OCCPS #07-11
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE PAUL STONE
Appellant
TORONTO POLICE SERVICE
Respondent
Presiding Members:
Murray W. Chitra, Chair
Hyacinthe Miller, Member
Appearances:
Alan D. Gold, Counsel for the Appellant
Michael G. Martosh, Counsel for the Respondent
Hearing Date: Monday, February 5, 2007
Constable Stone appeals his conviction for one count of corrupt practice contrary to section 2(1)(f)(v) of the Code of Conduct found at O. Reg. 123/98 (the “Code”) by Superintendent N.T. Tweedy (the “Hearing Officer”) on October 19, 2005.
As well, Constable Stone appeals the penalty imposed upon him on May 25, 2006 for this conviction and a related count of insubordination contrary to section 2(1)(b)(ii) of the Code to which he pled guilty.
The penalty imposed for both offences was demotion in rank from First to Third-Class constable for five months followed by ten months at Second-Class. Further, return to First-Class Constable status was to be contingent upon an assessment by the Unit Commander that Constable Stone was so qualified.
Background:
Constable Paul Stone is fifty-five years old. He has been a member of the Toronto Police Service for twenty-seven years.
On Wednesday, February 4, 2004 Constable Stone was working the midnight shift in 52 Division. He was alone, in uniform, driving a marked cruiser and assigned to traffic enforcement.
Early that morning he was conducting radar enforcement on Avenue Road near Dupont Street. At approximately 1:50 a.m. he observed a silver Mercedes speeding on Avenue Road. He flagged the vehicle over.
The car was being driven by M1, the owner of an upscale restaurant in downtown Toronto. M’s wife was in the passenger seat.
Constable Stone approached the vehicle and asked for M’s driver’s licence, ownership papers and proof of insurance. While M was getting his licence, Constable Stone observed “a flash of tin”. He asked M what it was.
M told Constable Stone that he was a “friend of the police”. He handed over a “police type wallet” containing a badge issued by the Toronto Police Association. It had M’s name inscribed on it.
At the same time, Constable Stone noted the smell of alcohol. He asked M if he had been drinking. M acknowledged that he had. Constable Stone asked him to take a roadside breath test. M became angry and refused.
Constable Stone arrested M, handcuffed him and placed him in the rear of the police cruiser. He returned to speak to M’s wife. She apologized for her husband’s behaviour, said he really was a nice guy, repeated that he was very “pro-police” and advised Constable Stone that many officers ate at their restaurant. She mentioned “Bro … the head of the Association and … the McCormack family”. Specific reference was made to Constable Michael McCormack, a director of the Toronto Police Association.
Constable Stone released M and allowed his wife to drive him home. He did not issue a ticket for speeding or lay a charge for refusing to provide a breath sample. Constable Stone made no entries in his notebook concerning the arrest. Further, he did not complete a “record of arrest” or “supplementary record of arrest” report.
That same morning or the next day, Constable Stone encountered Michael McCormack while he was on the way to court. They discussed paid duties, hockey and their respective families. Constable Stone mentioned stopping M on Avenue Road. Michael McCormack confirmed that M was a friend of his, a “very nice guy”, “police friendly” and that his family had dinner “the odd time” at M’s restaurant.
On Saturday, February 7, 2004 at 12:10 a.m. Constable Stone received a call on his cell phone from Constable William McCormack Jr., the brother of Michael McCormack. Unknown to either officer, at that time William McCormack’s calls were being intercepted as part of an unrelated criminal investigation.
William McCormack started off the conversation by saying that he understood Constable Stone had “got a friend of mine last night”. Constable Stone described his contact with M and the fact that M’s wife had “fucking dropped Mikey’s name” and that that was “good enough for me”. He went on to say that once he “dropped … [Michael McCormack’s] name I said … I figured fuck it, you know. I said I’ll … cut him”.
William McCormack stated that he was just about to stop at M’s restaurant and was “gonna chew him out”.
Constable Stone then said that he had received a phone call from Michael McCormack the previous day. He said Michael McCormack told him “he’s got a pair of tickets or something for me from this guy [M]” who was “really apologetic”. Constable Stone stated that this was not necessary, but “fuck it, you know what? … he’s tryin’ to give me tickets … I’ll take ‘em.” William McCormack responded “as long as he did good for ya. I was just going in to make sure he did …”
A few days later Constable Stone received two tickets from Michael McCormack for a Toronto Maple Leaf’s hockey game on Tuesday, March 9, 2004. The face value of the two tickets was $320. Constable Stone gave them to his children.
On May 31, 2004 Constable Stone was asked to respond to allegations that he had accepted hockey tickets for not making an arrest. In a written statement dated June 10, 2004 Constable Stone acknowledged stopping M on Avenue Road “in the Month of January 2004”. He wrote that “one or two weeks later”, while on his way to court, he met Michael McCormack who told him that he had “run into a friend of his”.
Constable Stone wrote that they parted company, and “one or two weeks after this date” he received a phone call from Michael McCormack asking him if he “could use a couple of tickets”.
Constable Stone concluded his statement by writing: “At no time did I accept Hockey Tickets or any other items in return for [not] proceeding with an arrest of a person.”
Constable Stone was subsequently charged with two counts of misconduct. One count was for the insubordination contrary to section 2(1)(b)(ii) of the Code. The specific allegation was that:
On Wednesday, February 4, 2004, you arrested [M] ... for failing to provide a roadside breath sample and released him unconditionally.
Investigation has revealed that you failed to submit a record of arrest or make any memo book notes in relation to the arrest, as required by Service Procedure 01-01, Arrest and Release.
In so doing, you did without lawful excuse, disobey, omit or neglect to carry out a lawful order.
The second count was for corrupt practice, contrary to section 2(1)(f)(v) of the Code. The allegation was that:
On Wednesday, February 4, 2004, you arrested [M] … for failing to provide a roadside breath sample and released him unconditionally.
Investigation has revealed that you received tickets to a hockey game from [M].
In so doing, you improperly used your character and position as a member of the Service for private advantage.
The Hearing:
Constable Stone’s disciplinary hearing was lengthy and complicated. It involved more that a dozen scheduled hearing dates over the course of a year and a half.
At different times Constable Stone was represented by four separate lawyers. They included Mr. Andrew McKay, Mr. Gary Clewley, Mr. George Tsimiklis and Mr. Alan Gold.
Mr. Clewley was Constable Stone’s lawyer on January 27, 2005. On that date Constable Stone pled guilty to the charge of insubordination. An Agreed Statement of Facts was tabled. A finding of guilt was entered.
Constable Stone then pled not guilty to the count of corrupt practice.
The Prosecutor called Inspector Paul Ziraldo and Detective Stephen Bell as witnesses. Several documents were received into evidence including records of off-line CPIC searches, ICAD reports, PARIS readouts, Constable Stone’s written statement, transcripts of radio calls and the wiretap referred to earlier.
At the conclusion of the Prosecution’s case Mr. Clewley brought a motion for a non-suit. He elected not to call evidence and argued that the Prosecutor had failed to make a prima facie case.
On February 15, 2005 the Hearing Officer dismissed the motion for a non-suit and was prepared to receive final submissions. However, Mr. Clewley advised the Hearing Officer that there was an ongoing investigation that could have a bearing on the proceedings, and requested an adjournment. With the consent of the Prosecutor the adjournment was granted.
When the proceedings reconvened on April 6, 2005 Mr. George Tsimiklis was representing Constable Stone. A further adjournment was granted at Mr. Tsimiklis’ request.
On June 14, 2005 when the proceeding continued, Mr. Tsimiklis brought an application before the Hearing Officer asking him to receive exculpatory evidence notwithstanding his ruling on the non-suit. Mr. Tsimiklis argued that, unless the Hearing Officer received the new, exculpatory evidence of a number of key witnesses, a breach of fundamental justice and procedural fairness would occur.
Mr. Tsimiklis also suggested that he was considering bringing a motion for a stay of the proceedings based on ineffective assistance of counsel. The Hearing Officer agreed to receive the exculpatory evidence. An application for a stay based on ineffective counsel was not initiated at that time.
During the following month, a number of witnesses testified. These included M, Peter Brauti, Michael McCormack and Constable Stone.
In his testimony, Constable Stone denied releasing M because M had “dropped names”. Rather, he stated that he did so because he did not feel M was impaired. Further, after speaking to M’s wife, Constable Stone came to believe that M’s conduct that morning was out of character and he deserved a break. Constable Stone denied either asking or expecting anything from M in return.
Constable Stone explained his remarks captured on the wiretap as being “exaggerated” and an attempt to “stroke” William McCormack because of his “higher status”.
Constable Stone also testified that he had some reservations when he later received the hockey tickets, but accepted them when he was assured that they were from Michael McCormack’s sister who worked for Molson’s.
In his testimony, M denied giving Constable Stone tickets.
Mr. Brauti’s evidence focused on an unrelated civil suit brought in November of 2004 by Michael McCormack against Gary Clewley and a number of other individuals.
In his testimony, Michael McCormack agreed that he had given hockey tickets to Constable Stone, but insisted that they were his to offer. He was then cross-examined about disciplinary charges that he was facing arising out of his involvement in the same matter.
Submissions were made on July 21, 2005.
On October 19, 2005 the Hearing Officer found Constable Stone guilty of corrupt practice. In his decision the Hearing Officer made various findings with respect to the credibility of witnesses. In particular, he concluded that the evidence of Michael McCormack was “hollow, evasive and not deserving of belief” and “an amateurish attempt to mislead this tribunal.”
The proceeding was set over to January 24, 2006 for a penalty hearing. On that date, the Hearing Officer was advised that Mr. Alan Gold was now Constable Stone’s lawyer. Mr. Gold requested an adjournment to prepare and to investigate the possibility of fresh evidence. The Hearing Officer granted the adjournment.
When the proceeding resumed on March 29, 2006 Mr. Gold brought two motions. The first was a motion for a declaration of a “mishearing” because of ineffective assistance of counsel for Constable Stone. This related to Mr. Clewley’s decision to agree to the admission of the William McCormack wiretap. Mr. Gold argued that because William McCormack had a civil suit against Mr. Clewley at the time, Mr. Clewley’s agreement to the admission of the wiretap evidence was in “his own interest” and “not in the best interests of Constable Stone”.
Mr. Gold’s second motion was directed at the Hearing Officer himself. In this motion it was alleged that a reasonable apprehension of bias on the part of the Hearing Officer existed and that the Hearing Officer should recuse himself and declare a “mishearing”.
As we noted above, while the disciplinary proceeding against Constable Stone was ongoing, Michael McCormack was also the subject of his own disciplinary proceedings. Both disciplinary hearings were being heard by the Hearing Officer.
During Michael McCormack‘s disciplinary proceeding a number of allegations of bias were made against the Hearing Officer. These allegations were eventually determined by Divisional Court. In a ruling dated November 30, 2005 that Court removed the Hearing Officer from the Michael McCormack proceeding.2
Essentially, Divisional Court found that Michael McCormack had been compelled to testify about his own disciplinary charges during the Constable Stone proceeding and the Hearing Officer had found that Michael McCormack was not a credible witness. The Court concluded that there would be a reasonable apprehension of bias and unfairness if the Hearing Officer were to continue to hear the Michael McCormack disciplinary matter.
Mr. Gold argued that the same concerns reflected in Divisional Court’s decision should apply to Constable Stone’s disciplinary proceeding.
The Hearing Officer denied both of Mr. Gold’s motions. He concluded that he had no authority to declare a “mishearing”. In particular, he found that having rendered his decision on the question of culpability it was not proper to revisit that issue at a subsequent phase of the hearing.
A number of witnesses were then called on the question of penalty. They included Staff Sergeant (retired) Douglas Ransom, Sergeant (retired) Dan Pearson, Professor John Daly, Staff Sergeant Kenneth Venables and Constable Ben Eng. A number of exhibits were filed relating to Constable Stone’s work history and character.
Oral submissions were made concerning the appropriate penalty. Mr. Gold called for a forfeiture of no more than twenty days. The Prosecutor argued for immediate dismissal.
The Hearing Officer delivered his penalty decision on May 25, 2006. As noted above, that penalty was demotion of Constable Stone from First to Third-Class Constable for five months to be followed by ten months at Second-Class. Return to First-Class status was to be contingent upon an assessment by Constable Stone’s Unit Commander that he is so qualified.
Appellant’s Position:
Mr. Gold appeared on behalf of Constable Stone.
At the commencement of this appeal Mr. Gold brought a motion under section 70(5) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) for leave to introduce new or additional evidence. The proposed new evidence consisted of an affidavit and various letters relating to Mr. Clewley’s role as Constable Stone’s counsel.
It was determined that most of the proposed new evidence had been placed before the Hearing Officer by Mr. Gold on March 29, 2006 during the course of his motion for a declaration of a “mishearing” because of ineffective assistance of counsel. As such, this information was already part of the hearing record and properly before us. Accordingly, Mr. Gold agreed it was not necessary to pursue his motion.
Mr. Gold then proceeded to challenge Constable Stone’s conviction on three grounds.
First, he argued that the Hearing Officer failed to either identify or find the essential elements of the disciplinary offence of corrupt practice. In particular, Mr. Gold asserted that the evidence before the Hearing Officer did not demonstrate a “purposeful quid pro quo” between the release of M and the receipt of the hockey tickets.
Further, Mr. Gold argued that the offence of corrupt practice required a mental element. In other words, it was necessary to show that Constable Stone actively and knowingly used his position when he stopped M with the intent of receiving a private advantage. Mr. Gold asserted that a subsequent unsolicited gift of tickets would not meet that requirement.
Second, Mr. Gold argued that the Hearing Officer erred by finding that he had no authority to hear the motion with respect to the ineffective assistance of counsel.
He noted that it is well established that a lawyer must not act when in a conflict of interest with his or her client. He drew our attention to Rule 2.04 of the Rules of Professional Conduct of the Law Society of Upper Canada, R. v. Henry (1990), 1990 CanLII 3201 (QC CA), 61 C.C.C. (3rd) 455 (Q.C.A.), R. v. W.W. and I.W. (1995), 1995 CanLII 3505 (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.) and Gateman and London Police Service (1999), 3 O.P.R. 1282 (O.C.C.P.S.).
Mr. Gold argued that Mr. Clewley should not have represented Constable Stone because he was the subject of a civil suit brought by Michael McCormack. In particular, Mr. Clewley should not have agreed to the release of the Michael McCormack wiretap without fully disclosing to Constable Stone his personal interest in publicly depicting Michael McCormack in an unfavorable light.
Third, Mr. Gold asserted that the Hearing Officer erred by failing to recuse himself because of a reasonable apprehension of bias and declare a “mishearing”.
In support of his submission, Mr. Gold drew to our attention a number of cases that described the test to be applied when assessing whether or not a reasonable apprehension of bias exists. These included: Committee for Justice and Liberty v. Canada (National Energy Board) 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 (S.C.C.), R v. S (R.D.) (1997), 1997 CanLII 324 (SCC), 118 C.C.C. (3d) 353 (S.C.C.), Canadian Pacific v. Matsqui Indian Band 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3 (S.C.C.), Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623 (S.C.C.) and United Transportation Union v. Canadian National Railway Co. [2004] O.J. No. 883 (Ont. S.C.J.).
Mr. Gold argued that in its decision in McCormack v. Toronto (City) Police Service supra., Divisional Court found that a bona fide concern existed about the Hearing Officer’s ability to judge Michael McCormack fairly. Given that Michael McCormack was a key witness for Constable Stone in his disciplinary proceeding, the same concerns should arise in that case as well.
Mr. Gold then challenged the penalty imposed. He suggested that the Hearing Officer punished Constable Stone for matters beyond the scope of the original Notice of Hearing.
Further, he alleged that the Hearing Officer failed to give proper weight to Constable Stone’s employment history and character references. As well, he asserted that the penalty was harsh, excessive and disproportionate to other penalties imposed for similar offences.
On this latter point Mr. Gold drew our attention to Mason and Hamilton-Wentworth Regional Police Service (2000), 3 O.P.R. 1386 (O.C.C.P.S.), Carson and Pembroke Police Service (2001), 3 O.P.R. 1479 (O.C.C.P.S.) and Besco and Peel Regional Police Service (2001), 3 O.P.R. 1496 (O.C.C.P.S.).
In conclusion, Mr. Gold asked that we set aside the conviction or in the alternative order a new hearing. Assuming that we determine that the conviction is to stand he requests that the Hearing Officer’s penalty be reduced.
Respondent’s Position:
Mr. Martosh appeared on behalf of the Respondent.
He described to us the nature of the police disciplinary scheme, the role of the respective parties, the applicable burden of proof and the function of the Commission on appeal. On these points he drew our attention to a number of cases and various provisions in the Act and Code.
Mr. Martosh noted that the courts have held that for an officer to be found guilty of the disciplinary offence of corrupt practice there must be an element of “moral degeneracy”. P.G. v. Ontario (Attorney General) [1996] O.J. No. 1298 (Div. Ct.)
He drew to our attention a number of cases dealing with allegations of this type. These included Coon and Toronto Police Service (April 10, 2003, O.C.C.P.S.), Besco and Peel Regional Police Service supra., Gateman and London Police Service supra., Delano and Niagara Regional Police Service (1998), 3 O.P.R. 1297 (O.C.C.P.S.) and Brooks and Durham Regional Police Service (1990), 2 O.P.R. 869 (O.C.C.P.S.).
Mr. Martosh asserted that the Hearing Officer properly considered the evidence before him. This included fairly weighing and assessing the credibility of witnesses.
Mr. Martosh argued that there was more than enough evidence before the Hearing Officer to permit him to find that Constable Stone, through the agency of Michael McCormack, had received hockey tickets, either from or on behalf of M, in a transaction directly related to M’s arrest and release without charges on the morning of February 4, 2004. This finding was sufficient to properly support a conviction for corrupt practice.
Mr. Martosh then spoke to the issue of ineffective assistance of counsel. He noted that Mr. Clewley’s alleged conflict of interest was known to Constable Stone and his new counsel, Mr. Tsimiklis, early in the hearing process. Mr. Tsimiklis made a clear choice not to formally raise the issue with the Hearing Officer. Instead, Mr. Tsimiklis chose to proceed with Constable Stone’s defence.
Mr. Martosh suggested that, even if the issue had been formally raised, in civil matters ineffective assistance of counsel has only been accepted by courts as a ground for ordering a new trial in the rarest of situations. Mr. Martosh asserted that this was not one of those cases. D.W. White 2004 CanLII 22543 (ON CA), [2004] O. J. No. 3441 (Ont. C.A.) and Dominion Readers’ Service Ltd. v. Brant et al. (1982), 1982 CanLII 1771 (ON CA), 41 O.R. (2d) 1 (Ont. C.A.)
Mr. Martosh argued that by the time the question of ineffective assistance of counsel was formally raised by Mr. Gold during the penalty phase of the hearing, for all practical purpose, it was too late. Constable Stone must live with the tactical decision of his previous counsel not to bring the matter forward in a timely manner. Constable Stone was not entitled to reserve a ground of disqualification for later use, if his earlier choices turned out unfavourably.
On this point Mr. Martosh cited Re Mullins and Mullins et al. (1983), 42 O.R. (2d) 208 (Div. Ct.), Eckervogt v. British Columbia (Minister of Employment and Investment) (2004), 2004 BCCA 398, 241 D.L.R. (4th) 685 (B.C.C.A.), Stetler et al. v. The Ontario Flue-Cured Tabacco Growers’ Marketing Board et al. (2005), 2005 CanLII 24217 (ON CA), 76 O.R. (3d) 321 (Ont. C.A.) and F. Zorman and Co. Real Estate Ltd. v. Toronto Real Estate Board (1982), 1982 CanLII 2202 (ON HCJ), 36 O.R. (2d) 724 (Div. Ct.).
Mr. Martosh also suggested that having registered a conviction the Hearing Officer was functus. In other words, he had no authority to revisit his earlier decision. Mr. Martosh acknowledged that sections 21.1(1), 23(1) and 25.1(1) of the Statutory Powers Procedure Act R.S.O. 1990, c. S.22 as amended or rules of natural justice might allow for reconsideration in certain situations. However, he asserted that the necessary regulatory or factual preconditions did not exist in this case.
On the latter question he drew our attention to Chandler v. Alberta Association of Architects 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848 (S.C.C.), Olson v. Law Society of Alberta [1998] M.J. No. 167 (Q.B.), Cate and Peel Regional Police Service (2001), 3 O.P.R. 1491 (O.C.C.P.S.) and Toronto Housing Co. v. Sabrie (2003), 2003 CanLII 27388 (ON SCDC), 168 O.A.C. 363 (Div. Ct.).
Mr. Martosh then turned to the issue of reasonable apprehension of bias. He identified the test to be applied in assessing whether or not apprehended bias might exist. In addition to the cases noted by Mr. Gold, he cited Baker v. Canada (Minister of Citizenship and Immigration) 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (S.C.C.), Wewaykum Indian Band v. Canada 2003 SCC 45, [2003] 2 S.C.R. 259 (S.C.C.), Bell Canada v. Canadian Telephone Employees Association 2003 SCC 36, [2003] 1 S.C.R. 884 (S.C.C.) and Marchand v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (Ont. C.A.).
Mr. Martosh argued that an informed person, viewing the disciplinary proceeding in its totality, both realistically and practically would find no evidence to support a finding of reasonable apprehension of bias.
Mr. Martosh then spoke to the issue of penalty. He noted the factors to be taken into account by the Hearing Officer when imposing disciplinary sanctions and the standard of review to be applied by the Commission on penalty appeals. He cited several cases on these points.
Mr. Martosh drew to our attention the manner in which the Hearing Officer dealt with the various factors. He argued that all relevant considerations had been taken into account by the Hearing Officer and that there was no manifest error in principle.
For the above-noted reasons Mr. Martosh asked that this appeal be dismissed, and both the conviction and penalty upheld.
Decision:
Police disciplinary proceedings are labour relations matters of an administrative law nature. They are governed by the provisions of the Act, the Statutory Powers Procedure Act and principles of procedural fairness.
In police disciplinary proceedings hearing officers must receive evidence, assess the credibility of witnesses, determine relevancy, make findings of fact and apply the pertinent law.
Ultimately, a hearing officer must determine whether or not there is clear and convincing evidence to establish the essential elements of the alleged disciplinary offence.
Constable Stone was charged with two disciplinary offences. The one that concerns us arises from section 2(1)(f)(v) of the Code. That section deems it to be misconduct if an officer “improperly uses his or her character and position as a member of the police force for private advantage”.
This section was considered by Divisional Court in P.G. v. Ontario (Attorney General). At paragraphs 68 to 71 of that decision Mr. Justice O’Driscoll stated:
Section 1(f) of the Code of Offences has as its heading “corrupt practice”. The section commences by stating that a police officer
“commits an offence against discipline, if he or she is guilty of corrupt practice, that is to say if he or she …”
In my view, “corrupt practice” under s. 1(f) includes an element of moral degeneracy because of the inclusion of the word “corrupt”.
In my view, the word “improperly” in s. 1(f)(v) should be given its ordinary dictionary meaning of “inaccurate, wrong, unseemly, indecent; not in accordance of with rules of conduct”: The Concise Oxford Dictionary. “Includes willful disobedience of order”; The Dictionary of Canadian Law.
In my view, the idea of “perceived” has no part to play in the offence set out in s. 1(f)(v) of the Code.
The Alberta Law Enforcement Review Board described the test for assessing corrupt practice as follows: “[t]he critical consideration is whether or not a police officer has used his or her office to secure a position that would not otherwise accrue.”3
Early on the morning of February 4, 2004 Constable Stone stopped, arrested and then unconditionally released M. There is no dispute that Constable Stone subsequently received free hockey tickets. It goes without saying that the receipt of free Maple Leaf hockey tickets is a benefit or advantage.
The question for the Hearing Officer was whether there was clear and convincing evidence establishing that the release of M and the receipt of free hockey tickets were linked. Put another way, was Constable Stone’s receipt of the free hockey tickets the result of a morally tainted, improper use of his position as a member of the Toronto Police Service?
The question for this appeal is different. As described in Williams and Ontario Provincial Police 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 question to be asked in this case is, are the conclusions of the adjudicator void of evidentiary foundation?
As well, if a hearing officer misapprehends the evidence or makes a clear error of law, then we have the power to vary or revoke the Hearing Officer’s decision.
How do these considerations apply to this case?
The Hearing Officer released his 29-page decision on October 19, 2005. In his reasons he summarized events leading up to the laying of the disciplinary charges. He then reviewed the “uncharacteristic” history of the disciplinary proceeding.
The Hearing Officer described in some detail the evidence presented to him. This included the testimony of the individual witnesses. He then summarized the oral submissions of counsel.
In his reasoning, the Hearing Officer made particular note of the wiretap evidence. He described it as a “rare and raw insight into the activities of two serving police officers”. He went on state that “In the absence of credible evidence and believable explanation, the wiretap conversation alone, is powerful evidence of public badge carrying, neglect of duty, preferential treatment and corrupt intention to receive a reward.”4
The Hearing Officer made the following findings about that evidence: Police Constable Stone was only to [sic] happy to explain the traffic stop, his motivation to arrest and release [M], his meeting and later telephone conversation with Michael McCormack and his intention to accept hockey tickets from [M]. All of which was in gratitude and in furtherance to [M’s] apology, for his failure to provide a breath sample and his abusive and belligerent roadside conduct.
Further, the conversation reveals Police Constable Stone giving direction to Police Constable William McCormack on how to introduce the traffic stop discussion, as he was about to enter [M’s] restaurant to solicit some benefit and ensure [M] becomes aware that Police Constable Stone is “not a bad guy”.5
The Hearing Officer rejected Constable Stone’s subsequent exculpatory explanation. In particular, he noted the differences between the wiretap evidence, Constable Stone’s testimony and his statement of June 10, 2004. The Hearing Officer concluded that Constable Stone’s various stories “do not fit”.
The Hearing Officer found the testimony of M as “unconvincing” and that it “appeared bothersome for him to deliver”. He concluded that the evidence of
Michael McCormack was “convoluted”, “hollow and evasive and not deserving of belief.”
As noted earlier, findings of credibility are within the Hearing Officer’s purview. In this case, the Hearing Officer’s findings were made after a lengthy proceeding that lasted almost a year and a half. The Hearing Officer had the benefit of seeing the various witnesses and assessing their testimony against other evidence presented.
To our mind, having reviewed both the Hearing Officer’s reasons and the record, it cannot be said that his conclusions with respect to credibility are evidently wrong, reflect clear error or cannot reasonably be accepted.
On February 4, 2004 M was speeding. He had consumed alcohol. Constable Stone properly stopped M’s car and demanded a breath sample. M flashed a badge at Constable Stone. When M refused to provide a sample M was properly arrested.
While M was confined in the back of the cruiser, his wife started to mention the names of current and former police officers. She eventually got to Michael McCormack. According to Constable Stone’s explanation on the wiretap that “was good enough for me” and “I said … I’ll cut him”. M was neither ticketed nor charged for the offences that he clearly had committed.
Given the circumstances, Constable Stone’s decision to release M had obvious hallmarks of “wrongness” and “moral degeneracy”. It is self-evident that who you know should have nothing to do with how the law is applied to you.
Further, Constable Stone’s subsequent exculpatory explanation of his decision to release M rings hollow in the face of the fact that he made no entries in his notebook, nor did he prepare and file the reports mandated for all arrests.
As a police officer with more than a quarter century of experience, Constable Stone would have been aware of the importance of such documentation. It is required to ensure accountability for the exercise of police powers and to establish a proper official record in the event of subsequent criminal or civil proceedings.
In addition, when Constable Stone was asked in May of 2004 to account for his actions he was either vague or inaccurate as to the timing of the traffic stop and subsequent related conversations: i.e., that he stopped M in January rather than February, and he spoke to Michael McCormack one to two weeks after that event rather than one to two days.
Unfortunately, Constable Stone’s conduct did not conclude in the early hours of February 4, 2004. Shortly thereafter he had two contacts with Michael McCormack, the individual whose name was “dropped” by M’s wife. Hockey tickets were offered to him. Constable Stone’s unguarded response, reflected on the wiretap, was that if M wanted to give him tickets, he would take them.
It was not unreasonable for the Hearing Officer to conclude that this offer flowed directly from Constable Stone’s questionable actions while in uniform and on duty on the morning of February 4, 2004. There is a clear nexus between the two events. Tickets were delivered to Constable Stone a few days later.
We believe that it was open to the Hearing Officer, given the evidence before him, to reject the subsequent exculpatory explanation as to the origin of the tickets. It was not unreasonable for the Hearing Officer to find, based on a preponderance of probabilities, that the likely source of the tickets was either M or someone acting on his behalf.
Given the above, we are satisfied that there was an evidentiary foundation to permit the Hearing Officer to register a conviction for the disciplinary offence of corrupt practice against Constable Stone.
That brings us to the issue of ineffective assistance of counsel. At the beginning of the penalty phase of the hearing Mr. Gold brought a motion seeking a “mishearing” because of the conduct of Mr. Clewley during the earlier phase of the disciplinary proceeding.
The Hearing Officer rejected this motion. As authority, he cited Cate and Peel Regional Police Service supra., at page 1494:
A Hearing Officer conducting a disciplinary proceeding is a ‘creature of statute’. By that, we mean that he or she can only exercise those powers granted by law …
Accordingly, the question to be answered is whether or not there is a clear power granted to the Hearing Officers under either Part V of the Act or in the general provisions of the Statutory Powers Procedures Act to order a mistrial.
We can find nothing in that legislation which would suggest to us that a Hearing Officer, having received three days of evidence and rendered a written decision finding guilt, can revisit that decision during a subsequent phase of a hearing.
On this point, there is no doubt that the Hearing Officer was correct. However, even if that were not so, and authority for such power could be found elsewhere, we believe this ground of appeal must fail.
At the heart of Mr. Gold’s motion was Mr. Clewey’s agreement to the admission of the wiretap evidence into the record of the disciplinary proceeding in the face of an undisclosed alleged conflict of interest between Mr. Clewley and Michael McCormack.
The decision to admit the evidence in question was not made by Mr. Clewley alone. This is reflected in a Direction and Acknowledgement dated January 26, 2005 signed by Constable Stone. It reads:
I, Paul Stone, hereby acknowledge and direct my counsel, Mr. Gary Clewley, to advise the prosecutor that I intend to plea guilty to the charge of neglect of duty (failure to complete the paperwork in connection with the arrest of Mr. M. in February 2004). I intend to plea not guilty to the charge of corrupt practice in connection with the same incident.
I have reviewed the disclosure regarding my charges on several occasions. Mr. Clewley has reviewed the same disclosure with me. He has explained all my options to me, including the strategy behind my plea of guilty to one charge and my plea of not guilty to the other.
In addition, Mr. Clewley has reviewed the admissibility of the wiretap conversation between me and Bill McCormack. I agree that we should admit this conversation. I understand that it assists me in proving that I did not agree to accept any form of payment in return for releasing Mr. M on the date in question. Accordingly, I understand that the bulk of the prosecution’s case will be admitted by me because it does not show that I accepted payment at the time that I released Mr. M.
I am fully satisfied with Mr. Clewley’s representation of me. I am pleading guilty to one charge voluntarily and understand the strategy underlying my defence completely.
The above speaks for itself.
Further, even if there had been no consent to the admission of the wiretap evidence, it is highly probable that it would have been accepted as evidence in the normal course, regardless of who was representing Constable Stone. The rules for the admission of evidence in administrative proceedings are generous.
Section 15(1) of the Statutory Powers Procedure Act states:
15(1) … a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony, and
(b) any document or other thing,
relevant to the subject matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
The subject matter of Constable Stone’s disciplinary proceeding was whether or not he had improperly received free hockey tickets as a consequence of his official dealings with M. A judicially authorized wiretap that contained discussion between Constable Stone and another person about the events of February 4, 2004 and the subsequent offer of free hockey tickets from M is unquestionably relevant.
Finally, it is worth noting that Mr. Clewley’s alleged conflict of interest became known to Constable Stone well before a conviction was registered against him. Indeed, on more than one occasion, his third lawyer, Mr. Tsimiklis, mentioned to the Hearing Officer the possibility of bringing a motion alleging ineffective assistance of counsel. This did not occur. Accordingly, this question was not brought forward in a timely manner.
Rather, it would appear that a tactical decision was made to call several witnesses and offer a full defence based on exculpatory evidence. Mr. Tsimiklis made sure that Constable Stone’s position was fully and vigorously put before the Hearing Officer. Whatever concerns may have existed with respect to Mr. Clewley, it cannot be said that in the broader context of the full disciplinary proceeding, Constable Stone was not heard.
This brings us to the issue of the reasonable apprehension of bias. As mentioned above, Mr. Gold brought a second motion on March 29, 2006 requesting a “mishearing” on this basis. The Hearing Officer rejected this application for the same reasons as he did on the motion with respect to ineffective assistance of counsel.
It is worth pointing out that the potential for a reasonable apprehension of bias can arise at any time during a disciplinary proceeding. It is not restricted to the conviction phase of a hearing.
The alleged apprehension in this case flowed from a decision of the Divisional Court dated November 30, 2005. This was more than a month after Constable Stone was convicted by the Hearing Officer. That being the case, it was certainly proper for Mr. Gold to raise this question when he did.
It would have been preferable if the Hearing Officer had addressed this motion on its merits. He did not. That leaves the question to us.
Divisional Court’s decision essentially dealt with the potential impact of the Hearing Officer’s finding that Michael McCormack was not a credible witness in Constable Stone’s disciplinary proceeding on the Hearing Officer’s capacity to treat Michael McCormack’s impartially in another matter. In other words, having found Michael McCormack not credible once, would a reasonable person find it more likely than not that the Hearing Officer, consciously or unconsciously, had developed preconceptions that might cause a legitimate apprehension that he might not fairly assess Michael McCormack on a second occasion?
Divisional Court’s conclusion on this question was both clear and understandable. However, with the greatest of respect to Mr. Gold’s able augments, this logic does not flow in both directions.
As part of his defence, Constable Stone called Michael McCormack as a witness. Constable Stone was entitled to do so. The Hearing Officer was then required to weigh and assess Michael McCormack’s testimony and make findings of credibility. As noted above, it was open to the Hearing Officer to reject Michael McCormack’s evidence.
That conclusion may raise legitimate concerns about perceptions that might arise if the Hearing Officer were called upon to assess Michael McCormack’s credibility again in other proceedings. However, this does not mean that the first assessment was flawed, inappropriate or in some fashion tainted.
Indeed, our review of the record shows that the Hearing Officer went out of his way to ensure that Constable Stone received a fair hearing. This included the granting of numerous adjournments. Further, the Hearing Officer permitted Constable Stone to essentially reopen his defence by allowing him to call exculpatory evidence, notwithstanding the Hearing Officer’s ruling on the motion for a non-suit.
Given the above, we do not believe that there are sufficient grounds for us to disturb the Hearing Officer’s findings because of any concerns with respect to a potential apprehension of bias.
That leaves the question of penalty.
The factors to be considered by a hearing officer in assessing penalty are well established. They have been articulated in many decisions. In Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.) at page 1169 to 1170 they were described as follows:
In Williams and OPP (December 4, 1995, O.C.C.P.S.), the Commission identified three key elements to be taken into account. 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.
There are also other factors which can be relevant, either mitigating or aggravating the penalty depending on the particular 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 circumstances.
Finally, other considerations could include provocation, the need for deterrence and concerns arising from management approach to the misconduct in question.
When imposing penalty it is also important to take into account prior disciplinary cases dealing with similar types of misconduct. The reason for this is simple. As the Commission stated at page 615 in its decision in Schofield and Metropolitan Toronto Police: “Consistency in the disciplinary process is often the hallmark of fairness. The penalty must be consistent with the facts and consistent with similar cases that have been dealt with on earlier occasions.”
Our role is to assess whether or not the Hearing Officer has fairly and impartially applied these sentencing principles. We have the authority to vary a penalty only when the essential factors have not been considered or there is a manifest error. We cannot substitute our opinions for that of the Heating Officer.
The Hearing Officer delivered his nineteen-page penalty decision on May 25, 2006. In his reasons he described the events giving rise to the convictions for both insubordination and corrupt practice. He summarized the evidence presented and submissions made with respect to penalty. This included the fact that the Prosecutor was seeking Constable Stone’s dismissal.
The Hearing Officer identified the relevant dispositional factors and dealt with each in turn.
He described the conduct in question as being “of the most serious kind for the police profession”. In particular he noted that “[e]ngaging in preferential treatment about a criminal matter, (impaired driving), and then accepting benefit, hurts the integrity of the policing profession immensely and undermines its values.”6
He concluded that this type of conduct warranted both specific and general deterrence.
The Hearing Officer observed that “Police Constable Stone undermined the proper administration of justice for personal reasons and then accepted personal gain and then lied when held to account.”7 He then went on to find that Constable Stone’s actions and the subsequent attention that they had received resulted in “damage to the reputation of the Service [that] must be estimated as significant and hurtful to any effort of building or maintaining public trust.”8
The Hearing Officer also noted that the facts of this case did not disclose any concerns relating to handicap or provocation. He acknowledged the impact of the conviction on Constable Stone’s family but found that “[t]here is no clear evidence of extenuating hardship.”9
To our mind, these are all fair observations.
The Hearing Officer acknowledged Constable Stone’s good work history, the numerous complimentary letters on his file and the positive testimony of his colleagues. He identified two Unit level disciplinary issues and some comments in Constable Stone’s annual performance assessments encouraging improvement. However, overall he concluded: “These are the first Police Service Act convictions over 26 years of public service. I accept the evidence of the character witnesses, as they see it and that is a matter of mitigation.”10
The Hearing Officer then explored the concept of potential rehabilitation. He noted that Constable Stone had not pled guilty or expressed remorse on the corrupt practice matter. However, he found: “On balance, I must conclude, there is prospect of rehabilitation, as mitigation, linked to his work history and unblemished record over 26 years and further, his character as described in the testimonials that cannot be overshadowed by his failure to demonstrate evidence of remorse, as he defended himself to the fullest.”11
From the above, it is evident that the Hearing Officer properly acknowledged Constable Stone’s employment history and potential for rehabilitation.
Finally, the Hearing Officer addressed the question of consistency of penalty. He stated that ensuring consistency in this case was not simple given that “there were very few cases of this nature before police tribunals”.12 That is certainly a correct statement.
In the end, he concluded that, balancing the facts and given the seriousness of the offence a proper penalty was demotion.
We agree. Overall, we find that the Hearing Officer’s approach to the question of penalty was thorough, balanced, considered and fair.
Corrupt practice is one of the most serious charges an officer can face. In this case, Constable Stone exercised his authority in a preferential manner and received a personal benefit. He failed to make notes or prepare required reports. This type of conduct goes to the heart of public confidence in the integrity of policing. It warrants a significant penalty.
For the above noted reasons, the appeal against conviction and penalty is dismissed.
DATED AT TORONTO THIS 4TH DAY OF JULY 2007.
Murray Chitra Chair, OCCPS
Hyacinthe Miller Member, OCCPS
Footnotes
- Name modified.
- McCormack v. Toronto (City) Police Service [2005] O.J. No. 5149 (Div. Ct.)
- Goodwin and Calgary Police (1998), 6 A.L.E.R.B.J. 236 (L.E.R.B.) at page 238.
- Transcript of Disciplinary Proceeding, October 19, 2005 at pages 19 to 20.
- Ibid., page 20.
- Transcript of Disciplinary Proceeding, May 25, 2006 at page 12.
- Ibid., page 14.
- Ibid., page 16.
- Ibid., page 17.
- Ibid., page 15.
- Ibid., page 17.
- Ibid., page 18.