Batista v. Smith and Ottawa Police Service, 2007 CanLII 87226

OCCPS #07-06

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Batista v. Smith and Ottawa Police Service, 2007 ONCPC 6

REASONS FOR DECISION

CONSTABLE PAULO BATISTA Appellant/Respondent

PAUL SMITH Respondent/Appellant

OTTAWA POLICE SERVICE Respondent

Presiding Member: Garth Goodhew, Member

Appearances: Allan R. O'Brien, Counsel for Constable Batista Matthew T. McGarvey, Counsel for Paul Smith Lynda A. Bordeleau, Counsel for Ottawa Police Service

Hearing Date: February 22, 2007

Constable Batista is appealing his conviction for unnecessary exercise of authority (i.e. unnecessary force) contrary to section 2(1)(g)(ii) of the Code of Conduct found at O. Reg. 129/98 (the “Code”) by Superintendent (retired) R.J. Fitches (the "Hearing Officer") on November 9, 2005.

Mr. Paul Smith is also appealing the penalty of a reprimand assessed against Constable

Batista by the Hearing Officer on March 16, 2006.

Background:

On May 29, 2003 Mr. Paul Smith was participating in a demonstration in Ottawa. Mr. Smith, who admits to being a frequent participant in public protests, is trained in non- violent civil disobedience techniques.

A large number of R.C.M.P. and Ottawa Police Service (the “Service”) officers were on duty monitoring the demonstration. R.C.M.P. Constable Messier recognized Mr. Smith and mistakenly believed that he was in violation of a bail condition imposed following a previous demonstration.

Constable Messier, assisted by Constable Jordan of the Service, arrested Mr. Smith. He was placed in handcuffs. Initially Mr. Smith followed the officers' instructions and walked ten to fifteen feet towards a police cruiser. He then changed tactics. He went limp and fell to the ground and refused to cooperate.

Constable Jordan called for a Taser and Constable Batista (then Acting Sergeant) responded. Mr. Smith spoke words to the effect “Yeah, get a Taser you fucking cops” and yelled to the crowd. Constable Batista tasered him. Mr. Smith was then dragged fifty to sixty feet by officers towards a cruiser. He was tasered a second time by Constable Batista immediately prior to being placed in the rear seat.

Mr. Smith was removed from the scene. He was later released from custody, without any charges being laid.

On November 23, 2003 Mr. Smith brought public complaints against Constables Batista and Jordan alleging misconduct on the part of both officers. These complaints eventually resulted in a direction on September 22, 2004 by this Commission that a disciplinary hearing be held.

The Hearing:

That hearing commenced on April 25, 2005. There were four days of proceeding that month and five in September. The Hearing Officer heard from thirteen witnesses and received twenty-six exhibits.

The witnesses included officers who were present at the demonstration; experts in the use of force and crowd control; and Constables Batista, Jordan and Mr. Smith. The Hearing Officer also viewed a videotape of the demonstration made by R.C.M.P. Constable Cindy Nault.

Central to the hearing was the Service’s Standard Operating Procedure (the “Procedure”) relating to Conducted Energy Weapons or Tasers. Page 1 of the Procedure described a Taser as “a hand-held electronic immobilization system, specifically designed to control a violent and/or aggressive subject". Page 2 further stated that the Taser may be used “on those subjects that an officer has reasonable and probable grounds to believe is a danger to themselves and/or members of the public, and needs to be immediately controlled; or the officer believes will be, or has been, resistive, actively aggressive/assaultive towards police or members of the public, or poses a threat of serious bodily harm or death to the officer or members of the public."

The Hearing Officer identified the major question before him as: "Does Mr. Smith's behaviour, at the time he was tasered, amount to active resistance; or did Acting Sergeant Batista and/or Constable Jordan have reason to believe that he had been actively resistant or that he was likely to become actively resistant?"

The Hearing Officer was presented with conflicting testimony on this point. He ultimately accepted the evidence of Constable Messier that Mr. Smith was not physically aggressive but merely uncooperative, loud and "a bit pushy”. As well, Constables Rukavina and Burnett testified that Mr. Smith did not exhibit any significant body movement while on the ground and both described him as being passively resistant. The Hearing Officer concluded that the evidence of these officers combined with the videotape did not support the testimony of Constables Jordan and Batista that Mr. Smith was actively resistant or in the case of Constable Batista that Mr. Smith had the ability to incite the crowd to riot.

The Hearing Officer noted that Constable Batista became involved only after Mr. Smith had been arrested, handcuffed and was lying on the pavement. He expressed the view that the Procedure appears to indicate that a Taser is not to be used on a subject who is handcuffed. The Hearing Officer further stated that the Procedure seems to indicate that a Taser is intended to permit an officer to gain control of a person who is aggressive or threatening or who otherwise cannot be controlled. He concluded that in this case the Taser was used as a convenient method to get Mr. Smith up and moving to the cruiser.

The Hearing Officer observed the importance of “impact and situational factors” on use of force decision-making. In particular, he noted the evidence of expert witness Mr. Summerville that the characteristics of a crowd or an "event within an event” such as the arrest of Mr. Smith during the demonstration can profoundly affect an officer's decision making. The Hearing Officer concluded that the crowd at the time in question was not violent, angry or aggressive and there were a sufficient number of police officers to maintain control of the situation. He further found that the handcuffed Smith, lying more or less motionless on the ground, surrounded by officers did not constitute an imminent danger or threat.

In reaching his conclusion on the question of whether these actions represented “unnecessary force”, the Hearing Officer relied on a number of authorities. In particular, he noted Burgess and St. Thomas Police Service (1989), O.P.R. 822 (O.P.C.). At pages

826 to 827 of that decision the Commission described the word "unnecessary" as follows:

The word “unnecessary” as used in the section in question might mean "not absolutely essential" or it might mean "unreasonable under the circumstances". … We find that the word “unnecessary” as used in the section, does not mean "not absolutely essential” but rather means something closer to "unreasonable under the circumstances" considering other options that were in fact available.

The Hearing Officer also referred to other precedents to emphasize the importance of examining the totality of the circumstances faced by an officer when trying to determine whether his or her actions were reasonable.

The Hearing Officer concluded that Constable Jordan's request that a Taser be brought forward did not constitute an unnecessary exercise of authority but rather was a prudent step in case the situation deteriorated. Accordingly, he found Constable Jordan not guilty of unnecessary exercise of authority.

The Hearing Officer concluded however, that the evidence and circumstances convinced him that the level of force used by Constable Batista against Mr. Smith was unnecessary and/or unreasonable. Accordingly, Constable Batista was found guilty of unnecessary exercise of authority.

The Hearing Officer reconvened the hearing on March 1, 2006 to deal with penalty. He heard the testimony of six character witnesses. Five of these individuals were either sergeants or staff sergeants. He also received a copy of Constable Batista’s curriculum vitae, various letters of reference and oral submissions. The Hearing Officer released his penalty decision on March 16, 2006.

The Hearing Officer stated that he found that Constable Batista did not use the Taser in a gratuitous manner or with the intention of hurting Mr. Smith. Rather, the Hearing Officer concluded that Constable Batista’s use of the Taser was inappropriate, based on a flawed decision, constituted an error of judgment and was the “wrong method in the circumstances”.

The Hearing Officer noted the evidence before him that Constable Batista was an outstanding police officer with an excellent reputation with his co-workers. This included a discipline free employment history. The Hearing Officer found that it was obvious that Constable Batista was a solid, highly qualified police officer who could continue to provide a high level of service to his community.

The Hearing Officer observed that one of the key objectives of the police discipline process is the protection of the public. Other considerations included the seriousness of the misconduct, consistency of penalty and the impact on Batista and his family.

Regarding this latter consideration he noted that one consequence of the finding of guilt in this matter was that Acting Sergeant Batista reverted to the rank of constable with the resulting loss of pay of approximately $10,000.00. The Hearing Officer viewed this as proof that the Service took the misconduct of the officer seriously. The Hearing Officer also considered the damage to the reputation of the Service and the effect of negative publicity caused by Constable Batista's actions.

The Hearing Officer stated that he did not have to consider either specific or general deterrence when determining penalty. He noted that Constable Batista's actions were an error for which he had suffered obvious consequences. Further, with respect to general deterrence the Hearing Officer opined that when an honest mistake is made, deterrence does not become an issue.

Given the above, the Hearing Officer assessed a penalty of reprimand.

Appeal of Conviction

Appellant's (Constable Batista) Position:

Constable Batista is appealing his conviction.

Mr. O’Brien, on his behalf, drew to our attention the standard of review to be applied when considering appeals against conviction. Penner and Parker and Niagara Regional Police Service (22 April 22, 2005, O.C.C.P.S.)

Mr. O’Brien argued the Hearing Officer in this case made manifest errors, by, in turn, ignoring a relevant factor and then considering irrelevant matters.

Specifically, Mr. O’Brien noted that the Procedure permits an officer to apply a Taser when “the officer believes the subject will be, or has been resistive”. He asserted that the Procedure does not require this belief to be reasonable.

Mr. O’Brien argued that the Hearing Officer specifically refused to determine whether or not Mr. Smith had been resistive prior to Constable Batista’s decision to use the Taser. Further, even though the Hearing Officer had concluded that Mr. Smith had been actively resistant at an early stage of the incident he did not apply this to the eventual finding of guilt.

Mr. O’Brien further asserted that the Hearing Officer considered irrelevant information in the course of making his decision. In particular, at page 10 of his decision, he stated: "As was seen in the video tape, it was possible and it in fact happened that Mr. Smith was carried or dragged from his place on the ground to the waiting police cruiser with very little difficulty. The application of the Taser, in fact, appears to have done little to alter Mr. Smith's conduct and may in fact have delayed getting Mr. Smith into the cruiser and out of the area."

Mr. O’Brien argued that the Hearing Officer had effectively concluded that the use of the Taser was unreasonable because it did not work. He asserted that the effectiveness of this decision is not a relevant consideration when determining whether an officer should be disciplined for unreasonable use of force.

For the above-noted reasons, Mr. O’Brien requests that the conviction registered against Constable Batista be quashed.

Respondents' (Mr. Smith and the Service) Positions:

Mr. McGarvey, on behalf of Mr. Smith, took issue with Constable Batista’s position.

He asserted that the Hearing Officer did not commit any error in law, properly considered all essential matters and did not take into account any irrelevant factors in

coming to the conclusion that Constable Batista had used excessive force in the circumstances.

Mr. McGarvey pointed out that Mr. Smith was innocent of any crime at the time of his arrest.

Mr. McGarvey disputed the contention that the Procedure does not import a standard of reasonableness to the question of a belief in prior resistance. He argued that if this is an accurate interpretation then any officer would be justified in using a Taser on a subject even when there was no prospect of future violence simply because an officer believes there has been previous active resistance. He noted that the Procedure is merely a tool or guide and not law.

In any event, Mr. McGarvey asserted that it was clear on the facts that Constable Batista had not witnessed Mr. Smith’s arrest, handcuffing or first efforts at passive resistance. Indeed, his first sight of Mr. Smith was lying on the ground handcuffed. Mr. McGarvey observed that the Hearing Officer had considered the impact Mr. Smith’s resistance on Constable Messier. However, he properly concluded that its remoteness from the subsequent decision of Constable Batista to Taser Mr. Smith rendered it largely irrelevant. As such, Constable Batista had no rational foundations for his actions.

Further, neither of the officers carrying Mr. Smith to the cruiser noted any resistance, violence or aggression.

In particular, Mr. McGarvey identified the second application of the Taser as a clear example of excessive use of force. He observed that no one had asked Constable Batista to use it a second time and the Hearing Officer properly concluded that the only reason that the Taser was used was as an easy way to get Mr. Smith into the police car.

Mr. McGarvey also disputed the assertion that the Hearing Officer found guilt merely because the deployment of the Taser was ineffective. Rather, he asserted that the Hearing Officer found guilt because there was no reason justifying its deployment.

Based on the above, Counsel for Mr. Smith requested that the appeal of Constable

Batista against conviction be dismissed.

The position of the Service was that the Commission should not interfere with the findings of a Hearing Officer except in extraordinary circumstances. A Hearing Officer's decision should not be overturned unless it cannot be supported on the evidence. Further, the evidentiary findings and findings of credibility of the Hearing Officer should be accorded considerable deference.

On these points, Ms. Bordeleau drew our attention to Williams and the Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), Toronto (City) Police Service v. Blowes-Aybar [2004] O.J. No. 1665 (Div Ct.) and Armstrong v. Peel (Regional Municipality) Police Service 2003 CanLII 37924 (ON SCDC), [2003] O.J. No. 3437 (Div. Ct.).

In responding to the Appellant's argument that the Hearing Officer committed a manifest error by not giving suitable consideration to the phrase "or has been resistive” Ms. Bordeleau asserted that:

(1) The Hearing Officer's reasons should be read as a whole, not word for word or phrase by phrase. It is only necessary that the reasons as a whole support the Hearing Officer's decision, not that every phrase extracted separately can be justified;

(2) The reasoning of the Hearing Officer should not be subject to microscopic examination. A reviewing body should not seize upon a few misstated words to undermine the hearing officer's reasoning; and

(3) It is not necessary that a finder of fact refer to every piece of evidence put before him or her. It is only necessary that the finder of fact give a proper overview of the evidence and relate findings to that evidence.

On the first two points she cited Law Society of New Brunswick v. Ryan [2003] 1 S.C.R.

247 (S.C.C.), Voice Construction Ltd v. Construction & General Workers' Union, Local 92 2004 SCC 23, [2004] 1 S.C.R. 609 (S.C.C.), Zellers Ltd. v. Royal Cobourg Centres Ltd., [2001] O.J. No. 3792 (Div. Ct.), Galassi v. Hamilton (City) Police Service [2005] O.J. No. 2301 (Div. Ct.), Boulis v. Canada (Minister of Manpower and Immigration) 1972 CanLII 4 (SCC), [1974] S.C.R. 875 (S.C.C.), Re Del Core and the Ontario College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 51 O. R. (2d) 1 (Ont. C.A.) and Storey v. Ontario (Director, Disability Support Programs) [2002] O.J. No.

1669 (Div. Ct.).

On the third point she drew our attention to Woolaston v. Canada (Minister of Manpower and Immigration) 1972 CanLII 3 (SCC), [1973] S. C. R. 102 (S.C.C.), Trotter v. College of Nurses of Ontario [1991] O.J. No. 348 (Div. Ct.), Ressel v. College of Chiropractors of Ontario [2003] O.J. No.3032 (Div. Ct.) and McEachran v. Ontario (Labour Relations Board) [2005] O.J. No.

465 9 (Div. Ct.).

Ms. Bordeleau rejected the assertion that the Hearing Officer ignored a relevant factor. She argued that the Hearing Officer, after considering the testimony of Constable Messier, concluded that Smith's initial resistance was minimal and, even though he was not co-operative, he had not become violent or aggressive. Ms. Bordeleau also asserted that the Hearing Officer properly found that in the circumstances it would be unreasonable to conclude that Mr. Smith's resistance was continuing or likely to resume.

Ms. Bordeleau also rejected the claim by the Appellant that the Hearing Officer considered irrelevant information. The Appellant's assertion was that the Hearing Officer concluded that the use of the Taser was unreasonable because it did not work. Ms. Bordeleau characterized this as an example of taking an extract out of context and subjecting it to microscopic scrutiny. She noted that the Hearing Officer found that the

use of the Taser was unreasonable because of the positioning of Mr. Smith, the fact that he was handcuffed and because there was no indication of violent or aggressive behaviour.

In conclusion, Ms. Bordeleau argued that the Hearing Officer properly reviewed all of the evidence before him, made no error in arriving at the conclusion that the Appellant was guilty and that this decision was reasonable and should not be disturbed.

Appeal of Penalty

Appellant's (Mr. Smith) Position:

Mr. McGarvey, on behalf of Mr. Smith, argued that the Hearing Officer erred by imposing a penalty of reprimand on Constable Batista.

He asserted that the lightest possible penalty for an act of unjustified violence with a weapon was a manifestly unfit disposition.

In particular, Mr. McGarvey argued that the Hearing Officer committed a reviewable error by failing to give consideration to a number of serious aggravating factors. These included the injuries suffered by Mr. Smith because of the use of the Taser and Constable Batista’s defiant attitude and sense of persecution.

Mr. McGarvey observed that Constable Batista essentially, has assumed no responsibility for his actions that caused injuries that required months of recovery. Rather, Constable Batista placed all accountability on Mr. Smith. i.e. Mr. Smith gave him “no option”.

Mr. McGarvey contended that Batista's defiant attitude and his refusal to accept responsibility spoke negatively to his ability to be reformed or rehabilitated.

Mr. McGarvey also submitted that the Hearing Officer committed a reviewable error by suggesting that the misconduct in question took the form of errors in judgment and as such was not subject to the principles of deterrence. He noted that many crimes, such as dangerous driving and criminal negligence, do not require intentional misconduct but are still subject to the application of the principles of both general and specific deterrence.

On this point Mr. McGarvey drew our attention to Kenkel, “Impaired Driving in Canada” (Butterworths, 2006) at p. 18 and R. v. Biancofiore (1997), 1997 CanLII 3420 (ON CA), 119 C.C.C. (3rd) 344 (Ont. C.A.).

Mr. McGarvey argued that a proper penalty for inappropriate use of force because of misjudgment would be forfeiture of leave time. Kerr and Metropolitan Toronto Police Service (1981), 2 O.P.R. 508 (O.P.C.).

Respondents' (Constable Batista and the Service) Positions:

Constable Batista, as Respondent, takes issue with arguments presented on behalf of

Mr. Smith on the question of penalty.

Mr. O’Brien argued that the standard of review in appeals with respect to penalty requires great deference on the part of the Commission. Allen and Ottawa Police Service (7 June, 2006, O.C.C.P.S.) and Carson and Pembroke Police Service (9 March,

2006, O.C.C.P.S.)

He argued that the Hearing Officer expressly identified and properly considered the applicable dispositional considerations. Krug and Ottawa Police Service (21 January,

2003, O.C.C.P.S.)

Mr. O’Brien acknowledged that there is a recognized practice of imposing greater penalties to reflect the need for general deterrence in drinking and driving cases. However, he asserted that this was necessary to promote adherence to particular Service policies. He argued that there was no such policy in place in this case that would warrant additional weight being given to deterrent considerations. Stanford and Ontario Provincial Police (2000), 3 O.P.R. 1402 (O.C.C.P.S.)

Mr. O’Brien also takes issue with the assertion that the Hearing Officer erred by failing to take into account the impact of the use of the Taser on Mr. Smith. He argued that the Hearing Officer did address this when he assessed the nature and seriousness of the misconduct and that Mr. Smith was in effect, asking the Commission to re-evaluate the Hearing Officer's assessment and "second guess" him on this point.

As well, he asserted that the officer should not be penalized for exercising his right to full answer and defence. Carson and Pembroke Police Service (2001), 3 O.P.R. 1479 (O.C.C.P.S.)

For these reasons, Mr. O’Brien requested that Mr. Smith's appeal with respect to penalty be dismissed. Ms. Bordeleau, on behalf of the Service, urged the same result.

She identifies two issues:

(1) What is the role of the Commission on an appeal of a penalty?

(2) Did the Hearing Officer commit a manifest error in determining that the penalty of reprimand was appropriate for Constable Batista?

On the first point, she noted that the Commission should not lightly interfere with a penalty assessed by a Hearing Officer and only intervene if there is a manifest error in principle even if it would have come to a different conclusion had it been hearing the matter in the first instance.

In support of this position she referred to Quintieri and Toronto Police Service (2001), 3

O.P.R. 1509 (O.C.C.P.S.), Lewin and Toronto Police Service (2001), 3 O.P.R. 1471 (O.C.C.P.S.), Allen and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.) and Groot and Peel Regional Police Service (2002), 3 O.P.R. 1552 (O.C.C.P.S.).

Ms. Bordeleau identified the factors to be taken into account by a Hearing Officer when assessing penalty. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) and Reilly and the Brockville Police Service (1997) 3 O.P.R. 1163 (O.C.C.P.S.)

She asserted that the Hearing Officer did a careful analysis of appropriate factors including the public interest the seriousness of the misconduct, the officer's employment history, the effect on the officer and his family, consistency, specific and general deterrence, the employer's approach to the misconduct, the damage to the reputation of the police force and the effect of publicity.

She concluded by stating that the penalty imposed by the Hearing Officer should remain undisturbed.

Decision:

The role of the Commission in appeals against conviction is well articulated. Often quoted authorities such as Williams and Ontario Provincial Police have clearly established that the Commission should only intervene if the Hearing Officer has made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence or drawn erroneous conclusions from it. Our role or function in such matters is not to second-guess the decision of a hearing officer

Matters of witness credibility and findings of fact are within the Hearing Officer's domain. 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 reasonably be accepted.

The facts of this case are not complex. Constable Batista was charged with the disciplinary offence of unnecessary exercise of authority. Section 2(1)(g)(ii) of the Code deems it to be misconduct when an officer “uses any unnecessary force against a prisoner or other person contacted in the execution of duty”. The specific allegation against Constable Batista was that “on May 29, 2003, during the arrest of Paul Smith, you applied unnecessary force by using a taser on Mr. Smith”.

There is no doubt that Constable Batista was on duty on May 29, 2003. There is no doubt that Mr. Smith was arrested by Constables Messier and Jordan and placed in handcuffs and was therefore a prisoner. Further, there is not doubt that Constable Batista tasered Mr. Smith on at least two occasions.

The essential question for the Hearing Officer was whether or not this use of force was unnecessary or in the words of Burgess and St. Thomas Police Service “unreasonable under the circumstances”.

In making this determination the Hearing Officer received a great deal of evidence over the course of four days. This included copies of the relevant Service policies, the evidence of experts on use of force and crowd control, the testimony of Mr. Smith, Constable Batista and other officers who were present during the events in question.

Also, somewhat unusually, the Hearing Officer had a video recording taken by an R.C.M.P. officer that captured much of the actions that were the subject of the hearing. In his decision, he noted that: “The clarity of the information on the tape is, to some degree, adversely affected by the crowd of officers milling about or stationed between the camera and Mr. Smith while he is on the ground prior to being taken to the police car. There is sufficient information on the tape, however, for me to make an assessment of Mr. Smith’s conduct and behaviour, as well as make an assessment of the context of events; in particular the size and nature of the crowd that was present, as well as the police presence in the immediate area”.

The Hearing Officer identified the relevant Service policy that mandates that a Taser can only be used "on those subjects that an officer has reasonable and probable grounds to believe is a danger to themselves and/or members of the public, and who needs to be immediately controlled; or the officer believes the subject will be, or has been resistive, actively aggressive/assaultive toward the police or members of the public or poses a threat of serious bodily harm or death ... "

In assessing that policy against what he observed on the video recording, the Hearing

Officer stated:

Acting Sergeant Batista arrived at Mr. Smith’s location sometime after Mr. Smith began yelling loudly about the TASER. Mr. Smith is depicted quite clearly on the videotape at this time. Try as I might while viewing this tape during this time frame, I was unable to see anything that Acting Sergeant Batista could possibly have taken as active resistance. There is virtually no movement visible and the only action that Mr. Smith was involved in was yelling and using course language. This does not, based on what I have heard from the experts, Mr. Chris Lawrence and Mr. Steven Summerville, amount to active resistance.

This conclusion was supported by the testimony of both Constables Rukavina and

Burnett.

It was open to the Hearing Officer to accept this evidence on the question of ‘active resistance’ over that of Constables Batista and Jordan. Matters of credibility and the finding of fact are within the Hearing Officer's domain. In this case the Hearing Officer

not only had the benefit of observing the demeanor of these witnesses, but also the video recording that captured both their relative positions and actual conduct.

As well, the fact that Mr. Smith may not have cooperated with his initial arrest (which was based on grounds which were wrong and occurred when Constable Batista was not present) did not give rise to an excuse to taser him, at a later point in time, when he was lying motionless on the street.

On the question of potential to ‘incite a riot’ the Hearing Officer noted:

In general, the crowd that was seen on the video was far from enormous. I saw no overt signs of violence or threat of violence from the crowd and the number of police officers in the immediate area appeared to be equal or somewhat greater than the crowd itself.

The picture of Mr. Smith laying on the roadway, in handcuffs, more or less motionless, with a large number of uniformed police officers in close proximity to him does not create for me a sense of present or imminent danger or threat. Rather, it paints a picture of a situation what was, for the most part, very much under control.

This is a reasonable conclusion that was clearly open to the Hearing Officer.

Further, a passing observation that this unnecessary use of force was not effective cannot be said to create a reviewable error (i.e. “appears to have done little to alter Mr. Smith’s conduct”).

Given, the above, it cannot be said that such a conclusion was without evidentiary foundation. It was certainly open to the Hearing Officer to find that tasering Mr. Smith twice was both unnecessary and unreasonable under the circumstances. Accordingly the appeal against conviction is dismissed.

This brings me to the question of penalty. Mr. Smith is appealing the sanction assessed against Constable Batista, i.e. a reprimand.

It is a long established principle that the Commission should not lightly interfere with a penalty assessed by a hearing officer. The Commission should only intervene if there was a manifest error in principle or if relevant factors are ignored.

There are three main elements to be taken into account in assessing the appropriateness of a penalty - 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 if the officer remained on the force. Other factors which can be relevant include employment history and experience, recognition of the seriousness of the misconduct and a handicap or other circumstance such as provocation, the need for deterrence and concerns for management's approach to the misconduct in question.

In his penalty decision the Hearing Officer identified these factors. He stated that: “unnecessary exercise of authority is in and of itself a serious matter”. Further, given the evidence before him, the Hearing Officer was certainly aware of the impact of Constable Batista’s actions on Mr. Smith.

The Hearing Officer however, was also of the view that the seriousness of the conduct in question was mitigated somewhat by a “lack of malice” on Constable Batista’s part and the fact that his actions occurred “in the heat of the moment” and “were out of character”.

The Hearing officer noted Constable Batista’s excellent employment history and generally good reputation reflected in the testimony and letters offered on his behalf by both coworkers and supervisors. He properly noted the mitigating nature of such evidence. As well, he acknowledged the impact of the disciplinary action on both Constable Batista and his family.

To my mind the Hearing Officer’s comments on these matters were open to him on the evidence and both fair and proper.

On the question of consistency, the Hearing Officer noted the difficulty of comparing the facts of this case (which occurred over the course of a few seconds) with others that were brought to his attention. He accepted that the conduct had caused damage to the reputation of the Service

The Hearing Officer also stated that given that he felt that Constable Batista’s actions were an error or honest mistake that specific deterrence was not a factor. Further, he went on to observe that the obvious negative impacts of these events on Constable Batista “can and must act as a deterrence to others who find themselves in similar situations. But once again, when an honest mistake is made, deterrence does not, in my view, become an issue.”

On this later point, the Hearing Officer might have expressed himself better. Police officers are authorized by law, equipped and trained to use force. The improper use of force is conduct that must be deterred. That being said, I am not satisfied, taking the decision as a whole, that the resulting penalty was inappropriate and warrants variation.

This is not simply a case of the imposition of a reprimand (the lowest possible penalty) for unnecessary exercise of authority. As the Hearing Officer properly noted, as a consequence of his conviction on this disciplinary matter, Constable Batista forfeited his Acting Sergeant status. Effectively this constituted a demotion. This clearly has negatively affected his career. As well, it has had a significant monetary consequence. The combined loss of rank, salary and reprimand taken together represent a serious consequence that addresses any considerations that might arise with respect to general deterrence.

Finally, there is the matter of the penalty not reflecting Constable Batista’s ‘defiant attitude’ and ‘refusal to accept responsibility’. Constable Batista pled not guilty. He mounted a vigorous defence to the charge against him. He offered his explanation of what occurred and why.

All of these actions were his right. Constable Batista cannot be penalized for so doing. Rather, he is not entitled to any mitigation that flows from a guilty plea and clear acceptance of responsibility.

Given the above, I am satisfied that the penalty imposed properly took into account the relevant factors and did not display the level of error necessary to warrant the Commission’s intervention.

For the above noted reasons, the appeal with respect to penalty is dismissed.

DATED AT TORONTO THIS 8TH DAY OF MAY 2007.

Garth Goodhew

Member, OCCPS