OCCPS #07-03
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE JOSEPH CARRIERE Appellant
GREATER SUDBURY POLICE SERVICE Respondent
Presiding Members: Noëlle Caloren, Member Hyacinthe Miller, Member Garth Goodhew, Member
Appearances: Terry P. Waltenbury, Counsel for the Appellant Réjean Parisé, Counsel for the Respondent
Hearing Date: August 9, 2006
This is an appeal from convictions on three counts of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct (the "Code") contained in Ontario Regulation 123/98 by Inspector Dan Markiewich (the "Hearing Officer") on November 25, 2005.
Constable Carriere also seeks the reconsideration of the penalty of dismissal imposed by the Hearing Officer in the event that the finding of guilt on the most serious count of discreditable conduct ("Count Number 3") is set aside.
Background:
Constable Joseph Carriere is a first-class constable with the Greater Sudbury Police Service (the "Service"). He began his employment with the Service on July 26, 1999. He is alleged to have, on three separate occasions and in respect of three different women, engaged in conduct of a sexual nature being prejudicial to discipline or likely to bring discredit upon the reputation of the Service.
Although the fact that Constable Carriere interacted with the three complainants is not contested, the factual details pertaining to those occurrences and whether they constitute misconduct are in dispute.
Count Number 1 relates to an allegation that between October and December 2002, Constable Carriere returned home in the early morning hours after completing his shift and went to the downstairs recreation room where R1, the family babysitter and relative of Constable Carriere's spouse, was lying on the couch. It is alleged that Constable Carriere entered the room and turned on the television to a pornographic channel and asked R if she wished to watch him masturbate.
R apparently turned her back to the television while the program was playing but she could hear Constable Carriere masturbating. R requested on at least two occasions that Constable Carriere abstain from doing so, advising him that if he did not stop, she would wake his wife who was sleeping upstairs. After being warned by R, Constable Carriere apparently left the room. At the time of the incident, R was 18 years of age and Constable Carriere was 38.
Constable Carriere confirms that there was an evening when he came home from work and attended the downstairs recreation room where he found R on the couch. He contends however, that R was already watching a pornographic program on television and that he and R talked about the program and discussed her sex life as well. Constable Carriere acknowledges that the topic of masturbation was discussed generally, however, he denies having asked R to watch him masturbate and further denies having masturbated in her presence.
The second count of discreditable conduct relates to an incident that occurred in June of 2003, and involved the complainant S, who is also a relation of his spouse. While off duty, Constable Carriere attended S's Sudbury residence to help her unlock her vehicle so that S could make a trip to a hospital in Ottawa. During Constable Carriere's efforts to open the door with a coat-hanger, they worked in close proximity to each other.
S contends that Constable Carriere rubbed his groin area three times against her buttocks and that he made a sexually explicit comment about his efforts to open her vehicle door, to the effect of "It's almost like having sex." S stated that initially she thought the contact could have been accidental but as it continued to occur she could not believe what was happening since Constable Carriere was connected to the family, was her son's godfather and because he was a police officer. When the car door was finally opened, S stated that she turned and observed that Constable Carriere had an erection. He then asked to use her washroom and subsequently left.
Constable Carriere acknowledges that he lent S assistance in unlocking the door of her vehicle and that in doing so, he worked in close physical proximity to her. He denies however that he touched her in a sexually inappropriate way although he concedes that at one point in time he may have made a comment to the effect that "it's kind of almost like sex kinda idea". Constable Carriere claims that this statement was made to acknowledge what he perceived to be a comical situation. Constable Carriere denies that he had an erection and states that he simply left after he had completed his task and assisted S in carrying bags from the house.
The third count of discreditable conduct relates to an allegation of sexual assault that Constable Carriere allegedly committed against a former girlfriend, L, while they were on a camping trip sometime prior to the breakup of their relationship in the Fall of 1993. Constable Carriere was not a police officer at that time. It is alleged by L that while she and Mr. Carriere were in their tent, he forced himself onto her and had sexual intercourse with her, contrary to her wishes.
L states that she told Constable Carriere several times she did not want to have sex with him but he used physical force to restrain her and after the incident, he said words to the effect, "See how it feels when you say no. You say no and nobody listens." L also described Constable Carriere as having been somewhat demanding of her sexually during the relationship although she did not realize this at the time.
Constable Carriere denies that he forced unwanted sexual intercourse on L during a camping trip. He further denies any inappropriate sexual activity involving the complainant and himself at any time during their relationship.
The Hearing:
A disciplinary hearing was held before the Hearing Officer on September 6, 7, 8 and 19, 2005 and October 18, 2005. Evidence was heard from Constable Carriere and from the prosecution witnesses and complainants R, S and L. The Tribunal also heard from S's mother and from a woman who cohabited with Constable Carriere during 2002 and 2003. Detailed evidence was presented by both the prosecution and the defence regarding the allegations noted in the Background section above.
On the basis of the evidence heard, and his assessment as to the credibility of the witnesses, the Hearing Officer found Constable Carriere guilty of discreditable conduct in respect to all three counts.
On February 22, 2006, the Hearing Officer ordered Constable Carriere's dismissal unless he resigned from the Service within seven days.
The Appellant's Position:
Mr. Waltenbury, on behalf of Constable Carriere, challenges the findings of guilt of the Hearing Officer on all three counts.
The Appellant acknowledged that the proper standard of review of a Hearing Officer's decision on appeal is articulated in Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.). In accordance with the standard, the role of the Commission is not to second-guess the decision of the Adjudicator although in certain limited cases, it will be open to the Commission to reach a different conclusion from the trier of fact.
Mr. Waltenbury argued that this was a case warranting the Commission's intervention. In support of his argument, Mr. Waltenbury argued that the Hearing Officer's determinations could not be found to withstand the application of the principles of logic and common sense which are necessary components of the concept of reasonableness which must characterize first level decisions.
Mr. Waltenbury argued that the Hearing Officer erred in interpreting the evidence in three distinct ways. He articulated his grounds for appeal as follows:
Fundamental mistakes were made by the Hearing Officer in his approach to credibility;
The Hearing Officer had no basis for rejecting the evidence of Constable Carriere; and
The Hearing Officer misapplied the standard of clear and convincing evidence, resulting in his erroneous conclusion that the three counts had been established.
The Appellant argued that the Hearing Officer erred by approaching the case before him as a "contest of credibility" between Constable Carriere and the prosecution witnesses. The Appellant contends that by doing so, the Hearing Officer placed the hearing in an "outright winner" versus "outright loser" framework. He further contends that the credibility of the witnesses was established solely through an assessment of their demeanor and appearance, while the other elements necessary to determine credibility, such as opportunities for knowledge, powers of observation, judgment, memory and ability to describe clearly what he has seen or heard were not taken into account.
The Appellant also submitted that the Hearing Officer failed to give any meaningful consideration to the inconsistencies in the witnesses' testimony thus failing to provide any insight as to how they impacted upon the witnesses' credibility or the reliability of their evidence. In this regard, Mr. Waltenbury submitted that the Hearing Officer erred in concluding that Constable Carriere's evidence was not worthy of belief simply because his evidence was not consistent with that of the complainants and the other witnesses.
Finally, he argued that to conclude that an accused is not worthy of belief simply because he denies the complainant's allegations displays a total lack of understanding and appreciation of fundamental evidentiary principles. He argued that the Hearing Officer's approach amounted to a misapplication of the clear and convincing evidence test.
Based on these factors, the Appellant is seeking an order granting the Appeal and setting aside the findings of discreditable conduct. In support of his arguments, Mr. Waltenbury drew our attention to Williams and Ontario Provincial Police, Besco and Peel Regional Police (2001), 3 O.P.R. 1496 (O.C.C.P.S), Krug and Ottawa Police Service (January 21, 2003, O.C.C.P.S.), Geske and Hamilton Police Service (April 2, 2003, O.C.C.P.S.), Pacitto and Toronto Police Service (May 6, 2004, O.C.C.P.S.), Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services (1985), 1985 CanLII 2053 (ON HCJ), 51 O.R. (2d) 302 (Ont. Div. Ct.), Lloyd and London Police Service (1999), 3 O.P.R. 1345 (O.C.C.P.S.), R. v. M.J., 2002 CanLII 49364 (ON CA), 2002 O.J., No. 1211 (Ont. C.A.), R. v. Chartrand 2002 CanLII 6331 (ON CA), [2002] O.J., No. 4791 (Ont. C.A.), R. v. Tahirkheli (1998), 1998 CanLII 6243 (ON CA), 130 C.C.C. (3d) 19 (Ont. C.A.), Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354 (B.C.C.A.), R v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont. C.A.), McGuire v. Royal College of Dental Surgeons of Ontario (1991), 1991 CanLII 8372 (ON CTGDDC), 77 D.L.R. (4th) 732 (Ont. Div. Ct.), Cannon v. Berllinquette 1997 CanLII 6384 (FC), [1998] 2 F.C. 104 (F.C.T.D.), Statutory Powers Procedure Act R.S.O. 1990, c. S. 22, section 10.1 and Police Services Act R.S.O. 1990, c. P.15, section 70(5).
The Respondent's Position:
Mr. Parisé, on behalf of the Service, argued that the findings of guilt regarding the three counts of discreditable conduct should stand.
He argued that the Hearing Officer's decision contained a careful and accurate summary of the allegations and the evidence put forth by the prosecution and the defence. He maintained that the decision revealed a thorough consideration of all of the evidence put before the Hearing Officer and consequently revealed no substantial error in respect of his apprehension of the evidence.
Mr. Parisé asserted that the Hearing Officer properly applied the test of clear and convincing evidence and was, on the basis of the testimony put forth by the various witnesses, entitled to make the findings of credibility that he did.
Mr. Parisé also reminded us that pursuant to the Ontario Divisional Court decision in Toronto (City) Police Service v. Blowes-Aybar 2004 CanLII 34451 (ON SCDC), [2004] O.J. No. 1655, the Commission is required in an appeal such as this one, to ask itself whether the determination made by the Hearing Officer either reveals a manifest error on the part of the Hearing Officer, or whether the conclusions reached are unreasonable and cannot be supported by the evidence. In this regard, Mr. Parisé submitted that the concept of unreasonableness must be construed in accordance with the Supreme Court of Canada's definition as meaning "not being supported by any reasons that can bear somewhat probing examination". On this basis, Mr. Parisé invited us to conclude that the decision was sound in principle, the Hearing Officer having properly referred to the applicable case law and accurately applied the legal tests to the evidence.
With respect to the issue of credibility, Mr. Parisé argued that the Hearing Officer's decision reveals that he did not simply rely on the witnesses' demeanour to arrive at his conclusions. In support of his argument, Mr. Parisé drew our attention to the standard form of instruction to a jury with respect to credibility which Justice Reed articulated in the Pitts decision, which highlights such factors as how to deal with innocent misrecollection, poor or faulty memory, shifty and evasive behaviour, powers of perception, interest in the outcome of the litigation and the probability or improbability of a witness' story.
In short, it was Mr. Parisé's contention that in this case, no manifest error was committed by the Hearing Officer and that the record contains ample evidence to support the findings of guilt. Accordingly, the Respondent asked that the Appeal be dismissed.
In support of his position the Respondent cited: Toronto (City) Police Service v. Blowes-Aybar, Williams and Ontario Provincial Police, Pacitto and Toronto Police Service, Lewin and Toronto Police Service (2001), 3 O.P.R. 1472 (O.C.C.P.S.), Grainer and Ontario Provincial Police (May 29, 2005, O.C.C.P.S) and Armstrong and Peel Regional Police Service (April 4, 2002, O.C.C.P.S.).
Decision:
Section 2(1)(xi) of the Code makes it a disciplinary offence for a police officer to act "in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation" of a police service.
There is little doubt that in our society, behaviour of a sexual nature, when engaged in by a police officer toward a member of the public, would be considered to fall at the serious end of the spectrum of misconduct.
Further, while the events which form the basis of this case occurred while Constable Carriere was either not on duty or, with respect to Count Number 3, before he became a police officer, they are nevertheless occurrences which would, if established on clear and convincing evidence, be "prejudicial to discipline or likely to bring discredit upon the reputation" of a police service.
The "off duty" aspect of the occurrences, and the fact that Constable Carriere was not a police officer at the time of Count Number 3, were not raised as factors tending to negate or diminish the seriousness of Constable Carriere's alleged behaviour. Further, it was conceded by the Appellant that it would not be necessary to consider varying the penalty imposed by the Hearing Officer if the finding of guilt was upheld with respect to Count Number 3.
Cases involving alleged conduct of a sexual nature often turn on credibility. This is a reality that the Hearing Officer was required to grapple with in this case. As the Appellant has correctly highlighted, assessing credibility is not simply a matter of attempting to gauge the appearance of sincerity and the demeanor of individual witnesses.
As this Commission has noted on many occasions, the task of assessing credibility has perhaps been best summarized by Mr. Justice O'Halloran in Faryna v. Chorny at page 3:
On reflection it becomes axiomatic that the appearance of telling the truth is but one of the elements that enters into the credibility of the evidence of a witness. Opportunity for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen or heard, as well as other factors is combined to produce what is called credibility … in short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize in that place and in those conditions.
Making determinations of credibility is the role of the Hearing Officer. In contrast, the role of the Commission hearing an appeal on the record is different. As articulated in Pacitto and Toronto Police Service at page 5:
It is not the role of the Commission to make decisions of credibility solely on the basis of the record not having the opportunity to see or hear the witnesses. This clearly is the role of the trier of fact. If however, the trier of fact misapprehends the evidence, reaches a decision that is void of evidentiary fact or makes a clear error at law, then this Commission has the power to vary, confirm, revoke or substitute our own decision.
This Commission has consistently adopted a uniform and consistent standard with respect to its review of Hearing Officers' decisions on appeal. As stated 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 for 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 that the conclusions of the Adjudicator, as to the credibility of witnesses, cannot be reasonably accepted.
The question then to be asked in this case is, are the conclusions of the Adjudicator void of evidentiary foundation?
We have carefully read and listened to the submissions made on behalf of the Appellant by Mr. Waltenbury to the effect that this case is one of the limited number of cases which would warrant the Commission's intervention.
We agree with the submissions of the Appellant that if a decision hinges on the credibility of testimony, then the trier of fact must set out cogent reasons for believing or disbelieving the testimony. Nevertheless, we are not satisfied in this case, on any of the three grounds of appeal as argued by the Appellant, that the Hearing Officer's decision reveals a failure in that regard and consequently we ought to set aside the findings of guilt made by the Hearing Officer.
From a review of the transcript, it is clear that the Hearing Officer was confronted with a number of factual disputes going to the core of the allegations in this case. We are further satisfied that although the Hearing Officer may not have specifically highlighted or analyzed the discrepancies in his summary of the evidence, as he did the factors which impacted on his determination of credibility between Constable Carriere and the complainants, these factual discrepancies were nevertheless factored into his analysis.
The first part of the decision sets out, in great detail, the facts, as they were presented by the witnesses and challenged through cross-examination. The Hearing Officer cannot be said to have misapprehended them through omission and indeed, the accuracy of his fact summary was not questioned by the Appellant. While it is unfortunate that a significant part of the Hearing Officer's analysis focused on credibility and a discussion of the witnesses' demeanor, we are not convinced that having framed the issue in terms of a "contest" was fatal to his assessment. In fact, we agree with the Respondent that stating the issue in such terms was simply an acknowledgment by the Hearing Officer that he faced a credibility issue because of discrepancies in the evidence, which the Hearing Officer had noted and recognized were at the core of the allegations.
The summary of the evidence contained in the decision reveals that the Hearing Officer was keenly aware of the inconsistencies and the possible unreliability of the complainants' evidence, which would then require him to engage in an assessment of the parties' credibility. This awareness suggests that he did not limit his analysis to an assessment of the demeanour of the complainants on the one hand and Constable Carriere on the other. For instance, the Hearing Officer was aware and took note of the following potential inconsistencies or indicators of unreliability:
With respect to the incident involving R
- The evidence given by Constable Carriere that he did not masturbate in R's presence versus R's evidence that although she had her back turned to him during the alleged incident, she heard the sound of his zipper being unzipped; and
- The fact that R did not discuss the incident with her cousin, Constable Carriere's spouse, after the incident and only raised it with S after the breakdown of Constable Carriere's marriage.
With respect to the incident involving S
- The discrepancy between the telephone records and S's recollection regarding the calls and her discussions with her mother;
- The fact that S was distraught at the time of the incident because of her son's ill health; and
- The fact that S did not advise Constable Carriere's spouse of the incident at the time it occurred.
With respect to the incident involving L
- The fact that despite her difficult relationship with Constable Carriere, L did not move back in with her parents before putting an end to her relationship with Constable Carriere;
- The complainant's inability to pinpoint with accuracy the specific date and location of the camping trip on which the incident allegedly occurred; and
- The fact that L could not remember with respect to the assault how Constable Carriere had removed his clothing and that she could not recall seeing any ejaculate anywhere notwithstanding her claim that she had been sexually assaulted.
In our view, these "issues" regarding the evidence of the complainants, of which the Hearing Officer was aware, were not in any event consequential to his determinations on the charges made against Constable Carriere.
We are prepared to acknowledge that the Hearing Officer may in some respects not have expressed himself as well as he might. For instance, his statement that R was in a "committed relationship" as opposed to simply having a boyfriend, his conclusion that Constable Carriere felt "empowered to engage in sexually explicit conversations with R, his reliance on S's ability to demonstrate an erection or, for instance, his reference to Constable Carriere's "smirk" during the presentation of his evidence are reflective of this fact.
Nevertheless, taking into account that the Hearing Officer is a lay tribunal without formal legal training, we do not feel that they are fatal to the issue of whether the various incidents at issue occurred as alleged by the complainants. In that regard, we are in fact mindful of the Appellant's own evidence with respect to Count Number 1, pursuant to which he admitted, in cross-examination, having had a discussion with R regarding masturbation and her interest in witnessing the Appellant engaging in such an activity.
We note further, that with respect to Count Number 2, the Appellant admitted there was a reference during the incident, to his interaction with S being akin to a "sort of sexual experience" although he was not sure who had uttered those words. These facts assessed in their totality can very well in our view justify a concern in the Hearing Officer's mind as to the overall truthfulness of Constable Carriere's version of events given that they did not accord with the complainants'.
In respect of Count Number 3, although Constable Carriere denied the allegation of sexual assault, the evidence confirms that he did not have as clear a recollection of the camping trip at which the alleged assault took place as did the complainant. This was an evidentiary fact that the Hearing Officer was entitled to rely on. It was also legitimate for the Hearing Officer to consider whether L had anything to gain from the complaint process in the face of the major discrepancies in the evidence between the complainant on the one hand and Constable Carriere on the other. Accordingly, there is nothing in the decision with respect to Count Number 3 that amounts to an error or is so manifestly inaccurate that it would warrant our intervention.
To conclude, while it is unfortunate that the Hearing Officer chose to describe the conflict of the evidence as boiling down to a contest of credibility between the Appellant and the various complainants and therefore focused on an assessment of credibility to arrive at his conclusions, we are convinced on the basis of the summary which is contained in his lengthy decision, and his awareness of the required burden of proof (clear and convincing evidence), that the Hearing Officer's decisions were reasonable in light of the evidence, taken as a whole, and as it related to the essential areas surrounding the three events in question. We find that there was an evidentiary foundation before the Hearing Officer justifying the findings of discreditable conduct against Constable Carriere. We, therefore, dismiss the appeal against the convictions.
This then brings us to the question of penalty. On the basis of the Appellant's position articulated at the hearing and in writing, and on account of our findings with respect to the Hearing Officer's determination of guilt on Count Number 3, there is no need for this Panel to address the issue of penalty.
DATED AT TORONTO THIS 27TH DAY OF FEBRUARY, 2007.
Noëlle Caloren Member, OCCPS
Hyacinthe Miller Member, OCCPS
Garth Goodhew Member, OCCPS