Bryl v. Toronto Police Service, 2009 ONCPC 7

OCCPS #09-07

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES REASONS FOR DECISION

Citation: Bryl v. Toronto Police Service, 2009 ONCPC 7

CONSTABLE BOGUMIL BRYL Appellant

and

TORONTO POLICE SERVICE Respondent

Presiding Members: Roy Conacher, Member Garth Goodhew, Member

Appearances: Peter Thorning, Counsel for the Appellant Zoya Trofimenko, Counsel for the Respondent

Hearing Date: December 5, 2008

Constable Bryl appeals findings of guilt on two counts of misconduct pursuant to section 74(1) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the "Act"), which resulted in one conviction being registered for misconduct, namely, acting in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police service, contrary to section 2(1)(a)(xi) of the Code of Conduct set out in Ontario Regulation 123/98 (the "Code").

The officer also appeals the penalty of demotion from First-Class Constable to Third-Class Constable for a period of two years with reinstatement to the original rank to be contingent upon being evaluated by his Unit Commander as being qualified.

The conviction and penalty were imposed by Superintendent Neale T. Tweedy (the "Hearing Officer") on February 15, 2007 and June 21, 2007 respectively.

Background:

Constable Bryl began his career as a Fourth-Class Constable with the Toronto Police Service (the "Service") on or about March 18, 1980. He went on to serve in various units over the course of his career including as a uniformed constable in Traffic Services, the Primary Response Unit and 11 Division Traffic Services. He is a qualified breathalyzer technician. He became a First-Class Constable on or about March 18, 1983.

His employment history includes many commendations, awards and recorded notations for his service confirming that he is a well respected, knowledgeable, experienced, professional officer with leadership qualities. Unfortunately, the record also discloses that his career is not unblemished. Constable Bryl has been convicted of prior disciplinary offences arising from charges under the Criminal Code involving the operation of a motor vehicle while impaired and failing to provide a breath sample. There is also a history of disciplinary actions related to personal appearance and failing to report for duty.

The events giving rise to the matters addressed in this appeal began on Sunday, September 5, 2004 at about 6:00 a.m. Constable Bryl arrived home from work and made the decision to undertake a contemplated three to four day motorcycle trip to St. Louis, Missouri in the United States. He departed his home in Hamilton about 9:30 p.m. that night and travelled to the U.S. border crossing at Windsor arriving there at about 1:20 a.m. During a brief stop on the way he accidentally broke a pair of yellow plastic riding or safety glasses used to protect the eyes and to brighten visibility. He proceeded to the Duty Free Centre at the border where he purchased a case of twenty-four cans of beer, which he placed in the saddlebags of his motorcycle. He then proceeded southbound and about 2:20 a.m. on September 6, 2004, after passing the Ohio state border, he stopped at a rest stop. During his drive, he had attempted to use the broken glasses but they were not sitting properly nor giving him eye protection so he discarded them. While at the rest stop, he consumed two cans of beer over the course of approximately ten minutes.

Constable Bryl continued south on Interstate 75. At this time he was wearing sunglasses as eye protection but he was finding them too dark and dangerous to drive at night and not providing satisfactory eye protection so he slowed his speed.

At about 3:40 a.m., after travelling only 30 miles, he decided to stop at another roadside rest stop and remove the sunglasses. At 3:45 a.m. he consumed two further cans of beer and after finishing the second can, he continued on his motorcycle to Lima, Ohio where he stopped for gas at 5:12 a.m. He then travelled a short distance to another rest stop arriving there at approximately 5:22 a.m. At that time, Constable Bryl consumed an additional five cans of beer over a period of approximately twenty minutes. He opened a sixth can of beer but in the course of commencing to drink, the can slipped from his hand, spilling beer on his jacket. At that moment, he realized that he was binge drinking and out of control and didn't quite know what to do.

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He decided to return to his motorcycle and continue riding south on the Interstate and, after a short period, he stopped at the side of the road to have a cigarette and consider his options. As he stood by the side of the road, he noticed an Ohio State Highway patrol vehicle, which had been travelling northbound, begin to slow down and make a U-turn across the median and approach him. Constable Bryl put his leg over the seat of his motorcycle and motioned to the state trooper that he was not broken down; however, that did not deter the state trooper from investigating. The state trooper approached and asked the officer if he had been drinking which Constable Bryl denied. He was asked a second time whether he had been drinking at which point he admitted to consuming several cans of beer earlier up the highway.

The state trooper then requested Constable Bryl to perform certain field sobriety tests as detailed in the U.S. National Highway Traffic Safety Administration Manual. During discussions with the state trooper, Constable Bryl identified himself as a police officer.

As a result of Constable Bryl's performance of these tests, the state trooper decided to arrest him for having physical control of a motor vehicle while impaired. He was handcuffed and driven to the local Sheriff's Office where a demand was made to submit to a breath test. The breathalyzer machine was operated by the same arresting state trooper and resulted in a blood alcohol reading of .116 grams of alcohol per 210 litres of breath or 116 milligrams of alcohol per 100 millilitres of blood. He was charged and placed in a holding cell. At that point, he was very worried that he would be fired from his job as a police officer and expressed that concern to the senior officer at the station who assured him that he would not suffer an immediate suspension of his driver's licence and would be allowed to post a bond. That officer assisted Constable Bryl in obtaining money to post his bond and then drove him to a local hotel.

Constable Bryl contacted a representative of the Toronto Police Association and advised of his circumstances and sought assistance in obtaining legal representation. Shortly thereafter he also received a telephone call from a Sergeant in Traffic Services with the Service and at that point Constable Bryl suffered an emotional breakdown, fearing that he would lose his job.

Constable Bryl subsequently appeared in court in Ohio on January 26, 2005 and entered a plea of no-contest to the charge of having physical control of a motor vehicle while impaired. A finding of guilt was entered. He was fined $100.00 plus costs and placed on probation for a short period until all obligations to the court were satisfied.

On February 18, 2005, the Appellant was served with Notices of Hearing relating to two counts of misconduct under section 2(1)(a)(xi) of the Code. The Statement of Particulars relating to the first count reads:

Being a member of the Toronto Police Service, attached to Traffic Services, on Monday, September 6, 2004, you were off duty.

At approximately 6:00 a.m. you were on Interstate 75, approximately 48 kilometres north of Dayton, Ohio in the United States of America, in the care and control of a motorcycle.

An Ohio State Trooper investigated you. Investigation resulted in you being arrested and charged with a first class misdemeanour, physical control of a motor vehicle while your ability was impaired.

In so doing, you committed misconduct in that you did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Police Service.

The first two paragraphs and part of paragraph three of the Statement of Particulars with respect to the second count reads the same as count one. The following, however, was added:

You submitted to a breath test. The reading obtained as a result of the breath test indicated that there was 116 milligrams of alcohol per 100 millilitres of blood in your system.

On Wednesday, January 26, 2005, you appeared before The Honourable Judge Donald G. Luce of the Municipal Court, Shelby County, Ohio State, United States of America, to face the charge of Physical Control.

You entered a plea of no-contest. The Honourable Judge Donald G. Luce found you guilty.

In so doing, you committed misconduct in that you did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Police Service.

Constable Bryl pled not guilty to both counts.

The Hearing:

Constable Bryl's disciplinary hearing with respect to these charges began on October 28, 2005, continued on nine subsequent dates and was completed on June 21, 2007. A total of eleven witnesses testified in the course of the hearing, of whom six appeared for the prosecution and five for the defence. Constable Bryl testified on his own behalf. A total of 51 exhibits were filed in evidence.

During the course of the hearing, the Hearing Officer dealt with several procedural motions, including a motion to quash count one and an application to stay both charges based upon the failure of the prosecution to preserve and produce certain audio and video tape evidence made at the time of the Appellant's arrest.

On February 22, 2006, the Hearing Officer heard submissions on the motion brought by the Appellant to quash the first count. The grounds relied upon were that the Notice of Hearing disclosed no offence under the Act, and that to proceed on that count would constitute an abuse of process. After considering the submissions of the parties, on May 23, 2006, the Hearing Officer issued his ruling dismissing the motion.

On November 14, 2006, counsel for the Appellant brought forward an application and made submissions that both counts be stayed on the basis that the prosecution failed to obtain and disclose certain audio and video tapes which apparently were taken by the Ohio state troopers during the road side tests and subsequent to the breathalyzer testing. These tapes were subsequently destroyed by the Ohio State Police and not available for the disciplinary hearing. On February 15, 2007, the Hearing Officer dismissed this motion with reasons.

After hearing the submissions of the parties and considering the evidence presented, on February 15, 2007, the Hearing Officer issued his decision finding the Appellant guilty on both counts one and two but registered a conviction only on count two.

On May 11, 2007, submissions were made on penalty. Character evidence, commendations and positive evaluations were presented. On June 21, 2007, the Hearing Officer imposed a penalty of demotion from First-Class Constable to Third-Class Constable for the duration of two years, with reinstatement to original rank to be contingent upon being evaluated by his Unit Commander as being qualified for that rank.

Constable Bryl appeals the findings of guilt on both counts and seeks an order quashing count one. He also appeals the penalty imposed on conviction under count two.

Motion:

At the outset of the appeal hearing, counsel for the Appellant moved for an order to permit the introduction of fresh evidence consisting of an awards recommendation, letters of commendation and appreciation and a Uniform Performance Appraisal and Development Plan all of which documentation arose and is dated subsequent to the date of imposition of penalty. Counsel submitted that the documentation meets the criteria for admission set forth in Palmer v. the Queen 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 (S.C.C.) at 775 and R.v. Leveque 2000 SCC 47, [2000] S.C.J. No. 47.

Ruling On Motion:

Although an appeal to the Commission is on the record, pursuant to subsection 70(5) of the Act, the Commission has authority to receive new or additional evidence as it considers just. It has been established that in considering the application of subsection 70(5), the Commission would be guided by the principles set forth in Palmer, supra.

Considering the nature of the evidence sought to be adduced, the fact that such evidence came into existence after the completion of the hearing before the Hearing Officer, that with the exercise of due diligence the proposed fresh evidence could not have been available at the hearing, and that such evidence appears to be relevant to the issue of penalty and credible, we granted the order sought.

Appellant's Position On The Appeal:

On behalf of the Appellant, Mr. Thorning submitted that the grounds of appeal could be grouped into five categories:

1. The Hearing Officer erred in law in failing to quash count one;
2. The Hearing Officer erred in law by relying on the facts and findings underlying the Appellant's no-contest plea;
3. The Hearing Officer erred in law by considering the results of sobriety testing without any opinion evidence and by taking judicial notice of foreign law;
4. The Hearing Officer erred in law by failing to provide any remedy for the destruction of the audio and video tapes; and
5. The Hearing Officer erred in law by imposing an unduly harsh penalty.

The Appellant's position on the first ground of appeal was that, on a plain reading of the Statement of Particulars on count one, the alleged misconduct related solely to the fact the Appellant was charged and such allegation does not disclose an offence under the Act and is therefore a nullity and the Hearing Officer had no jurisdiction to proceed to hear that charge. Counsel relied on Milton and Toronto Police Service (April 7, 2004, O.C.C.P.S.) in support of this submission.

The Appellant argued several further points. There is a presumption of innocence which applies on a charge until a finding of guilt is made. The mere fact of a charge having been laid is not itself an act of misconduct. The Appellant submitted that the Hearing Officer erred in interpreting the count and the words therein (i.e. "In so doing") as relating to the behaviour of the Appellant, namely "physical control of a motor vehicle while his ability was impaired", rather than to the words "being arrested and charged with a first class misdemeanour".

Counsel argued that the Hearing Officer misconstrued this issue by considering it to be one of provision of adequate notice of the substance of the charge or possible prejudice to the officer rather than the fact that the wording of the count did not even constitute an offence under the Act. He submitted that the Commission owes no deference to the Hearing Officer on this issue as the error is on a question of law. Corp. of Canadian Civil Liberties Assn. v. Ontario Civilian Commission on Police Services 2005 CanLII 32928 (ON SCDC), [2005] O.J. No. 3875. ( Div. Ct); reversed, [2006] O.J. No. 4699 (Ont. C.A.); application for leave dismissed [2007] S.C.C.A. No. 40. He invited the Commission to vary the finding on this issue and quash this count.

On the second ground of appeal, the Appellant submitted that the Hearing Officer erred in law by admitting into evidence and relying upon the finding of guilt following a plea of no contest in Ohio. The Hearing Officer committed a further error by ruling that the onus is on the Appellant to demonstrate an abuse of process in order to bar the use of the no contest plea and finding of guilt in a subsequent proceeding. Mr. Thorning argues that this sets the standard too high and he referred to Toronto (City) v. Canadian Union of Public Employees, Local 79 [2003] S.C.R. 3 (S.C.C.). He submitted that the principle in that case against re-litigating a finding made in another judicial forum ought not to apply in this disciplinary matter since the court cited the Evidence Act R.S.O. 1990, c E.23 and the reference therein to proof of convictions anywhere in Canada (emphasis added) and in this case the conviction was from a court in Ohio.

He submitted that the appropriate criteria to be considered on admissibility of evidence gathered in a foreign jurisdiction ought to be as set out in the case of R. v. Hape 2007 SCC 26, [2007] S.C.J. No. 26. In that case the court stated that the circumstances in which the evidence was gathered must be considered in their entirety to determine whether admission of the evidence would render a Canadian trial unfair. The Appellant submitted that the evidence gathered in Ohio in the investigation leading to the charge against him was not obtained in a manner that complied with the standards established under the laws of Canada. Counsel further argued that the manner of collection of evidence also did not meet the standards in the State of Ohio. Under such circumstances, the Appellant argues that all of that evidence should have been inadmissible: Hape, supra. The Appellant argued that the Hearing Officer, in admitting such evidence and in basing the finding of guilt in this disciplinary proceeding upon the finding of guilt in the Ohio Municipal Court incorrectly permitted the laws of a foreign state to determine the ultimate issue in this case.

The Appellant further argued that the Hearing Officer erred in his reasoning for finding that the Appellant was barred from re-litigating the issue of the finding of guilt made by the Municipal Court in Ohio. It was the Appellant's position that given the circumstances of the entry of the plea of no contest and the applicable Ohio Rules of Criminal Procedure, the finding of guilt is not determinative of guilt in Canada. The plea is "not an admission of guilt but an admission of the truth of the facts alleged in the indictment, information, or complaint and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding."

Counsel submitted that the Commission should conclude that the evidence of the no contest plea and the finding of guilt in the Ohio court ought not to have been admitted into evidence in this disciplinary proceeding. Accordingly, Counsel invited the Commission to apply the standard of review on this appeal as set out in Williams and Ontario Provincial Police (1995), 2 O.P.R.1047 (O.C.C.P.S.) and find that the Hearing Officer's conclusions are void of evidentiary foundation.

On the third ground of appeal, the Appellant disputed the findings made related to the results of the roadside sobriety and the breathalyzer tests, submitting that, in the absence of expert testimony interpreting those tests and confirming that they were properly conducted, the results cannot be accepted as reliable indicators of impairment: R. v. A.R.H. (2004) S.J. No. 557 (Sask. P.C.), R. v. Badry [2002] B.C.J. No. 2063 (B.C.P.C.), R. v. Bunbury [2005] Y.J. No. 55 (Y.T.C.), R. v. Freeman [2004] B.C.J. No.731 (B.C.P.C.), R. v. Scurvey [2002] Y.J. No. 97 (Y.T.C.) and R. v. Dixie [2004] B.C.J. No.483 (B.C.P.C.).

Mr. Thorning submitted that roadside sobriety tests are admissible only to determine whether an officer has reasonable and probable grounds to make an arrest and the results of forced compliance with such tests are not to be used as evidence of guilt as they were in this case. R. v. Orbanski; R. v. Elias 2005 SCC 37, [2005] 2 S.C.R. 3 (S.C.C.)

Counsel submitted that the breath test was not obtained in accordance with standards established in Canada and asserts that the breathalyzer was operated by an inexperienced state trooper, was not properly calibrated before the test was conducted and that only one sample was collected when two samples are required under section 258 of the Criminal Code R.S.C. 1985, c. C-46 as amended. Specifically, the Hearing Officer erred in rejecting the evidence of Dr. M. R. Corbett, a recognized expert on the operation of breathalyzer machines. Dr. Corbett testified regarding the problems with the methods used to collect the breath sample in this case, specifically, the lack of proper pre-testing of the machine and the lack of verification by a second sample. The Appellant's evidence that the sample was compromised by the fact he regurgitated as the sample was being taken, was also rejected. Appellant's Counsel submitted that the rejection of this evidence and the acceptance of these test results constitute a clear error of law requiring the Commission to vary the decision of the Hearing Officer.

The final issue raised by the Appellant on the appeal of his conviction involved the failure of the Prosecution to produce the audio and video tapes that were made at the time of his arrest. It was Counsel's position that the tapes were available at the time the Service became aware of the Appellant's arrest, and, particularly after receiving a copy of the charge sheet, and the Service took no action to preserve or protect that potential evidence. As a result, the Appellant submitted that he had been prejudiced in his ability to challenge the evidence of the arresting state trooper and to make full answer and defence to the disciplinary charges. The Hearing Officer erred in failing to provide a remedy such as a stay of proceedings, or exclusion of evidence or a preference for the evidence of the Appellant over the Prosecution. R. v. Dulude 2004 CanLII 30967 (ON CA), [2004] O.J. No.3576 (Ont. C.A.), R v. Moore-McFarlane

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2001 CanLII 6363 (ON CA), [2001] O.J. No.4646 (Ont. C.A.), R v. Leung 2008 ONCJ 110, [2008] O.J. No. 1008 (Ont. S.C.J.) and R. v. Phillips [2007] O.J. No. 4932 (Ont. S.C.J.)

With regard to penalty, the Appellant submitted that the disposition imposed by the Hearing Officer was excessively harsh in view of his background, character and record of employment, including the fresh evidence of the Appellant's actions after the disciplinary hearing.

Specifically, Counsel argued that the Hearing Officer failed to consider the following factors: (i) the quality of the evidence presented which did not meet standards required in Canada; (ii) the fact that a minimum sentence was imposed on the charge in the Municipal Court in Ohio; (iii) that the punishment of demotion far exceeded the penalty imposed by the Court in Ohio which was based upon the same factual circumstances; and, (iv) that the Appellant had a twenty-four year employment history of superior performance.

For the above reasons, Mr. Thorning requested that the appeal be allowed, and the conviction and penalty be set aside.

Respondent's Position On The Appeal:

On behalf of the Respondent, Ms. Trofimenko made the following submissions. The issue of the validity of count one was moot in view of the outcome of the hearing. The Hearing Officer registered a conviction and sentenced the Appellant only on count two based upon the rule against multiple convictions for the same acts as set out in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 (S.C.C.). Counsel asserted that no useful purpose is served in reviewing the decision on this issue.

In the alternative, Ms. Trofimenko submitted that the misconduct set out in count one was not the issue of simply being charged, but rather encompassed the Appellant's having care and control of a motor vehicle while impaired. It was open to the Hearing Officer to make this interpretation on a purposeful and grammatical reading of the charge and therefore the charge is not a nullity nor was any amendment necessary as was submitted by the Appellant. She submitted that the Hearing Officer made no manifest error on this issue.

Further, Counsel submitted that the Appellant cannot now take the position that the charge contains insufficient detail to allow him to identify the facts or events leading to the charge as such prejudice was not alleged by him at the hearing nor on this appeal. The Hearing Officer was correct in distinguishing the facts of this case from the circumstances in Milton, supra.

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Counsel for the Respondent asserted that, contrary to the submissions of the Appellant, the Hearing Officer did not simply rely upon the Appellant's plea of no contest and the finding of guilt in the Ohio court in making his finding of guilt on the disciplinary charges herein. He made such finding only after hearing all of the witnesses, determining the issues of credibility and admissibility and considering all of the submissions made by counsel at the hearing. Ms. Trofimenko stated that the Appellant did not contest the admission of the no contest plea but only argued how it was to be interpreted and applied by the Hearing Officer.

Further, it was open to the Hearing Officer to find that the plea and its consequences were admissible under standards applicable in Canada and that the Appellant was not thereby denied natural justice and fairness. As well, the Respondent further submitted that the Hearing Officer properly analyzed the principles cited in Hate, supra, and considered the issue of abuse of process as in Toronto v. CUPE Local 79, supra, and correctly concluded that foreign law does not govern proceedings in Canada. Counsel argued that the Hearing Officer made no error in applying the law in Ontario in determining the admissibility and use of the no contest plea and the underlying facts behind such plea and he correctly concluded that there was no prejudice to the Appellant.

The Respondent referred to Toronto Police Service v. Blowes-Aybar [2004] O.J. No. 1655 (Div. Ct.), and Marsden v. Metropolitan Toronto Police Service (1994), 2 O.P.R. 974 (O.C.C.P.S.) for the principle that misconduct by police officers while outside their city, province or country and off duty is still subject to disciplinary charges.

The Respondent disputed the contention of the Appellant that the Hearing Officer permitted the laws of a foreign state to determine the ultimate issue in this disciplinary proceeding or that he took judicial notice of foreign law thereby committing a manifest error in law. Counsel pointed out that a no contest plea to a misdemeanour in the United States, resulting in a finding of guilt and a conviction, suspended sentence and fine has been treated as equivalent to a summary conviction criminal offence in Canada: Sheriff v. Canada (Minister of Citizenship and Immigration) [1996] I.A.D.D. NO.1302.

Although both parties submitted copies of various Ohio Statutes, Codes and Rules without proof of verification thereof, the Respondent submitted that the Hearing Officer was entitled to admit and consider such documentation in accordance with the provisions of the Statutory Powers Procedure Act R.S.O. 1990, c. S.22. (the "SPPA"). Counsel argued that it is irrelevant to try and determine the character of the offence as committed under Ohio law and that issue was not properly before the Hearing Officer. The correct issue was whether the actions of the Appellant committed in the State of Ohio constituted misconduct under the Act.

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Ms. Trofimenko refuted the Appellant's assertion that the evidence collected in Ohio ought not to have been admitted or at least given any weight by the Hearing Officer because the methods of obtaining such evidence did not meet standards applicable in Canada. She pointed to the fact that there was no evidence that the breathalyzer sample was not collected in accordance with the standards in Ohio using their particular kind of breathalyzer machine. The evidence of the Appellant's medical expert was largely speculative in nature and required certain assumptions for which there was little relevant corroborative evidence. The Hearing Officer was correct in making those findings.

Counsel submitted that the Appellant's own evidence of his actions, including the quantity of consumption of beer over the time period, his admission that he would have been subject to a twelve hour suspension of licence if the actions had occurred in Ontario, and the admissions made by the Appellant's medical expert in cross-examination all corroborate rather than contradict the breathalyzer reading. Counsel also pointed out that there were opportunities for the Appellant first, to call medical evidence to substantiate his claim that he is a diagnosed alcoholic and, second, to establish the rate at which he would eliminate alcohol and he did not.

Nor did the Appellant challenge the breathalyzer evidence at his trial in Ohio where it would have been more appropriate. The Appellant was represented by legal counsel at his trial in Ohio and had legal advice. He could have challenged any such evidence but did not. By his plea of no contest, the Appellant admitted the truth of the facts of the charge. Accordingly, the Respondent submitted that the Hearing Officer was entitled to consider these circumstances and was correct in giving little weight to the evidence of the Appellant and his medical expert regarding their challenge to the breathalyzer reading. The Respondent also submitted that the Appellant cannot now, in effect, re-litigate this issue in this proceeding.

Counsel for the Respondent argued that the proceeding before the Hearing Officer was a labour relations matter and not a criminal proceeding. Accordingly, the application in this proceeding of criminal rules of admissibility of evidence and standards of proof was not appropriate. The Hearing Officer was entitled to receive and consider the evidence of the state troopers regarding their observations and assessments made concerning the performance of the Appellant in the roadside tests and throughout their contact with the Appellant. Counsel also stated that, based upon the review of the evidence in total, the Hearing Officer was also entitled to make findings of credibility and to reject the Appellant's opinion concerning his performance and his condition at the time of his arrest.

The Respondent submitted that the Hearing Officer did not err in failing to provide any remedy for the loss of the audio and video tape recordings as alleged by the Appellant. Counsel stated that the Service did not have any tapes in its possession at any time and was unaware of their possible existence until after their destruction by the Ohio authorities. Accordingly, the Respondent argued that there was no

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failure to disclose. Any tapes were destroyed by the state police following the normal practice in Ohio.

The Hearing Officer was entitled to refuse a remedy, particularly where the Appellant was aware of the existence of such the tapes at the time of his arrest and during the court proceedings in Ohio yet he took no steps to obtain or preserve this evidence and did not raise the issue at the time of receiving disclosure in the disciplinary proceeding. The Respondent submitted that the Appellant has been disingenuous in knowingly failing to retrieve and preserve copies of the tape recordings and then claiming the creation by the Respondent of a significant evidentiary gap resulting in prejudice to the Appellant.

Counsel argued that, as this is a labour relations matter, the Hearing Officer was entitled to continue with the hearing on the merits on the basis of available evidence, particularly where it had not been established that there was any malice or lack of good faith in failing to obtain and preserve evidence and that the unavailability was caused by the innocent actions of a third party. Under such circumstances, the Respondent submitted that the Hearing Officer did not err by refusing to grant a stay of proceedings or excluding evidence or preferring the evidence of the Appellant over that presented by the Respondent. Counsel cited Ontario (Ministry of Community, Family and Childrens' Services) v. Ontario (Crown Employees Grievance Settlement Board) (2006), 2006 CanLII 21173 (ON CA), 151 L.A.C. (4th) 129 (Ont. C.A.).

Finally, the Respondent submitted that the issue before the Hearing Officer was whether, given the findings of fact made, the Appellant acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Service. Actual knowledge of the acts by the public was not necessary. The test is whether or not a reasonable person, having knowledge of those facts, would conclude that the Appellant, by his actions, likely brought discredit upon the reputation of the Service. Counsel asserted that police officers have a higher duty to obey the law given their special powers.

In this case, the Appellant consumed nine cans of beer and part of a tenth over the space of approximately three hours, while operating a motorcycle on a major interstate highway in another country. When stopped by state police, he at first denied consuming alcohol, failed in performing roadside tests and after being arrested gave a breath sample which exceeded the legal limit in the state of Ohio. He was observed by two Ohio state troopers, both of whom formed the opinion that the Appellant was in care and control of his motorcycle while his ability was impaired. He was charged with care and control of a motor vehicle while impaired and he pled no contest to that charge. Even if there had been no charge laid in Ohio, the Respondent submits that the Appellant is guilty of misconduct.

With respect to penalty, the Respondent submitted that the Hearing Officer properly considered all of the well established relevant factors and sentencing principles and imposed a disposition within the acceptable range. Counsel pointed out that there have been directives issued by senior officers warning of severe penalties, including dismissal, for officers found to be drinking and driving. Counsel submitted that penalties for drinking and driving have, in fact, included dismissal as well as lengthy demotion even where the officer pled guilty and has no prior record. Accordingly, the Respondent submitted that the penalty imposed was reasonable and within the range of penalties in other cases and should not be varied.

She relied upon the following cases: Toronto Police Service v. Kelly [2006] O.J. No. 1758 (Div. Ct.), Galassi v. Hamilton (City) Police Service [2005] O.J. No.2301 (Div. Ct.), Gibson and Waterloo Police Service (1986), 2 O.P.R. 707 (O.P.C.), Allen and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.), Nothing and Ontario Provincial Police (1996), 3 O.P.R. 1081 (O.C.C.P.S.), Lang and Toronto Police Service (February 8, 2006, O.C.C.P.S.), Bright v. Konkle (1997), 2 P.L.R. 481 (Ont. Bd. Inq.), Norris v. Loranger (1998), 2 P.L.R. 493 (Ont. Bd. Inq.), Kyle and York Regional Police Service (March 11, 2003, O.C.C.P.S.), Kenny and Ontario Provincial Police, (July 12, 2004, O.C.C.P.S.), Marsden, supra, Gamble and Ontario Provincial Police (1988), 2 O.P.R. 711 (O.P.C.), Lee v. Canada ( R.C.M.P.) 2000 CanLII 15441 (FC), [2000] F.C.J. No. 887 (Fed. Ct. Trial Div.) and Salamon and Mitchipicoten Police Service (1971), 1 O.P.R. 56 (O.P.C.).

The Respondent requested that this appeal be dismissed.

Decision:

The Commission's role on appeal of a finding of guilt is described at page 1058 of Williams and Ontario Provincial Police, supra:

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 no other determination than the conclusions of the adjudicator, as to the credibility with the witnesses, cannot be reasonably accepted. The question to be asked in this case is, are the conclusions of the adjudicator void of the evidentiary foundation?

The test was also referred to in Wilson and Ontario Provincial Police (November 20, 2006; O.C.C.P.S.) at page 7:

This can be a difficult test for the Appellant to meet. The words "void of evidentiary foundation" clearly contemplate that appellate interference with the evidentiary findings will be exercised sparingly: Norris v. Loranger (1998), 2 P.L.R.493 (O. Bd. Inq.)

Commission appeals are on the record. Not only do we hear from counsel for the appellant and respondent, we have the opportunity to review all of the evidence submitted, including transcripts of sworn testimony, physical evidence such as photographs, audiotapes and police documentation. However, we do not have the benefit of seeing and hearing the witnesses.

It is also important to keep in mind the comment of the Divisional Court in Galassi v. Hamilton (City) Police Service, [2005] O.J. No. 2301 at paragraph 19:

In reviewing the reasons of a lay tribunal, the task of this Court is not to be overly critical of the language used, nor is it to focus on mistakes that do not affect the decision as a whole: Re Del Core and Ontario College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 51 O.R. (2nd) 1 (Ont. C.A.). This approach must be kept in mind when the reasons of the Hearing Officer are examined as he is not legally trained.

The Commission has also previously expressed its role to be one of review of the decision of the Hearing Officer to determine whether that decision was reasonable or whether a manifest error was committed requiring the Commission to intervene and vary the decision. In applying the standard of reasonableness, the reasons given by Hearing Officer must support the decision and be read as whole: Ontario Provincial Police v. Favretto 2004 CanLII 34173 (ON CA), [2004] 191 O.P.C. No.3, 72 O.R. (3rd) 681 (Ont. C.A.), Toronto (City) Police Service v. Blowes Aybar [2004] 185 O.E.C. 352 (Div.Ct.) and Toronto (City) Police Service v. Kelly 2006 CanLII 14403 (ON SCDC), [2006] O.J. No. 1758 (Div. Ct.).

The Commission has also stated that criminal law standards should not apply when reviewing the decision of a Hearing Officer as disciplinary proceedings are administrative proceedings involving issues between an employer and employee: Toronto Police Service v. Kelly supra, Gottschalk and Toronto Police Service (January 29, 2003, O.C.C.P.S.), Carson and Pembroke Police Service (March 9, 2006, O.C.C.P.S.), Burnham v. Metro-Toronto Chief of Police, 1987 CanLII 42 (SCC), [1987] 2 S.C.R. 572 (S.C.C.) and Godfrey v. Ontario Police Commission (1991), 1991 CanLII 7115 (ON CTGD), 5 O.R. (3d) 163 (Div. Ct.).

In considering the issue of penalty, the factors which the Hearing Officer is obliged to consider are clear. In Williams and Ontario Provincial Police supra, the Commission identified three key elements: the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police service that would occur if the police officer remained on the force. Other mitigating or aggravating factors to be considered can include the need for general or specific deterrence, concerns arising from management's approach, the officer's employment history, recognition by the officer of the seriousness of the misconduct and any handicap or other relevant personal circumstance of the officer. In addition, when imposing a penalty, it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency.

How do these principles apply to this appeal?

Dealing with the first ground of appeal, that the Hearing Officer erred in principle and in law by failing to quash count one in the Notice of Hearing, we note that in his ruling, the Hearing Officer carefully reviewed the Appellant's position that the Notice of

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Hearing for count one, in its wording, did not describe an offence in law and therefore the charge of misconduct contained therein was a nullity. He proceeded with a review of the relevant statutory provisions to determine whether or not the Notice of Hearing was deficient because it did not describe an offence under the Act.

He reviewed subsections 6 (1) and (2) of the SPPA, and subsections 56 (7) and 69(1) of the Act, and concluded that the SPPA governed the proceedings. He also concluded that this issue involved a consideration of whether the Notice of Hearing was sufficient to identify the substance of the complaint. He found that the statutory provisions gave little guidance regarding the contents of the Notice. For guidance, he referred to subsection 5(8) of former Regulation 680 under the provisions of the predecessor Act which described in more detail the proposed contents of such a Notice. He determined that count one in the Notice of Hearing was properly set out.

The Hearing Officer then went on to consider whether the rules of fundamental justice and procedural fairness required more detail to provide the Appellant with adequate opportunity of knowing the case to be met and providing an opportunity to respond. The Hearing Officer correctly noted that the Appellant did not raise the issue of confusion or ambiguity in respect of knowing the case that he had to meet, but rather was taking the position that count one of the Notice of Hearing did not constitute an offence at law.

The Appellant cited the case of Milton and Toronto Police Service, supra, in support of his argument that simply being charged and arrested does not constitute discreditable conduct, particularly in view of the presumption of innocence. The Hearing Officer reviewed the Appellant's submissions and, in our view, correctly determined that the facts of that case are distinguishable.

The Hearing Officer stated:

In considering the relevance of Milton as it relates to this case I respectfully do not find it applicable and accept the submissions of the Service Prosecutor when he asserts it is the behaviour that led to the arrest, not the arrest, which is the alleged discreditable conduct and the "in so doing" wording relates directly back to being in physical control of a motor vehicle while the officer was impaired. [Transcript Tab F, page 8, para.20]

In our opinion, on a purposeful and grammatical reading of the language of the charge, the Hearing Officer was entitled to come to this interpretation. Upon our review of the submissions made by the parties and the reasons for decision on the motion to quash count one, we have concluded that the Hearing Officer committed no error in law in the application of statutory requirements nor the rules of fundamental justice.

Notwithstanding the foregoing, as an additional consideration of this ground of appeal, the Hearing Officer in his decision stated the following:

There will be findings of guilt on both charges but because there is one transgression of behaviour, a conviction will be registered on Charge Two only.

[page 53, para.1]

Therefore, in applying the principle in R. v. Kienapple, supra., the Hearing Officer registered a conviction and imposed a penalty solely on count two. In such circumstances, the validly of count one is moot.

In Borowski v. The Attorney General of Canada et al, 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 (S.C.C.), the Court considered the issue and stated at page 344:

The doctrine of mootness is part of a general policy that a court may decline to decide a case, which raises merely a hypothetical or abstract question. An appeal is moot when the decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the Court is called upon to reach a decision. (emphasis added). The general policy is enforced in moot cases unless the court exercises its discretion to depart from it.

The approach with respect to mootness involves a two-step analysis. It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the Court should exercise its discretion to hear the case.

In the circumstances, in our opinion, the decision of the Hearing Officer to register a conviction and impose a penalty only on count two renders this issue to be academic and no useful purpose would be served to exercise our discretion to consider further this ground of appeal.

The second ground of appeal is that the Hearing Officer erred in law by admitting into evidence and relying upon the facts and findings underlying the Appellant's plea of no-contest in the State of Ohio. The Appellant's position simply stated, is that the finding of guilt in the Court in the State of Ohio following a plea of no-contest is not admissible as proof of misconduct in this disciplinary hearing. The no-contest plea is not an admission of guilt but only an admission of the truth of the facts underlying the charge. The Appellant also noted that the rules of procedure in Ohio provide that such a plea shall not be used against the defendant in any subsequent criminal or civil proceeding. The Appellant therefore argued that the plea and the underlying facts ought not to have been relied on by the Hearing Officer in arriving at his decision.

We have reviewed the decision the Hearing Officer with respect to the Appellant's submission on this ground and we do not agree with the Appellant's position. In our view, the Hearing Officer made no error in law on this point.

The issue before the Hearing Officer was whether or not he could admit into evidence and consider the fact of the plea of no-contest and the truth of the facts underlying the charge in Ohio. This involved a consideration of the effect and possible application of foreign law, namely Rule No. 11 of the Ohio Rules of Criminal Procedure and the application of Canadian law, namely, the SPPA and the Act.

In considering this issue, the Hearing Officer noted that no law was provided to him for his assistance in interpreting the definition of a no-contest plea or how it was applied in the United States. He went on to review the implications of the Ohio Municipal Court's decision to find the Appellant guilty and referred to the case of Cuyahoga Falls v. Bowers (February 15, 1984, Supreme Court of Ohio). In that case, the Court stated that it does not act simply in perfunctory fashion but makes a considered and reasoned decision when making a finding of guilt after a plea of no-contest. The Court noted that the decision is based upon the charge documentation filed and the admissions made or deemed to be made and the Court noted its obligation to discharge the accused by a finding of not guilty where the statement of facts reveal a failure to establish all the elements of the offence. In other words, the Court does not act as a mere rubber stamp in the process.

The Hearing Officer also referred to the case of Regina v. Houghton (No. 2) (1983), 1982 CanLII 2032 (ON HCJ), 38 O.R. (2d) 496 in which the Court, in deciding issues of admissibility, applied the law of Canada. The Hearing Officer referred to subsections 15 (1), (2) and (3) of the SPPA which govern admissibility of evidence in tribunal hearings in Ontario.

The plea of no-contest was not a disputed fact. The Hearing Officer found that the plea, the Appellant's admission of the truth of the facts underlying the charge and plea and the resulting finding of guilt were all relevant to the subject matter of this proceeding and therefore admissible into evidence pursuant to the provisions of the SPPA. He also considered the possibility that such evidence might be inadmissible pursuant to subsection 15 (2) of the SPPA and he went on to interpret the words "any other statute" in that subsection to mean any other statute of Ontario or Canada. He came to the conclusion that the rules of Canadian law should be applied to the question of admissibility.

We find the reasons clear and cogent on this issue and concur with the conclusions reached by the Hearing Officer.

The Hearing Officer went further and dealt with the issue of whether the principles of natural justice and procedural fairness were offended if the no-contest plea and underlying facts were accepted into evidence and acted upon, and he further raised and considered the issue of whether the admissibility of such evidence could create an abuse of process.

In addressing these issues, the Hearing Officer considered the case of Toronto (City) v. Canadian Union of Public Employees, Local 79, supra. He reviewed the comments by the court on the issue of the undesirability of re-litigating a case in different forums. As a result of his analysis, the Hearing Officer concluded that it was not proper to bar the use of the no-contest plea and finding of guilt in the State of Ohio from consideration in this disciplinary hearing.

We have carefully reviewed the reasons for decision on this issue and we agree with the Hearing Officer's conclusion that the appropriate law to be applied is the law of Canada and specifically, the SPPA and the Act. Section 15 of the SPPA broadly permits into evidence any oral testimony and any document or thing relevant to the subject matter of the proceeding and may act on such evidence (emphasis added), but the tribunal may exclude anything unduly repetitious. In that context, notwithstanding the provisions of the Rules of Criminal Procedure in the State of Ohio, in our opinion, the Hearing Officer properly accepted into evidence and acted upon the undisputed fact of the no-contest plea, which amounted to an admission by the Appellant of the truth of the underlying facts which lead to the charge of having physical control of a motor vehicle while his ability was impaired, and the finding of guilt made in the Municipal Court in Ohio.

The Appellant placed great emphasis upon the case of R. v. Hape, supra. Mr. Thorning submitted that it is the principles underlying sovereignty and international comity that determine the use that can be made of legal proceedings that took place in Ohio. He asserted that to accept such evidence, which was not collected in accordance with Canadian standards, is unfair and violates the Appellant's right to fundamental justice.

In Hape, the Supreme Court rejected the argument that evidence gathered in a foreign country should be inadmissible in the Canadian courts because the evidence was not gathered in accordance with Charter principles. The court held that the evidence obtained in a foreign country pursuant to the laws of that country could be used in Canada and that the only bar to admission into evidence in Canada would be to protect an accused's right to a fair trial.

The Hearing Officer undertook a careful analysis of the issue and considered the question whether admitting such evidence would contravene the rules of fundamental justice and procedural fairness. Part of the Hearing Officer's consideration involved an assessment of whether or not the admissibility of such evidence would constitute an abuse of process and therefore prejudice the Appellant's right to a fair and impartial hearing. Contrary to the Appellant's assertion, in our opinion, the Hearing Officer did not place the onus upon the Appellant to demonstrate the alleged abuse of process in order to bar the use of this evidence. He carefully reviewed the evidence, documents and submissions in this case and the relevant statutory provisions in coming to his conclusion that there was no prejudice or unfairness. The Appellant conceded that the jurisdiction of the Act extends to those officers who are both on and off duty and whether outside the municipality, the province or the Country: Toronto Police Service v. Blowes-Aybar, supra, R. v. Greco (2001), 2001 CanLII 8608 (ON CA), 159 C.C.C. (3d) 146 (Ont.C.A.) and Marsden and Metropolitan Toronto Police Service .(supra)

Mr. Thorning submitted that the Hearing Officer erred in applying his analogy, namely, that a situation could arise in which the Tribunal would be required to apply the rules of admissibility as they are applied from within the country in which an officer found himself and further create two standards of proof, one for an officer who was convicted in Canada and a second, when an officer is convicted elsewhere of an equivalent crime. (emphasis added)

Unfortunately, a considerable portion of the disciplinary hearing was taken up with the issue of whether or not there was an equivalent offence in Canada to the offence with which the Appellant was charged in the State of Ohio. In our view, the relevant issue is the conduct of this officer while in the State of Ohio in determining whether misconduct was committed and not whether the offence or the penalty imposed in Ohio was the same as or equivalent to an offence in Canada. While we may not agree with the precise wording of the analogy expressed by the Hearing Officer, taking the reasons as a whole, on the issue of the admissibility of the plea of no-contest, the admission of the truth of the facts underlying that plea and the finding of guilt, we can find no manifest error in law that would entitle us to intervene in the circumstances. Accordingly we concur that that evidence was properly admitted and before the Hearing Officer and he was entitled to act on that evidence in coming to his decision.

The further issue raised by the Appellant under this ground of appeal relates to the quality of the evidence underlying the findings and facts behind the no-contest plea. The Appellant challenged that evidence on several grounds. Firstly, he took the position that the sobriety tests conducted by the arresting officer in Ohio were not subject to any scientific analysis and therefore could not be considered reliable indicators of impairment particularly under Canadian law. As noted above, Counsel for the Appellant cited a number of cases in support of that position. He went further and argued that the admissibility of the results of the sobriety tests is limited to determining whether an officer had reasonable and probable grounds to make an arrest and not to be used as substantive evidence of guilt. Counsel relied upon R. v. Orbanski ; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3 (S.C.C.) in support of his submission.

The Appellant also argued that the Hearing Officer improperly relied upon the results of a breathalyzer test conducted in the State of Ohio. He asserted that the breath sample obtained was not collected in accordance with Canadian standards since only one breath sample was taken and there was no verification by way of a second sample as is required in Canada. The Appellant also challenged the method by which the breath sample was obtained using a breathalyzer which he alleged was not properly calibrated in accordance with Canadian requirements. The Appellant argued that the Hearing Officer erred in rejecting the evidence of the only expert witness called by the Appellant who testified with respect to the deficiencies in the methodology of taking a breath sample, which were failing to calibrate the machine properly and failing to consider the evidence of alcohol elimination from the Appellant's system.

We have carefully reviewed the reasons for decision of the Hearing Officer on these important issues. In setting out the reasons for his finding of guilt on the charge before him, the Hearing Officer made certain findings of fact on the merits. He extensively reviewed the evidence of the events leading up to the arrest and charging of the Appellant in the State of Ohio. Much of this evidence was provided by the Appellant himself.

The Hearing Officer stated:

I accept Police Constable Bryl drank the volume of beer and in the manner in which he claims, thus finding himself out of control. These admissions do not assist his position and ring truthful. It would be difficult to prove, precisely, how much was consumed if not for the admission. I agree with the Service Prosecutor that drinking nine plus beers and finding oneself out of control, alone at a rest stop, at night, and then riding a motorcycle with dark glasses, lying to Trooper Stanley, is, if standing alone, an act of Discreditable Conduct. I do note the number of beers consumed tallies correctly with those left full in the motorcycle saddle bags and support his admission.

I reject the evidence as unreliable, when Police Constable Bryl expresses his opinion of his performance while conducting the field sobriety tests and the seemingly conspiratorial factors that aligned against him. [page 49,paras. 20-25]

The Hearing Offer went on at length to review the evidence provided by State Troopers Stanley and Carrico, regarding their observations. These included slurred speech and an odour of alcohol.

In the Hearing Officer's findings, he states:

I accept the evidence of Trooper Stanley and Sgt. Carrico on the important matters before me. They were both professional in deportment and demeanour and thoughtful while testifying. Trooper Stanley is relatively junior and gave evidence with less precision than an experienced breathalyzer technician might, but he had maintained notes in the form of his written documents, and had recently successfully completed training, not long before this encounter. I have no suspicion that he has been anything but forthright. Sgt. Carrico went out of his way to be kind and helpful during Police Constable Bryl's time of trouble. He has no axe to grind or motive to hurt Police Constable Bryl. [page 50, para.25]

The Hearing Officer also dealt with the issue of the calibration of the breathalyzer machine. He stated:

While Trooper Stanley did not calibrate the breathalyzer he verified its calibration. While he could not provide specific information of the calibration particulars, I accept the evidence as having sufficient weight to be persuasive and that he was operating as he was trained. I find no reason not to accept his evidence. [pages 50-51, para.25]

The Hearing Officer also considered at some length the evidence provided by Dr. Corbett, the expert called by the Appellant regarding the quality of the breathalyzer evidence. He acknowledged that Dr. Corbett was an expert in his field and noted his concern about the scientific quality control relating to the manner in which the breathalyzer machine was used. He accepted Dr. Corbett's evidence as reliable and well based as it relates to the norms in Canada. Furthermore, he accepted the evidence of Dr. Corbett relating to the scientific protocols as they apply to Canadian standards and he noted that the evidence of Dr. Corbett impacted the weight to be placed upon the breathalyzer evidence but did not render it totally unreliable and of no value. He stated that he had no reason to believe that such evidence would not have been accepted as fact if tested in the Ohio Courts.

The Hearing Officer had difficulty in accepting Dr. Corbett's testimony concerning the specific results of the breathalyzer sample because it was based upon certain assumptions which the Hearing Officer found to be unreliable and too unscientific for him to accept. Other than the Appellant's admission that he is an alcoholic, no medical evidence of such condition was presented nor evidence verifying the Appellant's personal elimination rate or tolerance levels. Accordingly, he found that without further medical assessment, he could not accept the assertion that the elimination rate was beyond that of a non-alcoholic. If that was the case, according to Dr. Corbett's acknowledgment, the Appellant's breath sample reading may have been reasonably correct.

The Hearing Officer stated:

I am troubled however by Dr. Corbett's testimony and assertions, that in his opinion Police Constable Bryl is an alcoholic and therefore, by that simple undefined assertion, he is therefore confident the officer eliminates alcohol from his body at a higher rate than a non-alcoholic. The evidence is important because if the officer eliminated alcohol at a normal rate, Dr. Corbett's calculations at the time of the breath test, would corroborate the accuracy of the breathalyzer reading.

I find the evidence provided by Dr. Corbett, on this point, called for him to make an unreliable assumption, too simplistic and unscientific for me to accept. [page 51,paras. 15-20]

We have reviewed the evidence that was presented before the Hearing Officer regarding the observations of the state troopers, the sobriety and breathalyzer tests, the evidence of the Appellant and the reasons provided and we can find no manifest error in the evidentiary findings made, including the findings on credibility or the inferences drawn by the Hearing Officer in his assessment of such evidence.

The further questions to be considered are whether or not the Hearing Officer erred in admitting the evidence regarding the breathalyzer reading since the collection method did not comply with Canadian standards, and whether the Hearing Officer considered the appropriate weight to be given to it. We cannot agree that such evidence ought not to have been admitted or considered by the Hearing Officer. The issue of the condition of the Appellant at the time he was operating his motorcycle on Interstate 75 is of fundamental importance and relevance to the charge of discreditable conduct. Again, in our view, pursuant to subsection 15(1) of the SPPA, the Hearing Officer is entitled to consider and admit such evidence, being oral testimony, document or thing relevant to the subject matter of the proceeding, and the Hearing Officer was entitled to act on such evidence. In so doing, the Hearing Officer was applying Canadian law to factual events which occurred in the State of Ohio.

In terms of the findings of credibility, the Hearing Officer was in the position to observe the witnesses as they testified, to assess their evidence and to make, and indeed, did make, observations and assessments of their credibility. His assessments are clearly expressed in his reasons for decision and are based upon his observations and inferences which he was entitled to draw. In our opinion, he applied the appropriate analysis including determining what weight to apply in considering the reliability of the evidence before him. We find no manifest error and no reason to disturb those findings.

The Appellant submitted, as his fourth ground of appeal, that the Hearing Officer erred by failing to provide a remedy for the destruction of the audio and video tapes that were made at the time of his arrest and his attendance at the Sheriff's Office in Ohio. The Appellant's position was that the Service Prosecutor knew of the existence but failed to obtain the audio and video tapes that were in the possession of the State Police in Ohio.

As a result, it is argued that the Appellant has been prejudiced in his ability to present full answer and defence to the charges against him. He further asserted that the tapes are very relevant to the proof of what transpired at the time the Appellant was investigated while in the State of Ohio for the alleged offence of having physical control over a motor vehicle while his ability was impaired. Specifically, the Appellant argued that the failure to produce such audio and video tapes limited the ability to challenge key aspects of the evidence of the state troopers concerning their observations of the Appellant's sobriety, his ability to perform the sobriety tests that were conducted, and the events surrounding the taking of a breath sample.

As noted, it was the Appellant's position that failure to disclose this evidence should have resulted in a stay of proceedings in accordance with the principles set forth in R. v. O'Connor, supra, and R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. The Appellant submitted, in the alternative, that the Hearing Officer failed to provide the remedy of excluding the evidence of the state troopers concerning the events leading up to the Appellant's arrest and charging. As a further alternative, the Appellant argued that the Hearing Officer ought to have preferred the evidence of the Appellant over that of the state troopers.

The aforesaid submissions made by the Appellant were dealt with by the Hearing Officer in the context of the second motion heard by him in the course in the disciplinary hearing. He reviewed the evidence presented on this issue at some length and heard submissions from the Appellant and the Respondent. He considered the statutory requirement for disclosure as set forth in subsection 69 (5) of the Act, and in section 8 of the SPPA. Further, he considered the application of the principles set forth in the cases of R. v. O'Connor, supra, and R. v. Stinchcombe, supra. He also considered the statements of this Commission in Cate and Peel Regional Police Service (July 17, 1998, O.C.C.P.S.).

In our opinion, the Hearing Officer correctly applied the principles set forth in those cases in arriving at his conclusion that the video and audio tapes were relevant to the issues before him. He expressed the view that if the audio and video tapes were in the possession of the Service Prosecutor they would have to have been disclosed unless there was a claim for some right or privilege or were demonstrably irrelevant. He went on to find that there was no claim of privilege or assertion of irrelevance by the Prosecutor. The issue considered by the Hearing Officer was whether the Service Prosecutor was under a duty to obtain such evidence and disclose it to the Appellant. The Respondent's position was that the Service was not aware of the existence of the audio and video tapes at any time prior to their destruction by the authorities in the State of Ohio.

The Respondent further argued that notwithstanding the existence of some indication on the documents received from the State Police in Ohio of the existence of such tapes, it did not come to the attention of the Service Prosecutor prior to the destruction of the tapes. Therefore, the Respondent argues that at no time were the tapes in the possession of the Police Service and therefore could not be disclosed to the Appellant. Further, the Respondent argued that the Appellant was well aware of the existence of such tapes having participated in the Court proceedings in Ohio when such evidence was disclosed to him by the authorities there.

We have examined the reasons given by the Hearing Officer in coming to his conclusion that the request for a stay did not meet the test set forth in the O'Connor and Stinchcombe cases since the evidence did not meet the test of "clearest of cases requiring a stay of proceedings". The Hearing Officer found that there was evidence the Appellant had prior knowledge of the existence of the tapes and that his evidence and that of the state troopers did not differ significantly on the events. He also found that there was no malice or unfairness in the failure to obtain and disclose. Under such circumstances he found that there was no prejudice requiring exclusion of the state troopers' evidence.

We can find no error in the reasons provided by the Hearing Officer in his analysis of the evidence on this point nor in his conclusions reached which are set out in the summary of his decision on the motion. We are of the opinion that the findings made by the Hearing Officer relating to the issue of disclosure of the audio and video tapes were not without evidentiary foundation.

Having carefully reviewed the transcripts of evidence taken at the disciplinary hearing, the submissions of the parties and the reasons for decision issued by the Hearing Officer, we find that no manifest error was committed by the Hearing Officer in the conduct of the disciplinary hearing and, in view of our role herein, we can find no reason to intervene in his decision with respect to the finding of guilt and, accordingly, the appeal in respect of conviction is dismissed.

The Appellant has also appealed the penalty imposed.

The Commission has stated in Wildeboer and the Toronto Police Service (November 7, 2006, O.C.C.P.S) at page 7:

When evaluating or assessing a penalty, the role of the Commission is clear. It is not to second-guess the decision of the Hearing Officer. It is not to substitute our opinion for that of the Hearing Officer, rather, it is to assess whether or not the Hearing Officer applied the correct principles and imposed a penalty that is consistent with those handed down in similar cases.

The principles to be applied by Hearing Officers have also been described by the Commission in Carson and Pembroke Police Service supra at pages 14 and 15 as follows:

The factors to be taken into account when assessing a suitable penalty are well established. In Williams and Ontario Provincial Police this Commission identified three key elements. They 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 service that would occur if a police officer remained on the force.

Further considerations can include the need for deterrence, provocation, or concerns arising from management's approach. Other factors can be relevant either mitigating or aggravating a penalty, depending on the conduct in question. These include the officer's employment history and experience, recognition of the seriousness of the transgression and handicap or other relevant personal considerations.

In addition, when imposing a penalty, it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency.

On June 21, 2007, after hearing the witnesses for the Appellant, the submissions of the parties and reviewing the sentencing materials submitted by the Appellant and Respondent, the Hearing Officer issued his reasons with respect to penalty.

It is clear that the Hearing Officer considered all of the factors described in Williams (supra). He found that the offence committed by the Appellant was "on the high end of the serious continuum for a serving officer". In commenting upon the issues of remorse, prospect of rehabilitation and the Appellant's understanding of the seriousness of the offence, the Hearing Officer stated:

When considering the issues of remorse, prospect of rehabilitation and understanding the seriousness of the offence, I find the evidence is unusually mixed and less than clear. While the officer entered a plea of no contest to the charge and accepted the facts in the Ohio Court, he disputes the facts before this Tribunal as he defended himself to the fullest over a prolonged period of time.

He is not entitled to the mitigation that a full admission would have provided and he continues to argue his professional misconduct is not as serious because the fine in Ohio was minor and he did not receive a licence suspension.

I reject this rationale, I find the officer was a threat to public safety, as I equally reject the many excuses I heard including his sore back, wind in his eyes, regurgitation of alcohol, the height of his (sic) boot heels, and the trooper being curt, all of which conspired against him and caused him to fail the road side sobriety tests. [page 15, paras.69-71]

The Hearing Officer further stated:

Additionally, when considering rehabilitation, this is a second conviction of misconduct for a drinking and driving offence. He (the officer) formerly promised the criminal court and this tribunal his conduct would not be repeated yet he failed to honour that promise. [page 15, para.73]

The Hearing Officer found that the Appellant's explanation for his behaviour and the rationalizing of such behaviour fell well short of accepting full responsibility at the first opportunity.

The Hearing Officer did, however, go on to indicate:

Also when considering rehabilitation, I note from the point of his arrest forward, the evidence demonstrates he has done everything humanly possible to correct his illness and the behaviour that resulted. The independent evidence is he is humiliated and ashamed of his conduct which is a factor of mitigation.

More important is the testimony from P.D. She states Police Constable Bryl is a leader in his support group and has attended on about eighty occasions and only missed a session when required to work. [page 16, paras. 77-78]

I am of the opinion that this evidence, in this case makes my decision very difficult because I conclude it is more likely than not, he (the officer) will continue to recover his health and not repeat the behaviour. It demonstrates there has been an honest effort to ensure his abstinence. [page 17, para.80]

The Hearing Officer took into consideration the positive character references provided by fellow officers both in verbal testimony as well as reference letters filed as exhibits. He also properly considered the Appellant's employment history which included a number of commendations, awards and favourable performance evaluations. The Hearing Officer noted that the Appellant had previously been convicted of impaired driving which resulted in a disciplinary action.

In reviewing the reasons, it is apparent that the Hearing Officer, in considering the mitigating and aggravating factors, gave emphasis to the issue of the public interest in the context of this disciplinary proceeding. He expressed the opinion that the behaviour of the Appellant would be considered offensive wherever it occurred.

In our opinion, in the face of prior warnings about the possible consequences of drinking and driving, the Appellant drove his motorcycle, after consuming nine plus beers in a very limited time under admitted dangerous conditions. As a police officer, he has a special obligation to obey the law and to uphold the trust placed in him by the public. In this, he has failed and in so doing has committed misconduct as set out in subsection 2(1)(a)(xi) of the Code.

In our view, the Hearing Officer reviewed and considered all of the relevant factors of sentencing previously expressed by the Commission and correctly considered the weight to be applied to each factor in coming to his decision on penalty.

We agree with the statement of the Hearing Officer:

The public must be assured that serving police officers will protect, not threaten, their safety. All officers have been and are placed on notice that convictions for impaired driving or similar conduct will have significant consequence to an officer's professional status.

Like the issue of the seriousness of the offence, general deterrence weighs heavily in my decision. [page 18, para.86]

The Hearing Officer clearly went on to consider the impact of his decision upon the Appellant and his family and the financial hardship which will result.

It is apparent from his reasons that the Hearing Officer seriously considered the possible dismissal of the Appellant from the Service as a result of his conduct. However, upon weighing the mitigating and aggravating factors, and the results of previous decisions in similar cases, the Hearing Officer came to the conclusion that dismissal was too harsh or excessive in the circumstances and that an" incremental elevating penalty" would be more appropriate.

The Commission may vary a penalty only if it finds that it is unreasonable, fails to consider all the relevant factors, demonstrates a manifest error in principle or would amount to an injustice: Williams (supra); Blackburn and Niagara Regional Police Service (September 17, 2003, O.C.C.P.S.).

After a careful review of the reasons for decision in their totality, we find that the penalty is not unreasonable, that Hearing Officer properly considered all of the relevant sentencing factors, and that no manifest error in principle was committed in arriving at the penalty imposed.

Accordingly, both the appeal against conviction and the penalty imposed are dismissed.

DATED AT TORONTO THIS 27TH DAY OF MAY, 2009

Garth Goodhew Member OCCPS

Roy Conacher Member OCCPS