OCCPS #06-05
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
Citation: Whitney v. Gonzalez and Ontario Provincial Police, 2006 ONCPC 5
REASONS FOR DECISION
MILES WHITNEY
Appellant
CONSTABLE NEIL GONZALEZ AND ONTARIO PROVINCIAL POLICE
Respondents
Presiding Members:
Murray W. Chitra, Chair
Sylvia Hudson, Vice Chair
Appearances:
C. Justin Griffin, Counsel for the Appellant
Jinan Kubursi, Counsel for Ontario Provincial Police
Lorna E. Boyd, Counsel for Constable Neil Gonzalez
Hearing Date: March 2, 2006
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 Miles Whitney from a decision of
Superintendent M.P.B. Elbers (the “Hearing Officer”) dated June 16, 2005.
That decision was that Constable Neil Gonzalez was not guilty of the disciplinary offence of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct contained in O. Reg. 123/98, as amended (the “Code”).
Background:
At the time of the events in question, the Appellant was 18 years of age. He and four friends organized a five night camping trip starting May 23, 2002 at Canisbay Lake Campground at Algonquin Provincial Park. Two of the other campers were also minors.
In addition to the normal camping equipment, the young men acquired a quantity of alcohol and drugs. This included seven grams of marijuana, fourteen grams of magic mushrooms, at least three cases of beer, a bottle of Bailey’s Irish Cream and a bottle of vodka. They also had an assortment of pipes, bongs, papers and
a grinder. Some of the alcohol in question had been purchased for the young men by their parents.
The five young men drove to the campground from Brantford in two vehicles. The Appellant was one of the drivers. They arrived shortly after 3:00 p.m. and pitched their tents. They selected a secluded site.
It was not long before the young men came to the attention of Park Wardens. Around 9:30 p.m. on the evening of May 23rd, a patrolling Park Warden warned the campers about excessive noise. They were playing AC/DC. He observed beer and liquor bottles on a picnic table and determined that three of the campers were not of legal drinking age. The campers were warned with respect to both matters.
At some point later that evening, two of the Appellant’s adult relatives arrived and pitched their tent in a neighbouring campsite. They were described as being
‘chaperones’ or ‘guardians’ to the under-aged young men.
The following evening at approximately 4:50 p.m. two Park Wardens noticed the campers dragging brush from the forest floor to use in an undesignated fire pit, both of which are prohibited by Park Rules. They also observed one of the underage campers with beer in a mug. A Provincial Offences Notice was issued to him. The Wardens demanded that any remaining alcohol be surrendered. The campers denied that there was any alcohol left. The Appellant eventually produced the bottle of Baileys.
Discussions grew heated and matters quickly escalated. The ‘guardians’ or
‘chaperones’ left. Three other Wardens were called to the scene. A demand was made to search the two vehicles. One of the drivers consented. The Appellant however, refused to have his vehicle searched and was ‘ticketed’ by one of the Wardens for abusive language. The Appellant requested that police be called.
The campers were advised that they were being evicted and told to start packing their gear. They were told that they would not be permitted to drive from the campgrounds unless it could be determined that they were sober. The applicable Ministry of Natural Resources Policy states:
Intoxicated persons are not to be knowingly allowed behind the wheel of a vehicle. Person suspected of impaired driving are to be referred to the O.P.P. for appropriate processing.1
One of the drivers volunteered that he felt that he may have had too much to drink to safely operate his vehicle. The Appellant insisted that he did not drink.
The Ontario Provincial Police (“OPP”) were contacted. At approximately 5:40 p.m. Constable Gonzalez was dispatched by Perth Communications Centre to assist in an eviction and conduct breathalyzer tests. At the time of these events, Constable Neil Gonzalez had been an OPP officer for less than two years. His nearest ‘backup’ was at least a one-hour drive away.
Constable Gonzalez arrived at the campsite in just over half an hour. The campers had not yet finished packing their gear. He spoke to the Park Wardens for about ten minutes. He was provided with a brief history and advised that the Wardens were concerned about the sobriety of the two drivers - one being the Appellant.
Constable Gonzalez then spoke to the campers. He advised them that the Park Wardens had the authority to search any vehicle under the Liquor License Act R.S.O. 1990, C. L.19 as amended. He asked the two drivers to accompany him to his cruiser. He directed the Appellant and the other young man to the back of the vehicle and asked for their driver’s licenses. These were provided.
Constable Gonzalez asked about alcohol consumption. The other driver acknowledged drinking three beers. The Appellant stated he did not drink. At that point Constable Gonzalez then left the cruiser to get identification from the other three campers. The two young men remained in the cruiser. He returned with that information and using his radio initiated CPIC and vehicle license checks.
Following further discussion, Constable Gonzalez administered breathalyzer tests. At no point did Constable Gonzalez issue a formal demand or advise the two young men of any right to counsel. The Appellant’s breathalyzer reading was zero. The other driver’s reading was .038 percent blood alcohol.
About this time Constable Gonzalez was advised by the Communications Centre that two of the campers had prior records. One had a significant criminal history and was flagged as violent. Two of the Park Wardens approached the cruiser and advised Constable Gonzalez that their search of the Appellant’s vehicle had discovered thirty-three bottles of beer, a knife, a partial bottle of vodka, and various drug accessories.
Constable Gonzalez left the car and attempted to search the other three young men. One camper refused and was arrested. Another was searched and marijuana and magic mushrooms were discovered. He was arrested. The third camper was also searched but nothing was found.
Constable Gonzalez returned to the cruiser to complete his paper work and prepare appearance notices relating to the two arrests. He let the Appellant and the other driver out. By this time the Appellant and other driver had been in the back of the car for approximately thirty minutes. The Appellant and his fellow
campers left the Campsite at approximately 7:40 p.m. after receiving a refund for the unused camping days.
Following these events a public complaint was filed by the Appellant against Constable Gonzalez. As a result, Constable Gonzalez was charged with one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code. The specific allegation was that:
On or about the 24th day of May 2002, at Canisbay Campgrounds, Algonquin Park, you detained Miles Whitney and administered a Drager Alcotest. These actions breached Miles Whitney’s rights under the “Charter of Rights and Freedoms” with respect to arbitrary detention arrest, and right to counsel.
You knew, or reasonably ought to have known, that you[r] conduct was inappropriate.
Constable Gonzalez pled not guilty.
The Hearing:
The disciplinary hearing commenced on June 15, 2004. There were seven hearing days. A total of nine witnesses testified. These included the Appellant, three of his fellow campers, four Park Wardens and Constable Gonzalez. Twenty-eight exhibits were received along with detailed case submissions.
The Hearing Officer rendered a sixteen-page decision on June 16, 2005. He concluded that based on the evidence presented, he could not find Constable Gonzalez guilty of discreditable conduct. It is this conclusion that is the subject of this appeal.
In his decision, the Hearing Officer provided a detailed summary of the evidence. He found that, after the confrontation between the campers and the Wardens, they had been evicted and they were waiting for Constable Gonzalez to arrive to perform a breath test for the sole purpose of determining whether or not it was safe for them to drive from the campsite.
Further, he found that both drivers were aware the test was voluntary and had no criminal consequences. As such, there was no requirement on the part of the officer to make a formal demand or comply with the requirements of the Charter of Rights.
Position of the Appellant:
Mr. C. Justin Griffin, on behalf of the Appellant, disputes this finding. It is his position that the Hearing Officer erred in law. Mr. Griffin stated that the Hearing
Officer’s decision failed to accurately and fully summarize the evidence. He also asserted that the decision of the Hearing Officer appeared to be biased, being more in the nature of a trial of the campers than of Constable Gonzalez.
Mr. Griffin argued the evidence did not support any conclusion that the campers had been provided with a copy of the Campground Rules or were aware of any specific prohibitions with respect to noise, the gathering of firewood or the use of fire pits.
A number of Mr. Griffin’s concerns appeared to relate to the conduct of the Park Wardens. At different times he described this conduct as excessive, arbitrary, unnecessarily confrontational and unreasonable. He suggested that the evidence raised questions with respect to the Warden’s training and understanding of the nature and extent of their authority.
He argued that the campsite occupied by the Appellant and his four friends constituted their “residence” as defined by section 31(1) of the Liquor Licence Act. As such, the Appellant and his friends were entitled to privacy and the right to moderately consume alcohol with either the express permission of their parents or under the supervision of adult ‘guardians’ or ‘chaperones’. He asserted that the campers were in lawful possession of both the alcohol and marijuana.
Mr. Griffin stated that the Hearing Officer inappropriately speculated on the failure of the Appellant to mention the presence of his ‘guardians’ so as to quickly deal with any concerns with respect to underage drinking. He suggested that even if this had occurred, it would not have made any difference because the Wardens were not prepared to listen to the young men.
Mr. Griffin noted the Park Policy with respect to campers who showed signs of impairment. He argued that the Appellant showed no signs of impairment and as such the Policy would not have applied to him. Further, the Policy in question was a guideline and not lawful authority to either detain a camper or demand the production of a breath sample. Regina v. Dedman (1981), 1981 CanLII 1631 (ON CA), 59 C.C.C. (2d) 97 (Ont. C.A.)
Mr Griffin pointed out that the undisputed evidence was that the Appellant did not drink, apart from the use of Baileys as a sweetener in his coffee. He had not been observed consuming alcohol or exhibiting any signs of impairment. Further, the Appellant clearly stated to both the Wardens and Constable Gonzalez that he did not drink. As such, there was no evidence to warrant any suspicion that the Appellant was impaired, so as to call for the intrusive application of a breathalyser test.
Mr. Griffin argued that the evidence was clear that the Appellant was prevented from leaving the Campsite by the Wardens. He suggested that the real purpose
of this ‘detention’ was to search the Appellant’s vehicle. While this was taking place he was separated from the other campers, placed in the back of a locked cruiser and confronted with a demand for a breath sample. This took place without informed consent or proper waiver of constitutional right to counsel. Regina v. Mellenthin (1992), 1992 CanLII 50 (SCC), 76 C.C.C. (3d) 481 (S.C.C.) and Regina v. Willis (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (S.C.C.)
Mr. Griffin stated that the Appellant was “forced” to take the test. He would not have done so if he believed that he had a choice. He complied only because he thought he was going to jail and did not think he could refuse. As well, even when the Appellant completed the test and the results were clearly negative, he was left in the back of the locked cruiser. Regina v. Mann 2004 SCC 52, [2004] S.C.J. No. 49 (S.C.C.)
Mr. Griffin concluded by requesting that we reverse the decision of the Hearing Officer and register a conviction of discreditable conduct against Constable Gonzalez.
Position of the Respondent (OPP):
Ms. Kubursi responded on behalf of the OPP. It was her position that the Hearing Officer’s conclusion that the Appellant took the breath test voluntarily was reasonable, one based on the evidentiary foundation before him. As such, no Charter breaches with respect to arbitrary detention, arrest or right to counsel can be said to have occurred.
Ms. Kubursi noted that the standard of review that we are to apply to the decision of the Hearing Officer is that of reasonableness simpliciter. She suggested that this requires deference, particularly where findings of fact and credibility are concerned. Toronto (City) Police Service v. Blowes-Aybar 2004 CanLII 34451 (ON SCDC), [2004] O.J. No. 1655 (Ont. Div. Ct.), Cate and Peel Regional Police Service (2002), 3 O.P.R. 1604 (O.C.C.P.S.) and Carmichael and Ontario Provincial Police (1998), 3 O.P.R.
1232 (O.C.C.P.S.)
Ms. Kubursi argued that the question for us is whether or not the conclusions of the Hearing Officer are void of evidentiary foundation, demonstrate manifest error, ignore relevant evidence or draw erroneous conclusions. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) and Parlardg and Godfrey and Ontario Provincial Police (15 January, 2002, O.C.C.P.S.)
Ms. Kubursi submitted that we must focus on the reasonableness of the Hearing Officer’s decision and in particular, whether or not the written reasons support that decision. She drew our attention to the principles articulated in Girard v. Delaney (1995) 2 P.L.R. 337 (Ont. Bd. Inq.) for assessing whether or not police conduct is discreditable. She noted the similarity to section 24(2) of the Charter.
Ms. Kubursi argued that given that the Appellant was not the subject of a criminal investigation and did not face the potential of criminal consequences, the normal procedural requirements with respect to such matters did not apply. Ms. Kubursi suggested that even if this were not the case, the Hearing Officer’s findings indicate that he was satisfied that the test for voluntariness set out in R. v. Willis, supra had been met.
Ms. Kubursi noted that not every Charter breach amounts to misconduct and it was certainly open to the Hearing Officer to make such a finding. Rampersaud v. Ford (1994), 1 P.L.R. 453 (Ont. Bd. Inq.)
In conclusion, she requested that this appeal be dismissed and the conclusions of the Hearing Officer confirmed.
Position of the Respondent (Constable Neil Gonzalez):
Ms. Lorna E. Boyd, Counsel on behalf of the Ontario Provincial Police
Association, argued that the decision of the Hearing Officer should stand.
Ms. Boyd submitted that it is not the role of the Commission on appeal to second- guess or rehear a case if the decision of the Hearing Officer is reasonable and supported by evidence. She asserted that our function is to determine whether or not the conclusions of the Hearing Officer are void of evidentiary foundation, display manifest error, or ignore conclusive or relevant evidence or is self evidently wrong.
On these points she drew our attention to Favretto and Ontario Provincial Police
(2002), 3 O.P.R. 1540 (O.C.C.P.S.), Ontario Provincial Police v. Favretto (2004),
2004 CanLII 34173 (ON CA), 72 O.R. (3d) 681 (Ont. C.A.), Bender and LeClair and Windsor Police Service
(2000) 3 O.P.R. 1392 (O.C.C.P.S.), Ciotka and Ontario Provincial Police (1994),
2 O.P.R. 984 (O.C.C.P.S.) and Crozier and Waterloo Regional Police Service
(1993), 2 O.P.R. 948 (O.C.C.P.S.).
Ms. Boyd argued that the Hearing Officer made no manifest error in his assessment of the evidence. She pointed out that the Hearing Officer gave “equitable” consideration to the respective positions presented by the Appellant and Respondent. Nothing and Ontario Provincial Police (1996), 2 O.P.R. 1081 (O.C.C.P.S.)
Ms. Boyd submitted that Constable Gonzalez was called to assist with the eviction of campers who were young individuals drinking at a Provincial Park. She argued that a reasonably informed member of the community would expect the police to take some action, if these campers were intent on driving away.
Ms. Boyd submitted that the Hearing Officer reviewed the reasonableness of the officer’s conduct. She further submitted that the Hearing Officer was in the best
position to assess the evidence of the Appellant and the other campers. Mousseau and Toronto Police Service (1981), 2 O.P.R. 505 (O.P.C.) and Hewitt and Devine and Toronto Police Service (1999), 3.O.P.R. 1372 (O.C.C.P.S.)
She pointed out that the Hearing Officer assessed the evidence and was able to note the campers willingness to drive under the influence of alcohol/drugs, drink underage and “lie repeatedly” to the Park Wardens and Constable Gonzalez.
In terms of the alleged Charter breaches, Ms. Boyd argued at length that the Appellant went to Constable Gonzalez’s cruiser and took the breath test voluntarily. She asserted that this was a proper factual determination based on the Hearing Officers’ evidentiary findings.
Ms. Boyd stated that because the process was voluntary, the Hearing Officer could not find a breach of the Appellant’s Charter rights with either the detention, breath test and right to counsel. She submitted that although the Appellant was detained, the detention occurred in the course of the administration of the voluntary breath test and it was not arbitrary.
Further, Ms. Boyd argued that the facts of this case can be distinguished from those in R. v. Dedman, supra. That decision concerned random vehicle stops under the R.I.D.E. program.
Ms. Boyd argued that the test to be applied is whether or not the conduct of the officer can objectively be perceived to be discreditable. She took the position that even though the Hearing Officer’s findings “alluded to possible shortcomings” on the part of the officer, his conduct was not discreditable. In support of this position, Ms. Boyd cited: Police Constable P.G. and the Attorney General of Ontario and Police Complaints Commissioner (Ontario Divisional Court, File No.
568/93, 28 November, 1998) at pp .28-29.
Further, Ms. Boyd submitted that a reasonable person, independent of the circumstances, who has the opportunity to assess this case, would not view the actions of Constable Gonzalez as discreditable. She suggested that a reasonable person would view the officer’s actions as professional in that he focused on ensuring the safety and security of all users of the highway on the night of May 24, 2002. Girard v. Delaney supra and R. v. Orbanski; R. v. Elias 2005 SCC 37, [2005] S.C.J. No. 37 (S.C.C.)
In conclusion, Ms. Boyd requested that this appeal be dismissed and the decision of the Hearing Officer upheld.
Decision:
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 discreditable conduct. The charge was that he acted “in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force.” This specifically related to the placement of the Appellant in the back seat of a cruiser for approximately thirty minutes and application of a breathalyzer test.
The concept of discreditable conduct covers a wide range of potential behaviour. The test to be applied is primarily an objective one. The conduct in question must be measured against the reasonable expectation of the community. 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.
To our mind, if the Appellant was detained and compelled by Constable Gonzalez to undergo a breathalyzer with the threat of criminal sanctions and in the absence of Charter cautions then his behaviour would have been discreditable. If the Appellant faced no sanctions and agreed to participate voluntarily, then it would not. This was the essential question for the Hearing Officer.
The disciplinary hearing into this matter involved several hearing days over the course of a full year. All parties were represented. There was extensive and detailed cross-examination.
In his decision, the Hearing Officer stated that the only way to analyze the information before him was to “assess whether a) the campers and b) the Wardens knew what the purpose of the Breath Test was and whether they both knew what the consequences were”.
The evidence disclosed that in May of 2002, the Appellant and four friends went on a camping trip to Algonquin Park. Three were underage. They were well equipped with both camping gear and stimulants. It was not long before they got into difficulties with Park Wardens.
On the afternoon of May 24, 2002, the five young men were involved in a loud and at times aggressive confrontation with five Park Wardens. The Appellant asked that the police be called. The young men were evicted and told to pack their gear.
They were advised that it was Park Policy not to permit impaired individuals to drive from the Park and that the OPP would determine whether they were sober enough to drive. One of the drivers expressed concerns about the amount of alcohol he had consumed.
Constable Gonzalez was dispatched to the Park. He was told that he was to assist Park Wardens with an eviction and provide breathalyzer tests. It was his first call to the Park. He had not had any prior dealings with the Park Wardens.
Constable Gonzalez arrived and was briefed. He was told about the underage drinking and that it appeared all five campers at the campsite had been consuming alcohol and that the Wardens believed there was alcohol unaccounted for. Constable Gonzalez observed a large number of empty beer bottles on a picnic table.
In his decision, the Hearing Officer noted the fact that the Appellant denied that he drank. However, he observed that the Appellant had surrendered to the Wardens a bottle of Bailey’s that was one quarter empty and the Appellant acknowledged using it in his coffee that morning.
Constable Gonzalez directed the two drivers to his cruiser. The only place to accommodate the two was in the rear seat. They were not handcuffed or searched. They expressed no objection. As the Hearing Officer noted, according to the Appellant’s evidence, the officer was cordial, professional and cooperative. He is also described in evidence as being courteous.
While the Appellant was in the back of the cruiser he expressed concerns about the conduct of the Park Wardens and was advised by Constable Gonzalez about how to file a complaint. The officer and two young men discussed Brantford and the fact that the Appellant’s father was a police officer.
According to the evidence of Constable Gonzalez:
It was very relaxed, very casual. I told the two parties that there was a concern with regards to their sobriety and that I’d conduct a voluntary roadside screening device test. They agreed to take the test. I indicated to them that it’s a very simple procedure. And I prepared to warm up the device, which takes a few minutes.2
According to the two young men, they were not offered an explanation or clearly told what would happen if they did not comply. Further, they testified that the word “voluntary” did not come up.
Clearly, the Hearing Officer concluded that the evidence of Constable Gonzalez was more credible. Leaving aside the fact that he had the benefit of observing each of the witnesses, it would appear that there were a number of things that concerned him.
These included, as noted above, the apparent inconsistency between the Appellant’s statement that he did not drink and his acknowledged use of Baileys that morning. Further, he expressed concern about the fact that the Appellant and other underage campers did not see fit to advise either the Wardens or Constable Gonzalez that they had adult ‘chaperones’ or ‘guardians’ on site even while they were being questioned, ticketed and arrested.
As well, it is noteworthy that both Constable Gonzalez was summoned in part, based upon the Appellant’s request. Further, the two men took the test with no complaint or protest. This is in clear contrast with the Appellant’s response to the request by the Wardens for permission to search his vehicle. In addition, the record discloses numerous examples of the campers, including the Appellant
being less than truthful about the presence of alcohol, drugs and the use of the same.
Findings of credibility are properly within the Hearing Officer’s domain. Given the totality of evidence, it is our view that it was certainly open to him to accept the evidence of Constable Gonzalez. Expressed another way, based on what was before him, it was open to him to conclude that there was not weighty, cogent or reliable evidence upon which he acting with care and caution, could come to the reasonable conclusion that misconduct was established on a “clear and convincing” basis.
For the above-mentioned reasons, the decision of the Hearing Officer is upheld and the appeal is hereby dismissed.
DATED AT TORONTO THIS 1st DAY OF JUNE, 2006.
Murray W. Chitra Sylvia Hudson
Chair, OCCPS Vice Chair, OCCPS