedy Mr. Robertson asked that the decision of the Hearing Officer be set aside and a finding made that Constable Courage is guilty of the disciplinary infraction alleged. He asked that Constable Courage be assessed a penalty of loss of sixty hours pay and ordered to cease and desist any further contact with Ms. Mancini and her family.

81. In the alternative we are requested to: i) set aside the decision of the Hearing Officer and order a new hearing; or ii) order mandamus to compel the Hearing Officer to reconsider his decision; and iii) award Ms. Mancini her costs on a substantial indemnity basis.

Respondent's Position

82. Mr. Simpson, on behalf of Constable Courage requested that this appeal be denied.

83. Mr. Simpson pointed out that it is the role of the Hearing Officer to make assessments of credibility and weigh all of the evidence. The burden of proof in disciplinary hearings is "clear and convincing evidence". The test to be applied is whether or not the conduct of the officer can objectively be perceived to be discreditable.

84. On these points Mr. Simpson drew our attention to Armstrong and Peel Regional Police Service (18 July, 2002, O.C.C.P.S.), Blowes-Aybar and Toronto Police Service (18 August, 2003, O.C.C.P.S.) and Krug and Ottawa Police Service (21 January, 2003, O.C.C.P.S.).

85. Mr. Simpson argued that it is not the role of the Commission on appeal to second-guess or re-hear a case if the decision of the Hearing Officer is reasonable and supported by evidence. Further, he asserted that our function is to determine whether or not the conclusions of the adjudicator are void of evidentiary foundation, display manifest error, or ignore conclusive or relevant evidence.

86. On these matters he cited Geske and Hamilton-Wenworth Police Service (3 July, 2003, O.C.C.P.S.) and Williams and Ontario Provincial Police, Blackburn and Niagara Regional Police Service (17 September, 2003, O.C.C.P.S.).

87. On the question of remedy, Mr. Simpson argued that the Commission had no authority to direct the parties not to contact each other, order a new hearing, issue mandamus or in the circumstance order costs. He stated that only our authority is to confirm, vary or revoke the decision in question or substitute our own decision.

III. Decision

88. Section 70(3) of the Act requires the Commission to hold a hearing upon receiving notice from a complainant that they are appealing a finding "that misconduct or unsatisfactory work performance was not proved on clear and convincing evidence". Section 70(5) provides that such a hearing is an appeal on the record.

89. This Commission has adopted a uniform standard when considering such appeals. Essentially, the Commission will only interfere with the decision of the Hearing Officer if it is void of evidentiary foundation, misapprehends the evidence, or demonstrates a clear error of law. It is not the role of the Commission to second-guess a Hearing Officer or make findings of credibility.

90. These principles are well reflected in a number of previous Commission decisions. The most frequently cited precedent is Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.).

91. In the case before us, Constable Courage faced an allegation of discreditable conduct. Specifically, that aspects of his behaviour between August 15 and November 30, 2001 demonstrated that he had acted "in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation" of the Niagara Regional Police Service.

92. The concept of discreditable conduct covers a wide range of potential behaviours. The test to be applied is primarily an objective one. The conduct in question must be measured against the reasonable expectation of the community.

93. It is not necessary to establish actual discredit. As the Commission noted in Silverman and Ontario Provincial Police (1997), 3 O.P.R. 1181 (O.C.C.P.S.) at 1187: "The measure used to determine whether or not conduct is discreditable is the extent of the potential damage to the reputation and image of the service should the action become public knowledge."

94. It is not even necessary that the conduct in question offend, frighten or be "vexatious" to the individual who is the object of the action in question. This is reflected in a number of Commission decisions. An example is Burdett and Guelph Police Service (13 May, 1999, O.C.C.P.S.).

95. That case concerned a police officer whose home was broken into twice. A suspect was identified. The officer personally delivered a Christmas card to that individual which ended with the statement: "My patience has run thin, Eric. You can't hide from me, Eric. Do the right thing Eric before my patience runs out! Merry Christmas from the guy you don't want to piss off any further." ²³ The officer was charged with discreditable conduct.

96. In its decision the Commission noted:

The recipient of the card said that he received a "weird" card from a gentleman who was "nice, polite and well dressed" whom he had never seen before. He also testified that this card did not affect him in "any way shape or form". EP was unaware that Constable Burdett was a police officer.

Counsel for the Appellant has asked us to find that this action on the part of Constable Burdett was not likely to bring discredit on the police service as there was no connection between Constable Burdett's occupation and this action. We do not agree.

In our view, what Constable Burdett did can be perceived as threatening. The fact that the card had no impact on EP does not alter the nature of his act or make it right. As a police officer of many years standing, Constable Burdett ought to have known that personally delivering a threat cloaked as gentle persuasion in a Christmas card was not the way to deal with this situation.²⁴

97. The same principle is articulated in Lewin and Toronto Police Service (2001), 3 O.P.R. 1472 (O.C.C.P.S.).

98. Also, it is not necessary in order to sustain a finding of discreditable conduct to prove each and every allegation contained in a Statement of Particulars or that there be ongoing offensive behaviour. If a Hearing Officer finds that any one or more of the allegations is proven, then the Hearing Officer can find discreditable conduct. See Hewitt and Devine and Toronto Police Service (1999), 3 O.P.R. 1372 (O.C.C.P.S.).

99. An example of this can be found in Sterling and Hamilton-Wentworth Regional Police Service (1999), 3 O.P.R. 1356 (O.C.C.P.S.). That case concerned an officer who performed a number of unauthorized criminal records (CPIC) checks. He was charged with neglect of duty.

100. In its decision the Commission noted at page 1366:

Although we are satisfied that the Hearing Officer has reached a proper conclusion that Constable Sterling contravened CPIC Information Handling Policy and Procedure of the Service by conducting CPIC inquiries against E.J., K.S. and N.G., we do wish to comment on the Appellant's argument that this charge must have failed unless all three elements set forth in the Statement of Particulars had been proven.

We do not agree with this argument … It is irrelevant in our opinion whether the prosecution was able to prove that all six separate CPIC inquiries were inappropriate. We are satisfied that the charge against Constable Sterling would have been substantiated if only one or more of the CPIC inquiries had proved to be conducted for no employment related reason.

101. Other cases which make the same point include Leone and Rasmussen and Catalano (4 November, 1992, Ont. Bd. Inq.), Turgeon and Ontario Provincial Police (1999), 3 O.P.R. 1367 (O.C.C.P.S.) and Millar and Ontario Provincial Police (1995), 2 O.P.R. (2d) 1063 (O.C.C.P.S.).

102. How do these principles apply to the facts of this case?

103. It is evident from the record that the Hearing Officer presided over a complex proceeding that lasted nine days. He heard evidence from thirteen witnesses. He found all of their testimony (with the exception of Ms. Mancini's sister) to be credible. He noted that there was no dispute that the events in question occurred as set out in the Statement or Particulars. We see these as reasonable conclusions.

104. The Hearing Officer stated that his approach was to review this evidence "as a whole". To our mind, this approach is problematic. Clearly, there is nothing wrong with examining all of the evidence for context. However, it is the responsibility of a Hearing Officer to ensure that no single act articulated in a Statement of Particulars contravened the Code of Conduct.

105. Leaving this aside, it is evident that the Hearing Officer examined the various incidents identified in the Statement of Particulars. Further, he properly articulated the test to be applied (i.e. reasonable expectations of the community) and burden of proof (i.e. clear and convincing evidence).

106. That being said, the Hearing Officer clearly introduced some irrelevant and subjective elements to his analysis. Specifically, he noted that:

• Neither Inspector Boston or Dagenais saw Constable Courage's conduct as bringing discredit upon the reputation of the Service;

• Constable Courage's appearance on September 10th when he went to the bank did not suggest that Ms. Mancini should be afraid of him;

• There was no evidence that anyone at the bank knew Constable Courage was a police officer;

• Ms. Mancini's agreement to call Constable Courage on the afternoon of October 9th was not the conduct of someone who was afraid; and

• There was no evidence that the nine-year old child who delivered Constable Courage's love note to Ms. Mancini on October 9th was adversely affected in anyway.

107. With the greatest respect to the Hearing Officer, the perceptions of Constable Courage's superiors, the actual knowledge of bank patrons about Constable Courage's occupation or the state of mind of Ms. Mancini or the nine-year old are irrelevant to the assessment of the nature of the conduct in question.

108. The proper question is whether or not a reasonable person in the community would find that the conduct of the officer (if it were to be made public) would likely discredit the reputation of the police force.

109. Further, the Hearing Officer appears to have placed some significance on the fact that Constable Courage was not "ordered" by either Inspector Dagenais or Boston to have no further contact with Ms. Mancini. The Code of Conduct contains a specific disciplinary offence for failing to obey an order. It states:

2(1) Any … police officer commits misconduct if he or she engages in …

(b) Insubordination, in that he or she …

(ii) without lawful excuse, disobeys, omits or neglects to carry out any lawful order.

110. This however, was not the allegation brought against Constable Courage.

111. For the above noted reasons, we believe that the decision of the Hearing Officer is sufficiently tainted with error that it cannot stand.

112. Notwithstanding the request of the Appellant, we have no authority to order a new hearing. See Mullholland and Niagara Regional Police Service (25 March, 2003, O.C.C.P.S.) and Blackburn and Niagara Regional Police Service (17 September, 2003). Further we have no power to award costs, issue mandamus or compel the Respondent not to contact the Appellant.

113. Rather, section 70(6) of the Act states that we may only "vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police …"

114. With that in mind the salient undisputed facts of this case disclose that:

• Constable Courage was arrested by a superior officer he had known for 27 years and taken in handcuffs to the police station where he worked and lodged in a cell;

• Constable Courage was counseled on three occasions by superior officers to stay away from Ms. Mancini;

• Ms. Mancini was referred to the Niagara Regional Police Service's Domestic Violence Coordinator who told her to contact the police if Constable Courage showed up at either her work or home;

• Constable Courage went to Ms. Mancini's place of employment on three occasions (once in uniform while on duty driving a police cruiser);

• Ms. Mancini called the police on two occasions when Constable Courage showed up at her place of employment; and

• While on duty and in uniform Constable Courage drove his police cruiser to Ms. Mancini's home and paid a nine-year old child to deliver her a love note.

115. Even acknowledging the emotional turmoil inherent is the breakup of any relationship, Constable Courage's beliefs about his interest in Ms. Mancini's residence, concerns about other unresolved financial matters and his strong feelings about his employer's interference in his personal life - aspects of his conduct strike between August 15 and November 30, 2001 strike us as likely to lead reasonable members of the community to question the reputation of the police service.

116. Clearly, police services across Ontario spend a great deal of time and effort dealing with both domestic disputes and their aftermath. As a police officer of some 27 years experience this would have been know to Constable Courage. If a police officer is prepared to be arrested, ignore the advice of superior officers to stay away from a woman who has expressed her desire for no further attention and continues to pursue a relationship while in uniform and on duty then the respect that a community might have in either the capacity or commitment of a police service to deal effectively with domestic disputes can only be diminished.

117. Accordingly, we revoke the finding of "not guilty" and substitute a conviction for one count of discreditable conduct.

118. We already have received written submissions from the Appellant on the question of penalty. Specifically, that Constable Courage be suspended 60 hours without pay. We direct that we be provided with the Respondent's written submissions on penalty within 30 days of this decision.

DATED AT TORONTO THIS 12TH DAY OF AUGUST 2004.

Murray W. Chitra Chair

Brenda Weese Member, OCCPS Member

Footnotes

1. 1Transcript of Disciplinary Hearing, February 4, 2003, page 33.
2. 2Transcript of Disciplinary Hearing, February 3, 2003, pages 52-53.
3. 3Ibid., page 57.
4. 4Ibid., page 16.
5. 5Transcript of Disciplinary Hearing, February 4, 2003, page 74.
6. 6Ibid., page 74.
7. 7Transcript of Disciplinary Hearing, February 3, 2003, pages 75 and 76
8. 8Transcript of Disciplinary Hearing, April 30, 2003, page 43.
9. 9Transcript of Disciplinary Hearing, February 3, 2003, pages 17-18.
10. 10Transcript of Disciplinary Hearing, April 30, 2003, pages 16-17.
11. 11Ibid., page 26.
12. 12Transcript of Disciplinary Hearing, February 3, 3003, at page 24.
13. 13Ibid., page 91.
14. 14Transcript of Disciplinary Hearing, April 30, 2003, page 32.
15. 15Decision of Hearing Officer, June 27, 2003, page 3.
16. 16Ibid. page 9.
17. 17Ibid.
18. 18Ibid.
19. 19Ibid. pages 9 to 10.
20. 20Ibid., page 10.
21. 21Ibid.
22. 22Ibid., page 7.
23. 23Burdett and Guelph Police Service, page 3.
24. 24Ibid., pages 9 to 10.