Elliott v. King and Durham Police Service, 2006 CanLII 84675

OCCPS #06-13

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Elliott v. King and Durham Police Service, 2006 CanLII 84675

REASONS FOR DECISION

ROBERT ELLIOTT Appellant

CONSTABLE WAYNE KING Respondent

DURHAM REGIONAL POLICE SERVICE Respondent

Presiding Member: David Edwards, Member

Appearances: Sunil S. Mathai for the Appellant William R. MacKenzie for the Respondent Police Officer Staff Inspector Brian Fazackerley for the Respondent Police Service

Hearing Date: September 26, 2006

This is an appeal from a decision of retired Inspector Gregory C. Connolley (“Hearing Officer”) dated September 28, 2005 wherein the Hearing Officer dismissed the charge against Constable Wayne King that he committed misconduct on September 21st, 2002 when without good and sufficient cause he made an unlawful or unnecessary arrest contrary to section 2(1)(g)(i) of the Code of Conduct (the “Code”) from O. Reg. 123/1998 as amended.

Background:

On September 21, 2002 members of the Durham Regional Police Service (the “Service”) responded to a call for service from a resident of the Oshawa community. Two young girls alleged that while they were delivering newspapers a truck or SUV with a trailer loaded with brush had stopped them on a residential street and the driver had asked the girls if they delivered newspapers to a specific address to which they replied in the negative.

There is some question as to whether the girls were asked if they wanted to get into the vehicle so that the driver could show them the house in question to determine whether in fact they did deliver newspapers to that location. The girls alleged that they were asked to get into the vehicle and were upset as a result of this interaction. The girls ultimately went home and reported what happened to their parents who called the police.

Constable Wayne King was in the area as an assigned assisting officer. He was advised by the investigating officer that the vehicle in question had been located in Oshawa. Constable King attended at that address and went to the front door of the residence. Constable King and Mr. Elliott, the owner of the house, spoke at the front door of the residence and very quickly became involved in a physical confrontation. This interaction resulted in the arrest of Mr. Elliott by Constable King for assaulting a police officer and assault with intent to resist arrest. Mr. Elliott was charged and subsequently acquitted of the criminal charges after trial.

Mr. Elliott filed a complaint with the Service about the actions of Constable King, alleging that Constable King used excessive force, instituted false charges and conducted an unwarranted strip search on the complainant. The Service investigated these complaints and by letter dated January 5th, 2004 responded that the complaint was unsubstantiated and pursuant to section 64(6) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) no further action should be taken.

By letter dated March 5th, 2004 Counsel for Mr. Elliott requested this Commission to review the decision of the Service. By letter dated June 8th, 2004 this Commission determined “there is sufficient evidence to warrant a hearing into the allegation that Constable Wayne King #3075 may have committed misconduct of a serious nature under section 54(7) of the Act on September 21, 2002 in that he, without good and sufficient cause made an unlawful or unnecessary arrest.” As a result of that decision, a hearing was held.

The Hearing:

The hearing was held over a 3-day period, which began on the 24th day of May, 2005 and ended on July 14th, 2005. Following the reading of the charges, Constable King entered a plea of not guilty.

Testimony was heard from 7 witnesses and 14 exhibits were tendered during the trial.

Mr. Robert Elliott was the first witness to testify. At the time of the incident he was the owner of 87 Jones Avenue in Oshawa and had resided there for approximately 3 weeks. Mr. Elliott advised that on that date he was utilizing a truck and trailer to remove brush from his residence to the municipal transfer station. He testified on the second trip that he encountered 2 young girls who were delivering newspapers to homes nearby. He stopped his vehicle and asked if they delivered to 87 Jones. They advised that they did not, at which point Mr. Elliott drove away.

Mr. Elliott described his interaction with Constable King at his front door. In particular he noted that Constable King asked him whether he had asked the girls to get into his truck. Mr. Elliott denied that and advised Constable King that the conversation was over. Mr. Elliott then described trying to shut the door but being unable to do so because the door was blocked by Constable King. Constable King then entered the house, put a choke hold on Mr. Elliott and subsequently arrested him.

Ms. Mary Durnin was the next witness to testify. She was present at 87 Jones Avenue and could hear what was transpiring but could not see Mr. Elliott and Constable King while she was in the adjoining room.

The next witness was Constable Michael McCormick of the Durham Regional Police Service who was the investigating officer for the incident. He described the events leading up to the “door knock” by Constable King and also stated that he was the second police officer to arrive on the scene. At that time he observed Mr. Elliott and Constable King lying on the porch struggling, with Constable King on his back and Mr. Elliott on top of him.

Sergeant Jeffrey Hewett also testified. He was the supervising member of the Service for the incident and made comments with respect to his role.

Constable Wayne King next took the stand. He testified that he had been a police officer for one year at the time of the occurrence. He described how he came into contact with Mr. Elliott on September 21, 2002.

Constable King testified that he went to the residence to conduct a “door knock” to obtain further information about the incident. He testified that at one point in the conversation Mr. Elliott advised him that the conversation was over and at the same time pushed him, resulting in Constable King advising Mr. Elliott that he was under arrest for assaulting a peace officer. A struggle then ensued.

The last 2 witnesses were the young girls who were involved in the initial interaction with Mr. Elliott. They both testified that Mr. Elliott asked them if they wished to get into the car to be shown his house.

Following the trial, the Hearing Officer rendered written reasons dated September 28, 2005 wherein he dismissed the charge of unlawful or unnecessary exercise of authority against Constable Wayne King. It is that decision which is being appealed by the complainant, Mr. Robert Elliott.

Appellant’s Position:

Mr. Sunil S. Mathai, Counsel for the Appellant, challenged the Hearing Officer’s decision. He argued that:

1. the Hearing Officer made an error in law and in fact in finding that Constable King was in the lawful execution of his duty when he entered onto the complainant’s property;
2. if Constable King was on the complainant’s property in the lawful execution of his duty, then the Hearing Officer made a finding of fact void of evidential basis in holding that the complainant did not explicitly tell Constable King to leave his property prior to stating, “this conversation is over”;
3. in the further alternative, the Hearing Officer made an error in law requiring the complainant to explicitly withdraw the implied license to knock;
4. the Hearing Officer made an error of law when he failed to consider the inconsistencies of Constable King’s evidence; and
5. the Hearing Officer erred in law in failing to accord the complainant the full right of procedural fairness that he was entitled as a full party to the discipline proceedings by not being permitted an adjournment to prepare to cross-examine the young girls.

Mr. Mathai spent considerable time describing the license granted by the “invitation to knock”; highlighting that if one went outside the specific bounds of the licence, then it was revoked.

Mr. Mathai argued that Constable King’s intention was to gather evidence; to ask questions “to advance the investigation”; to confirm the identity of the “suspect” and that this purpose strayed outside the limits of the licence to knock.

He argued that the Hearing Officer failed to address the testimony of Sergeant Hewett who made reference to “potential suspect” and that the failure of the Hearing Officer to consider this testimony meant that his finding was void of evidentiary support or was a misapprehension of the evidence and therefore a reviewable decision.

Mr. Mathai argued that the license ends at the doorway. It does not include the right to open the door or to block the closing of the door. He highlighted Constable King’s contradiction where he indicated that the inside door was open and the screen door was not, whereas in a statement given June 3rd, 2003 Constable King had said that he opened the screen door. This contradiction was not dealt with by the Hearing Officer and therefore was a reviewable decision.

With respect to his second argument, Mr. Mathai suggested that the Hearing Officer failed to consider the testimony at the criminal trial where Constable King testified that his report of the incident indicated that Mr. Elliott stated “get out of my house” continually. He argued that the Hearing Officer was obligated to consider the evidence and the inconsistencies shown by the exhibits in order to assist him in determining credibility. The failure of the Hearing Officer to give any consideration to the criminal trial record was a reviewable error with respect to the credibility finding. He asserted that the Hearing Officer ignored all of Constable King’s inconsistencies and considered all of Mr. Elliott’s inconsistencies.

He discussed the methods by which the implied license may be withdrawn. He suggested that the Hearing Officer failed to comprehend the issue appropriately by deciding that demeanour alone could not withdraw the license. The subjective conclusion of Constable King should be the determining factor.

Mr. Mathai suggested that there is a difference in the standard required to terminate the license between pre-contact and post-contact; suggesting that the authorities are quite clear that pre-contact very explicit withdrawal of the license is required.

After contact has been made, he asserted that the right to privacy in a dwelling increases and the standard for terminating the license is reduced accordingly. There are no magic words required to terminate the licence. The critical matter is that the police officer subjectively understands that he is no longer welcome and should leave. He pointed out numerous places in the evidence where Constable King acknowledged that he was aware that Mr. Elliott was unhappy to see him and he did not want him there.

He suggested that Mr. Elliott was really not an active participant in the conversation as the Hearing Officer determined. The testimony revealed that Constable King kept the door open with either his shoulder or arm, and in Mr. Mathai’s view, this should negate any conclusion that Mr. Elliott was an active participant of his own free will.

Mr. Mathai focused upon the point in time when Mr. Elliott said “this conversation is over”. He suggested that testimony between Mr. Elliott and Constable King differed at this point. He also argued that Constable King’s testimony at the hearing varied from his statement to the Professional Standards’ investigators and from the criminal trial. He suggested that each change was a self-serving one to ensure that Constable King’s actions stayed within the bounds of the invitation to knock.

He asserted that the Hearing Officer is silent on these inconsistencies. He further argued that the Hearing Officer is obligated to consider the inconsistencies and assign the level of weight which he will attach to these inconsistencies, but the Hearing Officer may not simply ignore or fail to consider these comments; such an action being a reviewable one.

For illustration purposes, Mr. Mathai followed the use of the words “choke hold” which appear in the Professional Standards investigation report, but at the hearing takes on a different characterization since Constable King does not acknowledge that it was a choke hold.

Finally, Mr. Mathai asserted that the young girls’ testimony was produced by the defence to challenge Mr. Elliott’s credibility, and since credibility was so critical to this entire matter, their testimony took on added importance. He asserted that both the police service and the police officer, and presumably the complainant, have an obligation to disclose all witnesses and all materials prior to the hearing. He asserted that although there was no case directly on point, that sections 69 (5) and (6) of the Act should be used by way of analogy to show the entitlement that the complainant has to all of the evidence. He suggested that natural justice and procedural fairness required that all parties disclose to each other their cases.

Finally, Mr. Mathai argued that each of the errors is reviewable and sufficient to require that the decision be revoked. He asked that the decision be revoked and that the decision of this Commission replace the Hearing Officer’s decision, or alternatively a new hearing be ordered.

Respondent’s Position (Durham Regional Police Service):

Staff Inspector Brian Fazackerley pointed out that the Commission did not have the authority to send the matter back for a re-hearing and in the event that the Commission decided to revoke the original decision and replace it with a finding of guilt, it would be necessary for it to also deal with the issue of sentencing.

He pointed out that the charge was one of unlawful or unnecessary use of authority. He noted that the Hearing Officer dealt with the aspect of unlawfulness in great detail, but in only one paragraph on page 22 of the decision dealt with the question of whether it was an unnecessary use of authority.

To assist the panel, Staff Inspector Fazackerley provided the following examples from the transcript of the trial indicating that under examination and cross-examination Constable King’s inconsistencies relative to his Professional Standards investigation transcript and the criminal trial were put to him. Those examples are found as follows: page 553, paragraph 21, page 565, paragraph 28, page 568, paragraph 22, page 571, paragraphs 13 and 14, and page 578.

Respondent’s Position (Constable King):

Mr. William R. MacKenzie asserted that the hearing was the proper forum to deal with any inconsistency in evidence given at the criminal trial or the Professional Standards investigation. At the hearing lawyers for all other parties had the opportunity to examine and cross-examine all of the witnesses and that was the time when inconsistencies should be put to the witnesses to challenge their testimony or their credibility.

He suggested that the decision of the judge in the criminal trial did not offer much assistance to the critical elements of this hearing inasmuch as the judge failed to rule on the issues in question at this hearing. He referred to page 3 of the decision. He noted that the decision in the criminal case turned on the issue of reasonable doubt rather than upon findings of fact or findings of law.

Mr. MacKenzie noted that the Hearing Officer had the benefit of Mr. Elliott’s testimony and that Mr. Elliott never verbally communicated his desire that he required Constable King to leave the property.

He pointed out that on page 13 in paragraph 5 of the decision it was clear that the Hearing Officer determined that the withdrawal of consent occurred simultaneously with the push. He noted that the Supreme Court of Canada and the Court of Appeal provide no clear assistance with respect to the issue of implied withdrawal of consent, which in his opinion formed the crux of this hearing.

Mr. MacKenzie argued that the Supreme Court in Evans and Evans v. The Queen (1996), 1996 CanLII 248 (SCC), 104 C.C.C. (3d) 23 (S.C.C.) provided no assistance to the issue of whether the subjective perception of the police officer was the determining factor in determining whether consent had been impliedly withdrawn. He further suggested that if an unwelcoming demeanour resulted in a withdrawal of the license, it would make police work very difficult.

He suggested that Constable King was in the course of investigating an incident. Constable King did not know whether in fact a criminal act had occurred or whether an innocent incident had occurred. Mr. MacKenzie asserted that the action complained of by the girls may or may not have constituted a criminal offence. The police were undertaking a fact-finding mission in order to clarify the situation. Accordingly, the factors surrounding the matter had not yet revealed whether a criminal offence had occurred and therefore Constable King was not in the process of collecting evidence.

He further argued that the Supreme Court of Canada in Evans found fault with the officers going to the residence to attempt to smell marijuana as this was the act of collecting evidence. However, it was his contention that Evans also stood for the proposition that the police were not precluded from attending at the residence to follow up on a tip about the presence of marijuana in a residence. Such action, he argued, fell within the legitimate bounds of the invitation to knock.

Mr. MacKenzie asserted that Mr. Elliott’s knowledge or lack thereof that he had the right to terminate the license to knock and require the police to leave is irrelevant. He suggested that Mr. Elliott’s continued conversation overruled any conclusion that one could make from Mr. Elliott’s demeanour. Mr. Elliott testified on two occasions at the trial that he had never requested the police officer to leave.

He further asserted that the Hearing Officer must use the testimony of the hearing under examination and cross-examination as the primary source of evidence. Constable King never admitted that Mr. Elliott asked him to leave. Mr. MacKenzie suggested that there is no evidence either from Constable King or from Mr. Elliott at the trial showing that Mr. Elliott requested Constable King to leave prior to his statement that the conversation was over.

With respect to the issue of the withdrawal of the license, he argued that Mr. Elliott testified at the trial he never requested the police to leave. In his opinion the license was revoked when Mr. Elliott said: “this conversation is over”. The Hearing Officer found that the contact by Mr. Elliott with the police officer occurred simultaneously with these words. The push or contact with Constable King constituted an assault, which allowed Constable King to enter the premises to affect the arrest.

Mr. King suggested that the Hearing Officer carefully reviewed the credibility of all other witnesses and found that Constable King was a credible witness and that, where his testimony conflicted with Mr. Elliott, the Hearing Officer preferred the testimony of Constable King.

He further asserted that the defence has no obligation to disclose its case in this adversarial process. He pointed out that Mr. Elliott was asked what he said to the girls. The defence called the young girls in order to contradict the testimony previously given by Mr. Elliott. This was not unfair as Mr. Elliott had been asked the question. The contradiction shown in the testimony allowed the Hearing Officer to weigh the matter and make a finding of credibility.

In summary, Mr. MacKenzie asserted that Mr. Elliott’s attitude was the cause of the incident. Mr. Elliott made contact with Constable King either prior to or simultaneously with terminating the conversation. Until that point the Hearing Officer concluded that Mr. Elliott was an active participant. He pointed out that Constable King was consistent in maintaining that Mr. Elliott never requested him to leave the premises.

Decision:

The discipline process, the role of the hearing officer and of this Commission is clear. As was stated in Whitney, Gonzalez and Ontario Provincial Police (1 June, 2006, O.C.C.P.S.) at pages 8 to 9:

A police officer may be found guilty of misconduct under section 74 of the Act if he or she contravenes the Code. This can only occur following a hearing.

Disciplinary hearings for police officers are administrative law proceedings of a labour relations nature. They are governed by the provisions of the Act, subject to principles of natural justice and must be conducted in accordance with the Statutory Powers Procedure Act R.S.O. 1990, c. S. 22 as amended.

Disciplinary hearings are presided over by designated hearing officers. Their roles include receiving evidence, assessing the credibility of witnesses, determining relevancy, making findings of fact and applying the pertinent law.

Section 64(10) of the Act states that a hearing officer can only impose a penalty at the conclusion of a hearing if he or she is satisfied that the allegations against the officer are “proved on clear and convincing evidence”.

The Act does not define “clear and convincing evidence”. However, over the years a number of Commission decisions have attempted to articulate this burden of proof. It was perhaps best described in Carmichael and Ontario Provincial Police, supra at page 1238 as “weighty, cogent and reliable evidence upon which a trier of fact, acting with care and caution, can come to a reasonable conclusion that the officer is guilty of misconduct.”

Our responsibility on appeal is quite different. As expressed in the often cited 1995 Williams and Ontario Provincial Police, supra 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 same would apply in cases where a hearing officer either misapprehended essential evidence or demonstrated a clear error of law. This standard of review has been more recently described as reasonableness simpliciter. Toronto (City) Police Service v. Blowes-Aybar, supra

The case before the Hearing Officer concerned a junior police officer charged with committing misconduct for allegedly without good and sufficient cause, making an unlawful or unnecessary arrest.

There are 5 questions before me. They are as follows:

1. did the Hearing Officer err by finding that Constable King was in the lawful execution of his duty when he entered onto the complainant’s property;
2. if Constable King was on the complainant’s property in the lawful execution of his duty, then did the Hearing Officer make a finding of fact void of evidential basis in holding that the complainant did not explicitly tell Constable King to leave his property prior to stating, “this conversation is over”;
3. did the Hearing Officer err by requiring the complainant to explicitly withdraw the implied license to knock;
4. did the Hearing Officer fail to consider the inconsistencies of Constable King’s evidence, and if so, was that an error at law; and
5. did the Hearing Officer err in law by failing to grant the complainant an adjournment to prepare to cross-examine the young girls.

Three of the five questions involve the principle of “invitation to knock”. The Hearing Officer commented upon the right and the limitations thereof at pages 8 and 9 of his decision as follows:

The issue of “implied invitation” by a property owner to another person to enter upon the property for lawful purpose has enjoyed a prominent place in this hearing. The law surrounding this issue was central to the criminal trial faced by Mr. Elliott for Assault Police and Resisting Arrest, in which he was acquitted. In R. v. Tricker, (1995) Ont. C.A. the Court stated:

“At common law, the occupier of a dwelling gives an implied licence to any member of the public, including a police officer, on legitimate business to come onto the property. That implied licence ends at the door of the dwelling.”

In Evans and Evans v. The Queen, (1996) S.C.C, the Court stated:

“As a result, the occupier of a residential dwelling is deemed to grant the public permission to approach the door and knock. Where the police act in accordance with this implied invitation, they cannot be said to intrude on the privacy of the occupant. The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling.”

Referring to R. v. Tricker again, the Court also spoke of: The property owner is, however, entitled to withdraw the licence. Once the licence is withdrawn the person who has entered under the licence must leave the property within a reasonable time or become a trespasser.”

The Hearing Officer noted the restrictions “facing police within the implied interpretation, when they enter upon a person’s property”. At page 10 he quoted the Supreme Court of Canada in Evans:

In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The “waiver” of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose …

Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them. Any “waiver” of the privacy rights that can be implied through the “invitation to knock” simply fails to extend that far. As a result, where the agents of the state approach the dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock.

The Hearing Officer concluded that Constable King’s “actions of entering on the Elliott property can be described as seeking information concerning the investigation that he was assisting with and not with the intent of gathering evidence against Mr. Elliott of an alleged criminal act” and it is that finding with which the Appellant takes issue.

Counsel have highlighted contradictory testimony at the hearing suggesting on the one hand that a criminal investigation was under way; that Mr. Elliott was a suspect; and on the other hand that Constable King was simply gathering information to determine whether a criminal act had occurred.

It is important to note that in Evans and in R. v. Campbell (1993), 36 B.C.A.C. 204, 1993 CanLII 2197 (BC CA), 58 W.A.C. 204, 22 W.C.B. (2nd) 142 (C.A.) which case is referred to in Evans, it is the search which the Court takes exception to, not the communication between the occupant and the police. In my view the Hearing Officer’s decision did not misapprehend the evidence, and his finding is supported on the evidence. Further, I am of the view that even if Constable King’s purpose was to question Mr. Elliott with respect to an alleged criminal act, that purpose would not be outside the bounds of the “invitation to knock”. Depending upon the course of the conversation other Charter rights would arise which the police officer would be obligated to honour.

The second question is whether the Hearing Officer’s finding that Mr. Elliott did not explicitly tell Constable King to leave his property prior to stating “this conversation is over” was in error.

At the criminal trial Constable King testified that “The entire time the suspect was yelling get out of my house, I’ve done nothing wrong”. At the hearing neither Constable King nor Mr. Elliott testified that prior to the assault those words were spoken.

In dismissing the criminal charges Justice Stone stated “The sequence of events may well have unfolded just as P.C. King described. But on this evidentiary record with his troubling inconsistencies and with a lingering possibility on the record that before the push Mr. Elliott could have clearly verbally told P.C. King to get out of the house, there must be a substantial reasonable doubt that P.C. King maintained his status of lawful execution of his duty”. Accordingly, Justice Stone dismissed the charges due to a reasonable doubt, rather than pursuant to a finding of fact. R. v. Elliott (9 September 2003, Stone, J.) at page 4.

The Hearing Officer stated: “At the hearing the statement ‘get out of my house, I’ve done nothing wrong’ was not brought forth as having been uttered by Mr. Elliott, either in his testimony or that of Constable King and thus did not form any point of argument surrounding the issue of ‘implied invitation’”.

The Hearing Officer is entitled to rely upon the testimony at the hearing to make findings of fact. Accordingly, the Hearing Officer’s finding that “the closest words used to provide any closure to the conversation were ‘this conversation is over’” and “I find from the evidence received that the physical interaction between Constable King and Mr. Elliott commenced simultaneously or immediately after Mr. Elliott stated that the conversation was over” is a finding of fact which is not unreasonable and can be supported on the evidence.

The third question is whether the Hearing Officer erred at law by requiring Mr. Elliott to explicitly withdraw the “licence to knock”. At page 13 of his decision, the Hearing Officer stated:

Mr. Elliott did open the outer door of his residence, and engage in a conversation albeit it very short, with Constable King. No evidence was received that Mr. Elliott told Constable King to leave. The closest words used to provide any closure to the conversation were “this conversation is over”. Mr. MacKenzie spent sometime in asserting that Mr. Elliott’s demeanour alone is not sufficient to act as a notice of withdrawal of the implied invitation afforded to Constable King.

I agree. I take notice that police officers, as stated during the hearing, often deal with people who do not want to interact with the police and are not hesitant in making that clear by their attitude. I am afraid if a person’s negative demeanour signaled to a police officer the end of any interaction, then policing as we know it would cease.

In R. v. Tricker (1995), 1995 CanLII 1268 (ON CA), 96 C.C.C. (3d) 198 (Ont. C.A.) the Ontario Court of Appeal stated at page 204:

Such implied licence can be rebutted by express refusal of it, as in this case the Robsons could no doubt have rebutted the implied licence to the police officers by putting up a notice on their front gate ‘No admittance to police officers’ …

In Evans, the Supreme Court concluded at paragraph 13 that “the implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest” and at paragraph 54 that the occupant“ … may also choose to revoke this implied licence explicitly, for example, by installing a locked gate at the entrance to the property, or posting signs to that effect”.

Both cases address revocation of the licence prior to its exercise. In other words, they address the situation of putting the police upon notice by way of a gate or sign, before they enter upon the property, that the licence has been withdrawn. Neither case gives clear direction to the criteria for determining how the licence could be withdrawn once the police officer is actually upon the premises.

One must go back to the purpose of the licence. “In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling.” The ‘waiver’ of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose” (See Evans at paragraph 15). A fundamental aspect of this waiver must be the consensual aspect of the communication or interaction. If the interaction is not consensual, then the waiver has been revoked.

There is no dispute that Constable King knew that he was not welcome. Constable King so testified at the criminal trial:

In my opinion before I even spoke, he, he had an aggressive tone to him. During the conversation it become obviously clearly, clearly evident that he did not want me there (page 25, line 25) … I’m saying based on his demeanour and his aggressive tendencies towards me, that he did not want me there (line 1 page 83).

At the hearing Constable King’s counsel consented to the filing of the transcript of the criminal trial as an exhibit as evidence. Further, on behalf of Constable King, his counsel stated:

I’ll concede it. I’ll highlight every section of that transcript where Officer King said, ‘Yes, in my mind, I could tell by his demeanour, I wasn’t welcome’. I’ll concede that (transcript page 488 line 18).

By his own words, it is very clear that Constable King knew from virtually first contact with Mr. Elliott, that Mr. Elliott did not want him to be on his property. The essential question is whether at law, Constable King’s conclusion that he was not welcome, determined from Mr. Elliott’s demeanour and general response, but not from any specific words constituted a withdrawal of the licence.

The right to privacy in one’s dwelling is an important one. From Evans one can conclude that there are no magic words required to terminate the waiver of the right to privacy. What is required is that the occupant must communicate to the police officer that he or she is not welcome on the property. The example given of a posted sign is one such method of communication.

There are many ways that one can communicate. It is clear that specific words directing the officer to leave would withdraw the licence. Gesturing or waving the police officer to leave might also communicate that message. Shutting the door immediately after seeing who was at the door, might also communicate the message to leave. In each case the police officer is called upon to reach a conclusion as to the message. In my view, if a reasonable person, based upon his or her interaction with the occupant, would have reached the conclusion that the officer’s presence is not welcome, then the licence is terminated. The consensual aspect of the interaction has ended.

In each case where there is a question as to whether or not the licence has been revoked, the issue will arise as to whether the police officer objectively should have reached that conclusion. Each case will turn on its facts - would a reasonable person have reached such a conclusion based upon the occupant’s words, gestures, actions, and demeanour. That issue does not arise here, since as noted above, Constable King has consistently acknowledged that he was aware from virtually first contact that Mr. Elliott did not want him there.

Accordingly I find that the Hearing Officer erred at law by concluding that the licence cannot, in the appropriate circumstance, be withdrawn by clearly understood demeanour. As noted above, according to Constable King’s own testimony he knew clearly that his presence was not welcome virtually at first contact. At that point, Constable King should have known that any licence was withdrawn and left the premises. Provided he did so, he would not have been a trespasser (Tricker p.414).

It follows that Constable King, by not leaving the property, became a trespasser and the subsequent arrest of the complainant was unlawful.

The fourth question raised was whether the Hearing Officer erred at law by failing to consider the inconsistencies of Constable King’s evidence in determining credibility. As noted in Mullholland and Halton Regional Police Service (25 March, 2003, O.C.C.P.S.) at page 9:

Matters of credibility and findings of fact are clearly within the Hearing Officer’s domain. Only in exceptional cases where the reasoning is itself evidentiary wrong, contains clear error or cannot reasonably be accepted will the Commission interfere with the conclusions made by the Hearing Officer on such matters.

It is clear from the decision that the Hearing Officer considered all of the evidence and preferred Constable King’s testimony to Mr. Elliott’s testimony. It is the Hearing Officer’s job to hear and consider the testimony and make a finding of credibility. I find that based upon the evidence, it was open to him to reach that decision.

The last question is whether the Hearing Officer erred at law by failing to grant an adjournment to prepare a cross-examination and obtain “Will Say” statements from the two girls who originally made the complaint against Mr. Elliott.

Sections 69 (5) and (6) of the Act read as follows:

(5) Before the hearing, the police officer shall be given an opportunity to examine any physical or documentary evidence that will be produced or any report whose contents will be given in evidence.

(6) If the hearing is being conducted as a result of a public complaint, the complaint shall likewise be given an opportunity to examine evidence and reports before the hearing.

Clearly section 69(5) is a direction to the police service to disclose “physical or documentary evidence” to the police officer. Section 69(6) extends that right to the complainant. Neither subsection imposes an obligation upon the police officer to disclose his defence. I find that the Hearing Officer did not make an error at law by failing to grant the requested adjournment.

In summary, I hold that Mr. Elliott withdrew the licence to knock when Constable King concluded that he was not welcome on the property pursuant to Constable King’s testimony that occurred virtually from first contact. Constable King should have left the premises forthwith. His failure to do so resulted in his presence as a trespasser. The resulting arrest was both unlawful and unnecessary.

Accordingly, the decision of the Hearing Officer is revoked and a finding of guilt of misconduct is substituted in that on September 21st, 2002, without good and sufficient cause Constable King made an unlawful or unnecessary arrest.

I direct all parties to provide the Registrar of the Commission with written submissions within the next 45 days with respect to penalty, so that I may address this question.

DATED AT TORONTO THIS 8TH DAY OF DECEMBER, 2006.

David Edwards Member, OCCPS