ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Constable Antonio Pacitto
APPELLANT
-and-
Toronto Police Service
RESPONDENT
DECISION
Panel: Michele J. Shephard, Member Orlando Zamprogna, Member
Hearing Date: Monday March 22, 2004
Hearing Location:
Appearances:
Leo A. Kinahan, Counsel for the Appellant
Michael Martosh, Counsel for the Respondent
Kerri Kitchura, Assistant Counsel for the Respondent
I. Introduction
This is an appeal from a conviction for one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct (the “Code”) found at O.Reg. 123/98 by Superintendent Alan Griffiths (the “Hearing Officer”) on March 12, 2003.
Constable Pacitto also appeals the penalty of a forfeiture of five (5) days or 40 hours off.
II. Background
- Constable Pacitto has been a member of the Toronto Police Service since 1972. On June 6, 2002 he was served with a Notice of Hearing. The Statement of Particulars read as follows:
Being a member of the Toronto Police Service, attached to Number 31 Division, you, while off duty, on Sunday, December 23, 2001, at approximately 2:20 p.m., attended the Hallmark Store located at 6362 Yonge Street, Toronto. While at the cash register, you tendered a 100-dollar bill for purchases you made. You were advised by a store employee that the store policy was not to accept 100-dollar bills. You became verbally abusive to her and other employees by using profanity and yelling prior to leaving the store.
You returned to the store where you were confronted by a mall security officer who asked you to leave the premises, to which you refused. The security officer asked you on more than one occasion to leave the store, to which you refused. When the security officer placed his hand on your arm to remove you from the store, you swung your arm around striking a female customer in the head. You then pushed the security officer back into a card stand, damaging the stand.
In so doing, your actions were such that they were likely to bring discredit upon the reputation of the Toronto Police Service.
- The hearing into these allegations took place on January 23, 2003. Testimony was provided by four employees of the Hallmark store (one full-time and three part-time), a part-time teacher who had been in the store at the time of the incident, a security guard, Sergeant Lino Murrato and Constable Pacitto.
Appellant’s Position
Mr. Kinahan, on behalf of Constable Pacitto, submitted that, given numerous inconsistencies in the evidence of the prosecution witnesses there was no possible way that the Hearing Officer should have concluded that there was clear and convincing evidence of discreditable conduct.
Mr. Kinahan submitted that it is simply not enough for a Hearing Officer to state that he has been satisfied on clear and convincing evidence that a charge has been made out. He must actually demonstrate that he has considered all of the evidence and reached a just conclusion. On this point he referred us to Stitt and York Regional Police Service (1997), 3 O.P.R. 1130 (O.C.C.P.S.).
He noted that while the Hearing Officer indirectly acknowledged contradictions in the testimony of witnesses by indicating that they gave evidence in the best manner they could, there is no mention made in his decision of the numerous contradictions on significant points contained in the evidence put before him.
Mr. Kinahan acknowledged that reference was made in the Hearing Officer’s decision to the concept of clear and convincing proof, insofar as one of the witnesses was concerned. However, he argued that no indication was offered as to what factors in her evidence were clear and convincing. As well, he pointed out that there was no indication of which witness evidence was accepted and why or whose evidence is being rejected. He argued that in the absence of an explanation the Hearing Officer cannot have it both ways.
On the question of sentence, Mr. Kinahan submitted that the penalty imposed of five days forfeiture was excessive and harsh under the circumstances of this case. He noted that Constable Pacitto had an unblemished service record, with the exception of an entry in 1976. He argued that Constable Pacitto’s performance reports demonstrated that he had been conscientious and hard working throughout his service with the Toronto Police Service and this should have been given serious consideration by the Hearing Officer.
Mr. Kinahan also argued that the incident in question was not premeditated or prolonged and involved no malice or intent of malice. He suggested that it could be considered as an isolated incident of a less serious nature. He concluded by stating that Constable Pacitto was deserving of a reduced punishment.
Respondent’s Position
Mr. Martosh submitted that, taking the proceedings as a whole, there was weighty, cogent, and reliable evidence before the Hearing Officer to permit him to reach the conclusion that the Appellant engaged in discreditable conduct.
In particular he noted that the Hearing Officer found, inter alia, and described in his Reasons for Judgment that the Appellant:
(a) Tried to pay for several purchases at the store on December 23, 2001 using a $100 bill:
(b) Was advised that store policy prohibited the clerk from accepting the $100 bill
(c) Became very vocal and was adamant that he be permitted to pay for his purchases with the impugned bill, as it was Canadian currency;
(d) Became upset, started swearing, yelling, using the “f” word and called the stores employees “bitches”
(e) Made the store employees nervous, flustered, panicky, scared, intimidated and frightened
(f) Refused to leave the store when repeatedly requested to do so by mall security
(g) Engaged in a physical confrontation with the mall security officer; and,
(h) Caused an unidentified customer to be assaulted
He argued that given the above, these findings were not void of evidentiary foundation and as a result the conviction should stand.
He also submitted that the Hearing Officer had, in the context of the record before him, provided adequate reasons. He argued that the Hearing Officer did not have to reiterate each and every contradiction in the witnesses’ testimony when rendering his decision. Further he stated that the Hearing Officer did direct his mind to the contradictions in various witnesses’ testimony and provided appropriate reasons for those contradictions.
Mr. Martosh commented that when there are eight people in different places (not all at the same time) it should not be surprising that there are eight different stories. He argued that the Hearing Officer is in the best position to both determine credibility and place events in context.
Mr. Martosh submitted that the Hearing Officer’s penalty of “forfeiture of five days off or forty hours off” was appropriate given the serious nature of the Appellant’s misconduct, the reaction of the people in the store, and the fact that the incident became public knowledge.
III. Decision
There is no question that Constable Pacitto was involved in a dispute with an employee of the Hallmark store at 6362 Yonge Street on December 23, 2001.
This dispute was started by Constable Pacitto. He was told by a Hallmark employee that they could not accept a one hundred-dollar bill. He took exception to this policy. He testified that “All I did was try to make a point. These cards cost me a lot of money. I took two hours off work. I have never had trouble cashing these one hundred-dollar bills and I saw no signs in the store. I felt I had to question their policy. That’s all I did.”1
During cross-examination, the officer indicated that, “I have rights as a human being, rights as a police officer and constitutional rights. I am allowed to speak for my rights.” When asked if the store had its rights not to take a hundred dollar bill, he responded, “Yes, they do,” and he continued further saying, “I was questioning their policy. They did not expect anybody to question their policy.”2
This may well, all be true. However, it would seem that events quickly got out of hand. There was evidence of verbal abuse and profanity on the part of Constable Pacitto. There was a subsequent confrontation with a security guard. This is well beyond making a point or questioning a store policy.
It is evident that the testimony of the four store employees as to the precise details of what occurred was not totally consistent. However, it is clear when reading the decision of the Hearing Officer that he did take this into account. He stated “This is to be expected when a number of witnesses relay to a Tribunal what they saw and heard from their different positions in the store and the degree of participation they had during this confrontation.”3
More to the point, the Hearing Officer also noted, “Throughout all of the evidence given by these witnesses a consistency was apparent that they supported each other’s evidence in the essential areas. Their evidence was further supported by a totally independent witness, a part time school teacher who was shopping with her young daughter. [She] witnessed the event told by the store employees and the accused officer in this matter. Her evidence indicated that she witnessed the confrontation almost from the start to the conclusion and told her story in an unbiased manner.”4
The Hearing Officer has every right to accept or reject parts of the evidence presented by any witness. It is not necessary for the Hearing Officer to believe each and every statement made by any witness.
Further as the Commission stated in Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) at page 1058:
“Our role or function in such matters is not to second guess the decision of the adjudicator. In certain limited cases, it would be open to us to reach a different conclusion from that of the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the adjudicator, as to [whether] the credibility of witnesses, cannot be reasonably accepted.”
Also as was noted in Geske and Hamilton Police Service (3 July, 2003, O.C.C.P.S) appeals to this Commission are on the record.
It is not the role of the Commission to make decisions of credibility solely on the basis of the record not having the opportunity to see or hear the witnesses. This clearly is the role of the trier of fact. If however, the trier of fact misapprehends the evidence, reaches a decision that is void of evidentiary fact or makes a clear error at law, then this Commission has the power to vary, confirm, revoke or substitute our own decision.
This certainly is not the case here. We conclude that the Hearing Officer made his decision based on evidentiary facts that were reasonably defined by the consistency of the evidence in the essential areas surrounding this event. The lack of accuracy of the statements in the non-essential areas was acknowledged and dismissed. This was within the Hearing Officer’s authority.
We find that there was clear and convincing evidence before the Hearing Officer justifying the finding of discreditable conduct against Constable Pacitto, and we would dismiss the appeal against conviction.
As to the penalty, we think that the public is entitled to expect a certain standard of behavior from police officers whether off duty or on duty. It well known that many stores do not accept large bills, especially during the very busy Christmas season. This may certainly be inconvenient but it is not cause for the creation of a public disturbance and the verbal abuse of store clerks.
In his Reasons for Sentencing, the Hearing Officer said, “I have directed my mind to the principles of sentencing and I cannot understate the seriousness of this offense and the damage to the reputation of the Police Service. I must comment that I have grave concerns in regards to the officer’s conduct on Dec. 23, 2001 at the Hallmark Card store, when four female employees, in their own words, described how they were nervous, flustered, panicky, scared, frightened, and one lady had to go to the rear of the store to calm down before she had a panic attack. They called for the assistance of a security guard regarding a customer who turned out to be a Toronto Police Service officer.”5
To Constable Pacitto’s credit, the Hearing Officer acknowledged that “It is my opinion that this is an isolated incident and we shall not see this officer here again under similar circumstances.”6 In his decision, the Hearing Officer made reference to Constable Pacitto’s service record and the need for deterrence and the need to send a clear message to all members of the Service. We accept that these are all relevant and appropriate factors.
As well, the penalty imposed in this case is well within the range of dispositions available to the Hearing Officer. On this point we note Duriancik and Metro Toronto Police Service (1982), 2 O.P.R. 582.19 (O.C.C.P.S.). In that case a Toronto police officer was penalized with the forfeiture of six days for using profane, abusive and insulting language towards a court clerk.
For these reasons we dismiss the appeal against penalty.
DATED AT TORONTO THIS 6TH DAY OF MAY, 2004
Michele J. Shephard Member, OCCPS
Orlando Zamprogna Member, OCCPS