ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Constable Terry Parker
APPELLLANT
-and-
Ontario Provincial Police
RESPONDENT
DECISION
Panel: Joe Mavrinac, Member Peter Doucet, Member
Hearing Date: Friday, January 16, 2004
Hearing Location:
Appearances:
Lorna E. Boyd, Counsel for the Appellant
Ted Carleton, Counsel for the Respondent
I. Background
Constable Terrence Parker was a member of the Ontario Provincial Police commencing in 1992. He transferred to the Malden Detachment in April of 1997 and then to the Windsor Casino Unit in the fall of 1998.
On June 18, 1999 he was charged with 1 count of discreditable conduct and one count of corrupt practice pursuant to the schedule Code of conduct under Ont. Reg. 123/98. He was also charged criminally with one count of theft, one count of breach of trust, and one count of assault. These matters all relate to the allegation that he took $650 from the OPP, which funds resulted from the Moldovan drug arrest at the Malden Detachment, and an allegation that he assaulted Ms. C.W. in an automobile by “banging” her back into the seat during the course of a heated discussion.
On June 7, 2001 Constable Parker was found not guilty of the criminal charges before a jury in the Superior Court of Justice.
He was also charged criminally with one court of breach of his release order and on August 9, 2001 pled guilty to that count and was given an absolute discharge.
This plea of guilty resulted in a charge of discreditable conduct under the Police Services Act as well to which Constable Parker pled guilty before the Hearing Officer.
After a Police Services Act hearing which extended over 10 days from October 28, 2002 until May 16, 2003 Superintendent M. Elbers found Constable Parker guilty of discreditable conduct and corrupt practice, and ordered that he resign his position with OPP within 7 days, failing which he would be dismissed.
At the hearing Constable Parker, through his counsel, made no submissions as to penalty, maintaining his innocence even in the face of his conviction.
The Appeal
- Constable Parker appeals to this tribunal from his convictions of discreditable conduct as it relates to the assault on Ms. C.W., as well as corrupt practice as it relates to taking the $650 from the OPP.
Appellant’s Position
It is the position of the Appellant that the Hearing Officer erred in his interpretation of the evidence, failed to consider the inconsistencies in areas of the evidence such as colour of the envelope in which the funds were contained, the denominations of the funds in the envelope, conversations which took place between Constable Parker and Ms. C.W., his analysis of the tone of the voices on the audiotape, the accuracy, quality, and consistency of the audiotape, and overall credibility of witnesses based on these inconsistencies. The Appellant argues that based on these inconsistencies the Hearing Officer erred in believing the evidence of Ms. C.W. over that of Constable Parker, maintains that he neither took the money nor struck Ms. C.W., and that the findings of guilt of the Hearing Officer should be set aside.
Constable Parker maintains his rather unusual instruction given to his counsel before the Hearing Officer not to make any submissions as to penalty, and in that regard Ms. Boyd is placed in a somewhat unusual and awkward position by her client.
Respondent’s Position
The Respondent argues that the Hearing Officer was required to make a determination as to credibility between Ms. C.W. and Constable Parker on the very crucial issue of the conversation which took place between them in the car in January of 1999 wherein it is alleged that Constable Parker admitted to taking the $650 from the OPP Malden Detachment to Ms. C.W. This conversation was taped by Ms. C.W who borrowed a small recorder from a friend to whom she disclosed her belief that Constable Parker had taken the money. The tape was an important and controversial piece of evidence, given that a substantial portion of the conversation which Ms. C.W. purported to record was inaudible. Those portions which are audible are most damning of Constable Parker. The Respondent argues that the Hearing Officer thoroughly analyzed all of the extensive evidence and testimony placed before him, was in the exclusive position to observe the demeanour of the witnesses, most particularly Ms. C.W. and Constable Parker, and properly assessed the credibility of those witnesses, choosing to believe Ms. C.W. and disbelieve Constable Parker.
Mr. Carlton reminds us of our duty sitting in appeal, not to interfere with the decision of the Hearing Officer on the evidence unless his conclusions are totally devoid of evidentiary foundation. He cites the test of our function in Williams and OPP (1995) 2 O.P.R. 1047 OCCPS, 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 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 the credibility of witnesses, cannot be reasonably accepted.”
- The Respondent argues that the conclusions of the Hearing Officer have a clear basis in fact, are based solidly on the evidence placed before him, and must be upheld. The Respondent argues that we have no jurisdiction to interfere absent a manifest error, which Mr. Carlton submits is not present here.
II. Decision
On April 22, 1998 Detective Nyhoff of the OPP turned over an envelope containing $650 to Constable Parker for evidentiary safekeeping. These funds came from the Moldovan drug raid and were to be required for evidence in the preliminary hearing and trial. Constable Parker states he placed these funds in his drug locker at the Malden OPP Detachment and that was the last time he saw the funds.
When the evidence was required for court, the money, and some other exhibits, were missing. Constable Parker was contacted by Bill Scott in November of 1998 and advised that the money was missing. Constable Parker advised him it was in drug locker #3. The money was never found.
There is no issue that the drug lockers were not secure, that other people other than Constable Parker had access to drug locker #3, and that the Malden facility was less than secure.
Had that been the extent of the evidence against Constable Parker, it would clearly not be clear or convincing; however, the matter did not end there.
Ms. C.W. testified to seeing an envelope containing $600 cash in Constable Parker’s closet. She later saw that same envelope, now without cash, in his golf bag, and twice in the trunk of his car. She confronted him about it. He first put her off stating it was none of her business and police business.
Ms. C.W. was concerned. She spoke to a friend about the matter and ultimately decided to tape a conversation with Constable Parker in which Constable Parker apparently admits to taking the money.
In his criminal trial and the discipline hearing Constable Parker admits to saying, in reference to the missing money:
“What I did was terribly, terribly wrong, but I did it for all of the right reasons” - p 360 and 361.
“I didn’t have money to get to Brighton. I didn’t have money to fucking get food for my kids” - p 360.
“I’ll get $50 and put it back. It didn’t turn out that way” - p 361, 362, 363.
He makes other admissions which are most damning and amount to a confession of taking the money.
Constable Parker attempted to explain away his taped conversation by stating that he knew he was being taped, that he was pulling Ms. C.W.’s leg, that he was joking with Ms. C.W., and finally that he was saying these things to be rid of Ms. C.W. so she would leave him. He is cross examined extensively on this point from page 313 to page 404 of his transcript. He gives many explanations for what he might have been talking about in the alternative, suggesting that his comments might have been about an investigation into the conduct of a fellow officer, SE, or about taking $20 from the kitchen table which belonged to Ms. C.W.
In his detailed and thorough analysis of the evidence, the Hearing Officer finds Constable Parker to be an evasive witness. He finds Ms. C.W. to be credible and truthful. He finds him deliberately evasive when being cross examined on portions of the tape which were entirely audible, stating he could not decipher words which all could understand.
In our view the Hearing Officer had a clear and convincing evidentiary foundation upon which to base his findings of credibility, and we further find that he was in the best position to make such findings. We sitting in appeal cannot see the witnesses, hear the tone of their voice, observe their demeanour, and absent a finding that the decision of the Hearing Officer is totally void of evidentiary foundation, we ought not to interfere.
We comment, however, that we too find Constable Parker’s various explanations of what he said in that fateful taped conversation and on the stand, to Ms. C.W to be totally incredible. His explanation that he “pulled her leg” or “joked” about taking the money because he knew he was being taped, after earlier trying to say he was speaking about SE or $20 on the kitchen table appear to be nothing more than desperate attempts at lying to cover the painful truth that he admitted the theft to Ms. C.W., and was told by the arresting officer that he was on tape, so he had to come up with a story.
We further find that the Hearing Officer chose to believe Ms. C.W. about the assault, that Ms. C.W. was not cross examined about the assault, and the Hearing Officer again had the necessary evidentiary foundation upon which to base the finding of guilt on clear and convincing evidence.
The appeals as to conviction are accordingly dismissed.
As Constable Parker did not appeal the penalty, we will not disturb the decision of the Hearing Officer in that regard either, as we find the penalty to be appropriate given the actions of constable Parker and his obvious fabrication of the truth at his disciplinary hearing.
DATED THIS 20^TH^ DAY OF JANUARY 2004.
Peter Doucet Joe Mavrinac
Member, OCCPS Member, OCCPS