Constable Michael Bryne v. Ontario Provincial Police, 2007 CanLII 89243

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED

BETWEEN:

Constable Michael Bryne

APPELLANT

-and-

Ontario Provincial Police

RESPONDENT

DECISION

Panel: Garth Goodhew, Member Murray W. Chitra, Chair

Hearing Date: October 30, 2007

Hearing Location:

Appearances:

Jonathan D. Cocker, Counsel for the Appellant

Marnie Bacher, Counsel for the Respondent

I. Introduction

1. This is an appeal from a conviction of one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at Ontario Regulation 123/98 as amended (the “Code”) by Superintendent (retired) Alan Griffiths (the “Hearing Officer”) on January 22, 2007.

2. Further it is an appeal from the penalty imposed on March 7, 2007. That penalty was forfeiture of two days or sixteen hours off.

II. Background

3. This is the third case before the Commission concerning Constable Michael Byrne and his off duty activities.

4. Constable Michael Byrne has been a member of the Ontario Provincial Police (“OPP”) for over nineteen years. In 2003-2004 he was assigned to the Wellington County Detachment at Mount Forest.

5. At that time, in addition to his policing duties, Constable Byrne owned and operated a small business known as MLSP Enterprises. Its primary activity was landscaping and snow removal.

6. In the Fall of 2003 Constable Byrne entered into an unwritten contract with Ms. Sandra Maas for snow removal from a property where she operated a hair salon in Mount Forrest.

7. It would appear that this arrangement did not work out. After speaking with Sergeant William Atchison and Sergeant Glenn Dietrich of the Mount Forrest Detachment Ms. Maas submitted a formal letter of complaint against Constable Byrne on September 21, 2007.

8. Sergeant Thomas MacLean of the Professional Standards Branch of the OPP was assigned to investigate the complaint. He was assisted by Sergeant Bruce Fearnall.

9. On January 18, 2005 Constable Byrne was charged with discreditable conduct. The Particulars of the Allegations contained in the Notice of Hearing were as follows:

During the winter of 2003-2004 you were hired to perform snow removal services for a member of the public pursuant to a snow removal business you operate. She felt intimidated in engaging your services. On or about August 28, 2004, while on duty in full uniform and operating an OPP cruiser, you approached a member of the public to accuse her of failing to pay money allegedly owed to you for snow removal. You also made a number of inappropriate comments to this person including calling her son a delinquent and asking if you could purchase her dying father’s boat.

Your inappropriate actions in relation to this conversation included but are not limited to:

• You inappropriately used your character and position as an Ontario Provincial Police officer for private advantage in attempting to collect monies allegedly owed to you through your secondary employment.
• Given the nature of your secondary employment and the circumstances of your police duties, you breached the secondary employment policy by failing to seek permission for your secondary employment in accordance with police orders.
• Making inappropriate comments to a member of the public.

You knew or reasonably ought to have known that your conduct was inappropriate.

The Hearing

10. Constable Byrne’s disciplinary hearing commenced on June 20, 2006. His Counsel brought a preliminary motion challenging the jurisdiction of the Hearing Officer to proceed.

11. The motion had two aspects. The first alleged that Constable Byrne had been denied procedural fairness. The second alleged an institutional bias on the part of the OPP in their investigation of various public complaints against Constable Byrne.

12. Counsel for Constable Byrne proposed to call his client to give oral evidence in support of the motion.

13. Counsel for the OPP asserted that the various complaints identified were the subject of either ongoing or pending disciplinary proceedings and not relevant. She asserted that the written material filed in support of the motion did not disclose any evidentiary foundation to support the allegations of unfairness or bias.

14. Further, she asserted that she had only been advised by opposing Counsel the day before of his intention to bring the motion. As well, she had not received notice that Constable Byrne was a proposed witness or been provided with an affidavit sworn by him in support of the motion.

15. The Hearing Officer denied the motion. However, he indicated that during the course of the disciplinary hearing Constable Byrne was entitled to lead any evidence that he might have relevant to the allegations in question and to bring further motions if necessary at the appropriate time.

16. The presentation of evidence commenced the following day. The disciplinary hearing was then adjourned and continued in September and October of 2006. In total the Prosecution called eight witnesses. They included Sergeant MacLean, Ms. Maas, Sergeant Atchison and Sergeant Dietrich. Seventeen exhibits were received.

17. The only witness called by the Defence was Constable Byrne. He testified over the course of three days in October and December of 2006. A further four exhibits were admitted.

18. One of these exhibits was presented by the Prosecutor during her cross-examination of Constable Byrne. It was a letter stating that a search of Constable Byrne’s personnel file had failed to disclose any written permission to undertake secondary employment.

19. Constable Byrne’s counsel objected to the introduction of this document and cross-examination on the matter of secondary employment. He asserted that the Prosecution had led no evidence during their case on the absence of such permission. He argued that to admit such at the conclusion of the defence would in effect be allowing the Prosecution to “split” their case. He asserted that this was unfair, prejudicial to Constable Byrne and a breach of natural justice.

20. The Hearing Officer admitted the document and allowed cross-examination on the question of secondary employment.

21. Constable Byrne testified that he had been involved in secondary employment since at least May 6, 1992 when he received permission to conduct a business relating to CPR/ First Aid. Constable Byrne provided a memorandum from the OPP Secondary Employment Committee providing such approval.

22. This letter indicated that the approval was subject to certain conditions:

(a) the occupation remains within the parameters set forth in his/her application dated April 27,1992;

(b) the member in no way uses his/her position as a police officer and/or as a member of the Ontario Provincial Police to influence his/her secondary occupation by way of advertising, promotion or in any other manner;

(c) no complaint regarding the secondary occupation is received.

23. The memorandum further stated: “If there is a change in item (a) or a breach of item (b); or a complaint is received concerning this employment, the member shall immediately cease all activity connected with the secondary occupation until the circumstances are reviewed by the Secondary Employment Committee.”

24. Constable Byrne testified that by 1998 the scope of his business activities had expanded beyond that for which he received approval in May of 1992. He stated that he had not formally sought approval for his expanded activities from the Secondary Employment Committee. Rather, he testified that he had advised his Staff Sergeant, John Rideout, of this change and that Staff Sergeant Rideout had “checked” and informed him that written approval was not required.

25. Following this testimony, both Defence Counsel and Prosecutor made formal submissions.

26. On January 22, 2007 the Hearing Officer released a nine page written decision. In it, he set out the allegations and described the evidence in some detail. He noted that there were inconsistencies in the testimony of the key Prosecution witnesses and that he had concerns about the quality of Ms. Maas’ evidence. He went on to conclude on two of the three allegations contained in the charge of discreditable conduct (i.e. inappropriate use of character and position for private advantage and inappropriate comments) that “the prosecution had not proved their case.”

27. The Hearing Officer then turned to the third allegation dealing with unauthorized secondary employment. He summarized the evidence on this allegation. Following a very brief analysis he found Constable Byrne guilty.

28. Penalty submissions were made by Counsel. The Prosecutor sought a forfeiture of sixteen hours. Defence Counsel proposed a reprimand.

29. The Hearing Officer issued his four-page penalty decision on March 7, 2007 imposing a forfeiture of sixteen hours.

Appellant’s Position

30. Mr. Cocker, on behalf of the Appellant, argued that the Hearing Officer denied Constable Byrne a full, fair and impartial hearing.

31. Specifically, he asserted that the Hearing Officer failed to provide Constable Byrne with procedural fairness and natural justice by not permitting him to call evidence in support of his preliminary motion on jurisdiction.

32. On this point he drew our attention to Baker v. Canada (Minister of Citizenship and Immigration) 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (S.C.C.), Statutory Powers Procedure Act R.S.O. 1990, c. S.22, section 10.1, Kane v. Board of Governors of the University of British Columbia 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105 (S.C.C.), United Food and Commercial Workers, Local 1252 v. Fish, Food and Allied Workers [1998] N.J. No. 272 (Nfld. S.C.), Bailey v. Saskatchewan Registered Nurses Association [1996] S.J. No. 312 (S.Q.B.), Bailey v. Saskatchewan Registered Nurses Association [1996] S.J. No. 653 (S.C.A.), Stone Container (Canada) Inc. v. International Union of Operating Engineers, Local 894 1997 CanLII 23230 (NB CA), [1997] N.B.J. No. 360 (N.B.C.A.), Fortis Properties Corp. v. United Steel Workers of America, Local 1-306 2006 NBQB 260, [2006] N.B.J. No. 335 (N.B.Q.B.) and Syndicat des employes professionals de l’Universite du Quebec a Trois-Rivieres c. Universite du Quebec a Trois-Rivieres 1993 CanLII 162 (SCC), [1993] 1 S.C.R. 471 (S.C.C.).

33. Mr. Cocker also argued that Constable Byrne had been denied procedural fairness and natural justice in that he did not know the full case against him prior to commencing his defence. Mr. Cocker asserted that the Prosecution failed to lead any evidence with respect to the question of secondary employment during its case and thus should not have been permitted by the Hearing Officer to raise the issue while the Defence was putting in its case.

34. In support of this argument Mr. Cocker noted Sabourin v. Canada (House of Commons) (2006), 2 P.S.L.R.B. 84 (C.P.S.L.R.B.), R. v. Reep (2005), B.C.P.C. 520, R. v. John [1995] 2 S.C.R. 476 (S.C.C.) and News Datacome Ltd. v. Love (2004), 2004 MBCA 98, 187 Man. R (2d) 171 (Man. C.A.).

35. Mr. Cocker further asserted that the Hearing Officer’s finding of guilt with respect to the secondary employment issue was not supported by any evidence. In particular, he noted that Constable Byrne had provided undisputed testimony that he had received approval from Sergeant John Rideout to change the nature of his secondary activities.

36. On the question of standard of review Mr. Cocker drew our attention to Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), Geske and Hamilton Police Service (April 2, 2003, O.C.C.P.S.), Bromfield and Hamilton Police Service (March 17, 2003, O.C.C.P.S.) and Cate and Peel Regional Police Service (2002), 3 O.P.R. 1604 (O.C.C.P.S.).

37. Finally, Mr. Cocker argued that the penalty imposed was unreasonable. He noted that Constable Byrne was found guilty of only one of three allegations against him of discreditable conduct. He pointed out that the subject matter of the complaint was essentially a civil dispute over a delay of payment for services rendered. Mr. Cocker asserted generally that off-duty misconduct attracts lower penalties. He also suggested that the fact that Constable Byrne was denied procedural fairness during the hearing was a mitigating factor.

38. On these arguments Mr. Cocker cited Burdett and Guelph Police Service (1999), 3 O.P.R. 1336 (O.C.C.P.S.), Silverman and Ontario Provincial Police (1997), 3 O.P.R. 1181 (O.C.C.P.S.), Morin and Ontario Provincial Police (1996), 3 O.P.R. 1113 (O.C.C.P.S.), Ceyssens, Paul, “Legal Aspects of Policing” (Carswell, Scarborough) at pages 5-197 to 5-198 and Walker and Belleville Police Service (1989), 2 O.P.R. 802 O.P.C.).

39. For these reasons Mr. Cocker argued that the conviction should be quashed or in the alternative the penalty reduced to a reprimand.

Respondent’s Position

40. Ms. Bacher, on behalf of the OPP, argued that Constable Byrne received a full, fair and impartial hearing and the conviction and penalty should stand.

41. Ms. Bacher asserted that a disciplinary hearing was not a civil or criminal proceeding requiring the same high level of natural justice. Rather, a Hearing Officer had discretion to establish flexible procedures and practices to suit the case before him or her.

42. On this point she noted Knight v. Indian Head School Division No. 19 (Saskatchewan Board of Education) 1990 CanLII 138 (SCC), [1990] S.C.J. No. 26 (S.C.C.), Therrien (Re) (2000), 2001 SCC 35, 155 C.C.C. (3rd) 1 (S.C.C.) and Baker v. Canada (Minister of Citizenship and Immigration) supra. She also drew our attention to section 69 of the Act and section 25.0.1(a) of the Statutory Powers Procedure Act.

43. Ms. Bacher argued that decisions of a preliminary nature, such as on a motion, are not subject to the same duty of fairness as final decisions. She asserted that Constable Byrne was not denied the opportunity to present relevant evidence. Rather, he was advised that he was not to do so in the context of a preliminary motion, but during the hearing itself.

44. Ms. Bacher argued that the opportunity to elicit such evidence during the course of the hearing met the requirements of both natural justice and procedural fairness. Tipple v. Canada (Treasury Board) [1985] F.C.J. No 818 (F.C.A.) and Ontario (Securities Commission) v. Biscotti [1988] O.J. No. 1115 (H.C.J).

45. Ms. Bacher asserted that question of secondary employment was a “live issue” before the Hearing Officer. She observed that it was included in the Notice of Hearing. Disclosure was provided. The Prosecution filed the relevant provisions of the Act and OPP Orders.

46. Given the above, Ms. Bacher argued that it was proper for the Hearing Officer to permit cross-examination of Constable Byrne on whether or not he had approval for his secondary snow removal business.

47. On the standard of review, Ms. Bacher drew our attention to Williams and Ontario Provincial Police supra., Cate and Peel Regional Police Service supra., and Bender and LeClair and Windsor Police Service (2000), 3 O.P.R. 1392 (O.C.C.P.S.).

48. She argued that there was an evidentiary foundation before the Hearing Officer that would properly permit him to conclude that Constable Byrne was guilty of discreditable conduct for unauthorized secondary employment. She drew our attention to certain portions of the evidence of Sergeant MacLean and Constable Byrne.

49. Ms. Bacher asserted that the penalty imposed by the Hearing Officer was reasonable.

50. She drew our attention to a number of cases that spoke to the standard of review in such matters. These included Carson and Pembroke Police Service (2001), 3 O.P.R. 1479 (O.C.C.P.S.), Lewin and Toronto Police Service (2001), 3 O.P.R. 1472 (O.C.C.P.S.), Armstrong v. Peel (Regional Municipality) Police Services 2003 CanLII 37924 (ON SCDC), [2003] O.J. No. 3437 (Div. Ct.), Galassi and Hamilton Police Service (August 19, 2003, O.C.C.P.S.) and Galassi v. Hamilton (City) Police Service [2005] O.J. No.2301 (Div. Ct.).

51. Ms. Bacher argued that the penalty imposed by the Hearing Officer is consistent with those imposed in similar cases.

52. On the latter point she cited Schram and Ontario Provincial Police (1987), 2 O.P.R. 781 (O.P.C.), Erkila and Ontario Provincial Police (1987), 2 O.P.R. 757 (O.P.C.), Dunn and Ontario Provincial Police (1987), 2 O.P.R. 756 (O.P.C.), Barnes and Ontario Provincial Police (1987), 2 O.P.R. 753 (O.P.C.) and Nose and Ontario Provincial Police (1990), 2 O.P.R. 867 (O.C.C.P.S.).

III. Decision

53. Constable Byrne appeals his finding of guilt and penalty for one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code. That provision 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.

54. The Commission’s role in appeals of disciplinary convictions is well understood. Our function is not to second-guess the decision of the adjudicator. It is not to make findings with respect to the credibility of witnesses.

55. Rather, our role is to determine whether or not the findings of the Hearing Officer are void of evidentiary foundation or cannot be reasonably accepted. Further, we may intervene where the reasoning of a hearing officer is evidently wrong, is based on an error in law or the hearing process reflects substantive breaches of procedural fairness or natural justice.

56. This appeal against conviction is based on two events. One arose just prior to the commencement of the hearing - the other just prior to its conclusion.

57. On the morning of the first day of the hearing, Counsel for Constable Byrne brought a preliminary motion challenging the jurisdiction of the Hearing Officer. He had notified the Prosecutor of his intention to do so in correspondence only the day before. That correspondence indicated that the basis for the motion was a letter with certain attachments dated May 25, 2006. They appear to have concerned duty reports that were requested of Constable Byrne in other complaint matters.

58. The thrust of the motion was an assertion that the OPP had treated Constable Byrne unfairly or had demonstrated institutional bias against him by engaging in a pattern of targeted investigations. Some of these investigations were the subject of either ongoing or pending disciplinary proceedings.

59. Defence Counsel advised the Hearing Officer that in addition to the letter of May 25, 2006 he wished to call Constable Byrne to give oral evidence in support of the motion. This was news to the Prosecutor. Further, no affidavit had been prepared by Constable Byrne in advance of his motion setting out the nature and scope of this proposed evidence.

60. As a practical matter, it would seem that the Hearing Officer had two options. The first would have been to grant an adjournment so as to ensure that the Prosecutor had proper notice and an opportunity to prepare a full response to the jurisdictional challenge. The second would have been to proceed with the hearing, subject to the right of Constable Byrne to bring his motion at a later point.

61. Essentially, the Hearing Officer adopted the second course. In the circumstances this strikes us as reasonable. We note that Counsel for Constable Byrne subsequently cross-examined Sergeant MacLean, the complaint investigator, on what instructions he may have received with respect to processing possible complaints concerning the Appellant.

62. As well, Constable Byrne testified on October 24, October 25 and December 13, 2006. It would appear that no questions were put to him in examination in chief with respect to matters arising from the May 26, 2006 letter. At no point was the motion renewed.

63. Given the above, it is not evident to us that Constable Byrne was denied procedural fairness or natural justice with respect to the first grounds of appeal.

64. The same cannot be said with respect to the second ground of appeal.

65. The Notice against Constable Byrne contained three allegations. The one that is of concern to us alleged that he “breached the secondary employment policy by failing to seek permission for … secondary employment in accordance with police orders”.

66. It was the responsibility of the Prosecutor to lead evidence to prove that this disciplinary offence had occurred. In her opening remarks the Prosecutor made no mention of the issue of secondary employment.

67. However, during the presentation of her case she tabled the OPP policy on secondary employment. That policy contained the relevant provision of the Act dealing with secondary employment. Sergeant MacLean also testified that he felt that all of the allegations against Constable Byrne were substantiated.

68. Unfortunately, this was the extent of the evidence offered by the Prosecutor concerning this allegation. A policy is not proof that a disciplinary offence has taken place and neither is a general opinion expressed by the investigator on whether allegations were substantiated.

69. In short, when the Prosecutor concluded her presentation, there was no case for the Defence to meet on the allegation concerning secondary employment.

70. At the conclusion of the disciplinary hearing on October 25, 2006 the Prosecutor concluded her cross-examination of Constable Byrne on the subject of invoices that he had given to Ms. Maas. She then raised “one last area of questioning” and challenged Constable Byrne on whether or not he had permission to conduct snow removal as secondary employment.

71. When he indicated that he did, the Prosecutor confronted Constable Byrne with a memorandum authored by Staff Sergeant Paul Bedard that read:

At the request of Ontario Provincial Police-Professional Standards Branch a check was completed on the Personnel file of Provincial Constable Michael BYRNE for permission to conduct secondary employment. The check was completed on 01Nov04 and no record of permission could be located.

72. The tabling of this document resulted in vigorous argument between Counsel.

73. The Hearing Officer ruled: “I’m reluctant to listen to new evidence at this point, but this is an inquiry, this is a tribunal, we are going by civil rather than criminal levels of issue, and I will with reservation, allow it in.”

74. Constable Byrne continued to insist that he had written approval. He undertook to produce it. The Hearing adjourned to December 13, 2006 when Constable Byrne tabled a letter dated May 6, 1992 signed by Superintendent Furlong authorizing him to engage in secondary employment.

75. This resulted in a series of further questions focusing on the nature and scope of that approval. The letter indicated that approval was for CPR/First Aid training. Constable Byrne explained that when he decided to expand his activities to include snow removal he went to his sergeant to request a modification. He further testified that: “he [Sergeant Rideout] contacted through his chain of command, and sometime later - I think it was almost a week later - he spoke to me again and said a second letter would not be necessary. So I don’t know who gave the approval through him.”

76. This evidence was not challenged.

77. In his decision the Hearing Officer summarized the evidence before him. His subsequent analysis of that evidence and decision read as follows:

After reviewing all the evidence and documents supplied by civilian and police witnesses, dealing with secondary employment as raised in the Statement of Particulars, I believe that the prosecutor on these issues has proven her case.

I find on clear and convincing evidence that Provincial Constable Michael Byrne #7339 acted in a Discreditable Manner and is GUILTY of the allegation of Discreditable conduct.

78. This is not particularly helpful. It provides us with no clear understanding of the Hearing Officer’s line of reasoning.

79. In our view, this conviction cannot stand.

80. First, the Defence had no case to meet on the question of secondary employment given that no evidence was led during the prosecution to prove this allegation.

81. Second, it was unfair to Constable Byrne to allow him to be confronted with evidence that should have been led during the Prosecutor’s case. Even acknowledging that disciplinary hearings are administrative law proceedings of a labour relations nature, the employer should not be allowed to “split” its case.

82. Third, even assuming that none of the above is correct, the undisputed evidence before the Hearing Officer was that Constable Byrne had sought modification of his permission and was advised by his Sergeant that written authorization was not required.

83. It would appear that the Hearing Officer either rejected this explanation or determined that Constable Byrne was not credible on this point. However, his reasoning fails to provide any rationale or explanation for such conclusions.

84. Finally, as noted at the beginning of this decision, this is the third case before us concerning Constable Byrne’s secondary employment. The first concerned snow removal activities in January of 2003. Byrne and Ontario Provincial Police (July 16, 2007, O.C.C.P.S.). The second dealt with transporting goods in April of 2004. Byrne and Ontario Provincial Police (October 9, 2007)

85. We observe that in both of those cases Constable Byrne was successfully prosecuted for secondary employment activities other than CPR/First Aid training. No issue was raised with respect to his authorization to undertake the activities for which he was prosecuted.

86. To not raise the issue of Constable Byrne’s authorization for secondary employment in two matters and then raise it in a third gives us further concern on the question of fairness.

87. For the above noted reasons, the conviction of January 22, 2007 is revoked. It is not necessary for us to address the matter of penalty.

DATED THIS 21st DAY OF DECEMBER 2007.

Murray Chitra Garth Goodhew

Chair, OCCPS Member, OCCPS