Constable Kazimir Grainer v. Ontario Provincial Police, 2005 CanLII 81115

OCCPS #05-04

ONTARIO CIVILIAN POLICE COMMISSION

DATE: July 4, 2005

FILE: OCPC-05-004

CASE NAME: PROVINCIAL CONSTABLE KAZIMIR GRAINER AND THE ONTARIO PROVINCIAL POLICE

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

BETWEEN:

Constable Kazimir Grainer APPELLANT

-and-

Ontario Provincial Police RESPONDENT

DECISION

Panel: Murray W. Chitra, Chair Noëlle Caloren, Member

Hearing Date: March 29, 2005

Hearing location:

Appearances: Michael W. Miller, Counsel for the Appellant Marnie Bacher, Counsel for the Respondent

I. Introduction

1. This is an appeal from a conviction on one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct (the “Code”) contained in Ontario Regulation 123/98 by Superintendent M.P.B. Elbers (the “Hearing Officer”) on March 22, 2004.

2. Constable Grainer also appeals the penalty imposed by the Hearing Officer on June 28, 2004 that he be suspended without pay for a period of twenty days or one hundred and sixty hours.

II. Background

3. Constable Grainer is a first-class constable with the Ontario Provincial Police (the “OPP”). He began his employment with the OPP in May of 1990, working in Downsview for the first four years of his career. He was then transferred to the Wasaga Beach Detachment where he remains stationed. Constable Grainer is currently forty-two years of age.

4. The facts giving rise to this appeal are much in dispute. It is clear that on the evening of April 10, 2002, while on duty, Constable Grainer attended Twisters Roadhouse on Highway 93 in the community of Orr Lake, Ontario. Present at the time were the owner, Mr. Garry Wicks; the complainant, Y [1], a bartender at the Roadhouse; and a patron, David Gard.

5. Constable Grainer and Y knew each other, having met initially approximately six years before while working in the area. Since then, over the years, they would encounter each other occasionally and engage in friendly conversation.

6. Later that evening, or in the early morning of the following day, Constable Grainer met Y on a country road known as Flos Road 4 between Highway 27 and the Village of Phelpston. The uncontroverted evidence ends there.

7. Y claims that on the evening of April 10, at approximately 7:00-7:30 p.m., Constable Grainer called her at Twisters Roadhouse to find out when she finished work. Later, at approximately 9:00 p.m., he attended at the bar where he engaged in a conversation with the owner, Garry Wicks. Following Constable Grainer’s arrival, Y closed the bar, which she left shortly before 11:00 p.m. When she left in her vehicle to return home, Constable Grainer was still engaged in a conversation with Garry Wicks in the parking lot of the Roadhouse.

8. Y left the bar alone, although she had, earlier in the evening, agreed to drive David Gard home.

9. She took her usual route home, following Highway 92 through Hillsdale to Flos Road 4, then heading westbound to her residence which is situated west of Phelpston. The approximate distance between the Roadhouse and Y’s residence is eighteen to twenty kilometres. The trip takes approximately fifteen minutes.

10. Y testified that on her drive home she was stopped by Constable Grainer on Flos Road 4. He was in his police cruiser coming from the opposite direction. He activated the emergency lights in his vehicle to pull her over. She alleges that after a brief conversation during which Constable Grainer commented on her looks, he suggested that they move to a side road off of Flos Road 4 to continue the conversation. On the occasion of their second stop, Y contends that Constable Grainer made a number of discreditable statements to her, more specifically that “she had a nice ass”, that he “would like to kiss her all over” and inquired whether she was home alone frequently.

11. Y contends that she felt intimidated, uncomfortable and violated by Constable Grainer’s comments. Following the second conversation, Y drove home.

12. Constable Grainer presents a very different version of the events that transpired on the evening of April 10, 2002. Constable Grainer admits to having telephoned the bar before he attended the premises later that evening. However, his evidence was that he called to speak to the owner, Garry Wicks, regarding a personal matter.

13. Constable Grainer testified that upon his arrival at the Roadhouse, which he estimates to be approximately 12:00 a.m., Y met him as he entered the premises and asked to meet him on Flos Road 4 later that evening. Constable Grainer left the bar at approximately 12:15 a.m. after a conversation with the owner. Constable Grainer made no entries in his notebook with respect to his attendance at the Roadhouse or his contact with the owner.

14. He proceeded to drive to the Town of Elmvale to purchase two bottles of water in anticipation of his meeting with Y. He then drove to the intersection of County Road 27 and Flos Road 4 where he expected to meet with Y, although no specific location had been determined for the meeting. While he was stopped, he observed a vehicle driven by Glenn Currie, an area resident, which he followed and stopped briefly for a friendly conversation with Mr. Currie.

15. Once he completed the stop, he doubled back going eastbound on Flos Road 4 towards County Road 27. As he was doing so, he observed Y’s vehicle coming in the opposite direction and motioned for her to pull over.

16. Constable Grainer denies activating his emergency lights to stop Y’s vehicle. According to Constable Grainer, he and Y exited their vehicles and embraced. He offered her water and they had a brief conversation during which Y spoke of her marriage break-up, the mortgage on her house and a prior altercation with her ex-husband. Constable Grainer also testified that Y offered him a key to the new premises she expected to occupy soon. Constable Grainer offered assistance to Y should she wish to pursue matters regarding her ex-husband. This put an end to the conversation and Y was left to continue home. Constable Grainer went back to the Midhurst Office to attend to his administrative duties.

17. Constable Grainer denies that he made the comments that have been attributed to him by Y. He further denies that a second meeting occurred between them on a side road.

18. Neither the stop of the Currie vehicle nor Constable Grainer’s roadside contact with Y is recorded in Constable Grainer’s notes.

19. David Gard, the patron present at the Roadhouse on the evening of April 10, 2002, testified at the hearing that Y had arranged to drive him home that evening but told him prior to her departure from the bar that she needed to leave, suggesting that he get a ride home with the owner. According to David Gard, Y appeared nervous when Constable Grainer entered the Roadhouse.

20. Once Y and Constable Grainer had left the Roadhouse, David Gard and Garry Wicks decided to drive to Y’s residence to check in on her. In the first pass of her residence, they did not see her car in the driveway, although as they doubled back in an easterly direction a few minutes later, they passed Y’s vehicle west of Phelpston, travelling in a westerly direction.

21. On the following day, April 11, 2002, Y recounted the events of the preceding night to David Gard.

22. Approximately three months later, on the basis of information gathered from Y, an internal complaint against Constable Grainer was lodged by Rod Lake, Inspector and Detachment Commander of the Huronia West Detachment. Following an investigation, the OPP initiated disciplinary proceedings against Constable Grainer. On December 2, 2004, Constable Grainer was served with a Notice of Hearing alleging discreditable conduct contrary to the Code. The specific allegations made in the notice were that Constable Grainer:

While on duty… you spoke to [Y], who was then driving a motor vehicle, in a traffic stop situation. Your inappropriate actions and comments to [Y] during the traffic stop include, but are not limited to:

• You used the emergency lighting equipment to stop a motor vehicle operated by [Y] on Flos Road 4 for non-enforcement purposes.

• You failed to note the traffic stop of [Y] in your notebook.

• Your inappropriate comments to [Y] included, how nice she looked, that she “has a nice ass” and further that you “would like to kiss her all over”.

• You instructed [Y] to travel farther along the side road, followed her and made further inappropriate comments concerning her breasts and whether she was home alone frequently.

• You failed to explain the reason for the stop to [Y].

23. Constable Grainer pled not guilty to the charge.

Hearing

24. The disciplinary proceeding took place before the Hearing Officer on January 15, 19, 20, February 23, March 22, May 19, June 2 and 28, 2004.

25. Evidence was heard from various witnesses in addition to Constable Grainer and Y, namely, the Roadhouse patron, David Gard; another witness, Glenn Currie, who was stopped by Constable Grainer on Flos Road 4; and Constable Grainer’s Detachment Commander Inspector Rod Lake.

26. At the hearing the Hearing Officer noted the evidence was “questionable”, presumably with respect to both principal parties.

27. The Hearing Officer found Constable Grainer guilty on March 29, 2005 and received submissions with respect to penalty. It was noted that Constable Grainer was considered by his superiors to be an able officer although in late 2001 and the first part of 2002, his performance was assessed as being inconsistent due to a perceived unwillingness to work. Constable Grainer’s recent work record revealed difficulties in the areas of problem solving and leadership attributes, although in all other areas of assessment and in the community, his work was perceived positively.

28. The Prosecutor initially proposed a period of demotion. However, it could not be established that Constable Grainer had been served with a Notice under section 68(6) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”). Service of such a Notice is a precondition to the imposition of either demotion or termination.

29. As a result, the Hearing Officer was asked to consider a penalty of suspension of thirty days. The Hearing Officer ultimately directed that Constable Grainer be suspended without pay for a period of twenty days. Both decisions were appealed to this Commission on July 20, 2004.

Appellant’s Position

30. Mr. Miller, on behalf of Constable Grainer challenged the decision of the Hearing Officer.

31. Mr. Miller argued that the Hearing Officer made several errors in interpreting the evidence. These included failing to identify obvious inconsistencies or conflicts, making findings without factual foundation or without considering the totality of the evidence, not properly applying the burden of proof (‘clear and convincing evidence’) and failing to make specific findings of credibility.

32. He asserted that the conclusions that flowed from these factual errors are void of proper evidentiary foundation and cannot be accepted based on the reasons provided.

33. The alleged errors related to such matters as:

• When Constable Grainer arrived at the bar
• Why Constable Grainer went there
• What Constable Grainer and Y said to each other at the bar
• When Y left
• Where the two subsequently met
• Whether or not they moved their cars to a ‘secluded spot’
• What Constable Grainer and Y said to each other on Flos Road 4

34. In conclusion Mr. Miller asserted that the finding of guilt should be overturned.

35. In support of these arguments he drew our attention to Besco and Peel Regional Police Service (2001), 3 O.P.R. 1496 (O.C.C.P.S.), R v. Coldin [2004] O.J. No. 2107 (Ont. C.A.), R v. Dodd (May 26, 2004, Ont. C.A.), R v. Maharaj (2004), 2004 CanLII 39045 (ON CA), 186 C.C.C. (3d) 247 (Ont. C.A.), Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), Betts and Peel Regional Police Service (1997), 3 O.P.R. 1171 (O.C.C.P.S.) and Ciotka and Ontario Provincial Police (1994), 2 O.P.R. 984 (O.C.C.P.S.).

36. Mr. Miller also argued that the penalty imposed was harsh, excessive, disproportionate to the offence and not in keeping with similar cases.

37. In particular, he suggested that the Hearing Officer applied his own personal standards of ethical conduct, improperly took into account informal discipline applied after the events in question and misapplied the principal of specific deterrence. For these reasons, he argued that we should reduce the penalty to a forfeiture of forty hours.

38. In support of this position he cited Drennan and Hamilton-Wentworth Regional Police Service (1996), 3 O.P.R. 1103 (O.C.C.P.S), Quintieri and Toronto Police Service (2001), 3 O.P.R. 1509 (O.C.C.P.S.) and Carson and Pembroke Police Service (2001), 3 O.P.R. 1479 (O.C.C.P.S.).

Respondent’s Position

39. Ms. Bacher, on behalf of the OPP, argued that both the finding of guilt and penalty should stand.

40. She took the position that the case before the Hearing Officer was essentially one of credibility. She noted that the Hearing Officer had the benefit of seeing both the witnesses and assessing the evidence first hand. She asserted that the findings of the Hearing Officer were proper, reasonable and supported by that evidence. As a result, Ms. Bacher argued that there were no exceptional grounds that would warrant us interfering with the Hearing Officer’s conclusions.

41. Ms. Bacher drew our attention to portions of the testimony that she argued supported the Hearing Officer’s findings. She spoke to the alleged errors identified by the Appellant. She stated that the test for our review is more than a simple finding of error on the part of the Hearing Officer.

42. Ms. Bacher asserted that the conclusions of the Hearing Officer were supported by lengthy reasons that provided proper findings with respect to credibility and the necessary evidentiary foundation to establish that the alleged misconduct had occurred.

43. On these points she drew our attention to Williams and Ontario Provincial Police, Cate and Peel Regional Police Service (2002), 3 O.P.R. 1604 (O.C.C.P.S.), Pacitto and Toronto Police Service (May 6, 2004, O.C.C.P.S.), and McNabb and Ontario Provincial Police (1997), 3 O.P.R. 1193 (O.C.C.P.S.).

44. Ms. Bacher also argued that the penalty imposed by the Hearing Officer was reasonable, fair and proportionate given the nature of the misconduct in question. She asserted that the Hearing Officer took into account all of the relevant factors and that given the standard of review articulated in previous Commission decisions should not be interfered with.

45. In support of these arguments she noted Allen and Hamilton-Wentworth Regional Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.) and Carson and Pembroke Police Service.

III. Decision

46. Section 2(1)(xi) of the Code makes it a disciplinary offence for a police officer to act “in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation“ of a police service.

47. There is no doubt that a police officer on duty who directed unwelcome comments of a sexually suggestive nature to a member of the public would be engaging in conduct that was both prejudicial to discipline and likely to bring discredit to the reputation of a police service. See Cate and Peel Regional Police Service (1998), 3 O.P.R. 1257 (O.C.C.P.S.) at page 1271.

48. Cases involving such alleged conduct often turn on credibility. That is certainly the situation here. The assessment of credibility can be difficult. It is not simply a matter of attempting to gauge the appearance of sincerity of individual witnesses.

49. As this Commission has noted on many occasions, this task has perhaps been best described by Mr. Justice O’Halloran in Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354 (B.C.C.A.):

On reflection it becomes axiomatic that the appearance of telling the truth is but one of the elements that enters into the credibility of the evidence of a witness. Opportunity for knowledge, powers of observation, judgement and memory, ability to describe clearly what he has seen or heard, as well as other factors is combined to produce what is called credibility … in short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize in that place and in those conditions.

50. Making this determination is the role of the hearing officer.

51. Our function in an appeal on the record is quite different. As was noted in Cate and Peel Regional Police Service (2002), 3 O.P.R. 1604 at page 1608:

Matters relating to the credibility of witnesses are clearly within the Hearing Officer’s domain. In Carmichael and Ontario Provincial Police (1998), 3 O.P.R. 1232 (O.C.C.P.S.) at page 6 the Commission stated:

The applicable burden of proof in this case is that of “clear and convincing evidence”. There must be weighty, cogent and reliable evidence upon which a trier of fact acting with caution can come to a reasonable conclusion that the officer is guilty of misconduct. We agree with the Appellant that the Commission can review whether there has been clear and convincing evidence presented. We also agree with the Respondent that generally it is not our role to assess the credibility of witnesses. In the normal course of events, it is the Hearing Officer who has the benefit of seeing the witnesses, hearing their testimony and assessing its weight.

Only in exceptional cases where the reasoning is evidently wrong, contains error, or cannot be reasonably be accepted, will the Commission interfere with the conclusions made by the Hearing Officer.

52. Do such circumstances exist in this case?

53. From a review of the transcript it is clear that the Hearing Officer was confronted with a number of factual disputes. However, there are some matters at the core of this case that do not appear to have been in contention.

54. Constable Grainer and Y knew each other as the result of a number of passing contacts over the course of several years. These contacts appear to have been both friendly and professional. At the time of the events in question Y was in the midst of a difficult separation. This was known to Constable Grainer. As well, Constable Grainer knew both where Y was employed and lived.

55. On the evening of April 10, 2002 both Y and Constable Grainer were working. Y was serving drinks at Twisters Roadhouse. Constable Grainer was on uniform patrol working the 7:00 p.m. to 7:00 a.m. shift. The Roadhouse is located within Constable Grainer’s patrol zone.

56. Sometime during the early part of his shift Constable Grainer telephoned the bar.

57. Later that evening Constable Grainer drove to Twisters in his cruiser. He had a conversation with Mr. Wicks and also spoke to Y. Y closed the bar and left through the back door. She got in her car to drive in the direction of her home. Constable Grainer was still at the bar when she departed.

58. Constable Grainer left the bar and somewhere outside of the small community of Phelpston the two cars crossed paths. It is evident that this meeting on an isolated rural road in the middle of the night some distance from Twisters was no accident. A conversation took place. Constable Grainer and Y have two very different versions of what was said.

59. The task of the Hearing Officer was to assess which of these versions to believe. In performing this difficult task he had the benefit of observing Constable Grainer and Y who both underwent extensive cross-examination. He found that Y was the more credible witness.

60. The Hearing Officer noted that Y was unclear on some exact details. That being said, he found that she was calm and collected throughout her cross-examination and unwavering on the essential issues in dispute. In contrast he noted that Constable Grainer was both nervous and fidgety when explaining his actions.

61. The Hearing Officer however, did not limit his analysis to an assessment of the demeanour of the two key witnesses. He noted a number of aspects of the evidence that raised significant concerns in his mind about the overall truthfulness of Constable Grainer’s version of events.

62. In part, these included:

• Constable Grainer testified that he was at Twisters for only ten to fifteen minutes. The evidence of both Y and Mr. Gard was that he was present for at least an hour to an hour and a half;
• Constable Grainer made no entry in his notebook of stopping at Twisters. However, his notebook for that evening contained an entry for a ‘walk through’ of the Palace Bar in Elmvale at 11:15 p.m.;
• Constable Grainer testified that he drove to Elmvale to get bottled water for Y before their ‘prearranged’ meeting. The Hearing Officer expressed doubt that Constable Grainer could have driven from Twisters to Elmvale, purchased water and then intercepted Y on Flos in the fifteen minutes normally required by her to drive home;
• Constable Grainer testified that Y had asked him to meet “on the 4th”. The Hearing Officer expressed doubts about the likelihood of Y arranging a meeting in the middle of the night on a lengthy isolated concession road some distance from Twisters without identifying a particular meeting point;
• Constable Grainer’s notebook contained no mention of his meeting with Y even though it occurred while he was on duty;
• Y reported Constable Grainer’s comments and conduct the following day to Mr. Gard; and
• When Constable Grainer was initially confronted with the allegations by his superiors on July 12, 2002 Constable Grainer denied ever stopping Y and made other comments that the Hearing Officer found to be evasive and untruthful.

63. Given the above and the totality of the evidence, the Hearing Officer accepted the credibility of Y on the essential question in dispute.

64. To our mind, this was a conclusion that was available to him. While there are some aspects of the Hearing Officer’s decision that might have been better expressed, there is no doubt that he undertook a careful analysis of the conflicting evidence before him. His reasoning reflects that analysis and he properly identified those aspects of that evidence that lead him to conclude that the ‘preponderance of probabilities’ favoured the credibility of Y.

65. On the face of it, given the nature of disciplinary proceedings, there is nothing in the decision that rises to the level of error or is so evidently wrong that it warrants our intervention. The record discloses more than sufficient evidence to raise legitimate concerns in the Hearing Officer’s mind with respect to Constable Grainer’s credibility. On the basis of the reasons provided we see no reason why the Hearing Officer’s conclusions in this regard cannot be reasonably accepted.

66. This then brings us to the question of penalty.

67. In Williams and Ontario Provincial Police the Commission identified the three key elements to be taken into account when assessing penalty. These include the nature and 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.

68. There are other factors that can be relevant, either aggravating or mitigating the penalty depending on the misconduct in question. They include the officer’s:

• employment history and experience;
• recognition of the seriousness of the transgression; and
• handicap or other relevant personal or family circumstances.

69. Other considerations could include provocation, the need for general or specific deterrence, concerns arising from management approach to the conduct in question and consistency with penalties imposed for similar transgressions.

70. There is no doubt that the misconduct in question was serious. While in uniform and on duty Constable Grainer stopped a woman on an isolated rural road without proper reason and initiated an inappropriate and offensive conversation of a sexual nature. The woman was uncomfortable, intimidated and felt violated.

71. Constable Grainer’s actions were inappropriate, unwarranted and a violation of proper ethical behaviour. It was clearly discreditable, brought disrepute to the reputation of the Ontario Provincial Police and warranted discipline.

72. At this point, it is worth noting that the most severe penalty available to the Hearing Officer was a suspension for thirty days or two hundred and forty hours pursuant to section 68(1)(d) of the Act. This would represent a loss of approximately $10,000 salary. Such a penalty would be appropriate in the most egregious and unmitigated case.

73. In the case at hand the Hearing Officer imposed a penalty of suspension for twenty days or one hundred and sixty hours. This would represent a loss of approximately $6,000 salary, which is still a substantial penalty.

74. In his decision, the Hearing Officer correctly noted that the conduct in question was serious, contrary to the public interest, called for both specific and general deterrence and was damaging to the reputation of the OPP.

75. He identified a number of previous decisions involving more severe conduct and suggested that new standards of conduct may have rendered the penalties imposed in such cases less relevant. These cases dated from 1996 to 2002. Given that the conduct in question occurred in 2002 we think that this statement goes too far. Further, we note that in his discussion of this point, the Hearing Officer did not describe the penalty in the Drennan and Hamilton-Wentworth Police Service correctly.

76. However, of more concern was the weight that the Hearing Officer assigned to the pertinent mitigating factors. The conduct in question was certainly inappropriate. That being said, it was a single act. There was no physical contact. It was not repeated. It cannot be described as being in the range of the most serious case.

77. As well, with the exception of some unrelated performance issues around the time of the events in question or shortly thereafter, Constable Grainer was described as an able officer for well over a decade. Certainly, his employment record discloses no infractions of a similar nature that might suggest the need for progressive discipline.

78. Further, the Hearing Officer concluded “Constable Grainer understands and fully appreciates the nature and consequences of his actions …” He also stated that he felt that “Constable Grainer understands the gravity of the misconduct” and that he did not believe that “given the same situation, that Constable Grainer would conduct himself as he did in April of 2002”. These are significant factors going to recognition and the question of rehabilitation.

79. As well, The Hearing Officer suggested that if “counselling is required I am sure Constable Grainer will seek the necessary treatment.” With respect, if either counselling or training were of concern, then this was not a matter that should have been left to Constable Grainer’s discretion.

80. While not excusing Constable Grainer’s conduct, we are of the view that the above factors warrant a minor variation in the penalty imposed. Specifically, we would vary the penalty from a suspension without pay of twenty days or one hundred and sixty hours to a suspension of pay of fifteen days or one hundred and twenty hours.

81. Further, we direct pursuant to section 68(5)(c) of the Act that Constable Grainer successfully complete a suitable program on the subject of the prevention of sexual harassment to be selected by his employer.

DATED AT TORONTO THIS 4th DAY OF JULY, 2005

Murray Chitra Chair, OCCPS

Noëlle Caloren Member, OCCPS

1Name modified.