Suleiman v. Ottawa Police Service and Lord, 2011 CanLII 101566

OCPC #11-09

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Suleiman v. Ottawa Police Service and Lord, 2011 ONCPC 8

B E T W E E N:

MAGABI SULEIMAN

APPELLANT

-and-

OTTAWA POLICE SERVICE

-and-

CONSTABLE JACKY LORD

RESPONDENTS

DECISION

Panel: David C. Gavsie, Chair

Zahra Dhanani, Member

Hearing Date: May 5th, 2011

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, Ontario M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Appearances

1. Magabi Suleiman, Self-Represented Appellant

2. Mr. Joël Dubois, Counsel for the Respondent, Ottawa Police

Service

3. Mr. Mark Wallace, Counsel for the Respondent, Constable

Jacky Lord

Introduction

1. A hearing of the Ontario Civilian Police Commission (the “Commission”) was held at the offices of the Commission on May 5, 2011 regarding an appeal by Magabi Suleiman (the “Appellant”) of the decision rendered by Retired Deputy Chief Terence Kelly (the “Hearing Officer”) on September 15, 2010 acquitting Constable Jacky Lord (“Constable Lord”) on both of the charges against him. The Ottawa Police Service (“OPS”) is also a named respondent in this appeal.

2. On December 14th, 2009, Constable Lord pled not guilty to two charges of misconduct contrary to the Code of Conduct set out in Ontario Regulation 123/98 (the “Code of Conduct”), as amended, enacted under the Police Services Act, R.S.O. 1990, C.P.15, as amended (the “Act”), namely one count of unlawful or unnecessary exercise of authority contrary to section 2(1)(g)(i) and one count of insubordination contrary to section 2(1)(b)(ii).

3. The charges were laid as a result of Constable Lord’s arrest and strip search of the Appellant on July 31, 2008.

4. The Appellant appeals the decision of the Hearing Officer.

Decision

5. For the reasons set out below, we GRANT the appeal, and revoke the Hearing Officer’s decision, finding Constable Lord

unnecessary exercise of authority contrary to section

2(1)(g)(i) of the Code of Conduct, and (2) insubordination contrary to section 2(1)(b)(ii) of the Code of Conduct.

Background

6. The Appellant is a young man who lives in Ottawa. There was very little in evidence about him, other than that he receives social assistance, works some odd jobs to supplement that income and he has come into contact with the police on three or four occasions prior to the date of the incident in question.

7. Constable Lord has been a police officer with the OPS for several years and it was noted by his supervisor in evidence that “he is the best officer in his platoon.” On July 31, 2008, Constable Lord was stationed with the street patrol.

8. Constable Lord did not testify during the hearing before the Hearing Officer. However a written statement he made to OPS regarding the July 31, 2008 incident involving the Appellant, and a transcript of his interview by the OPS investigator, were made exhibits at the hearing. Both of these documents were referred to by counsel during the hearing of the appeal.

9. While there was contradictory testimony given during the disciplinary hearing, certain facts were consistent in all accounts. In brief, the Appellant was arrested and charged on July 26, 2008 for causing a disturbance. Constable Lord did not participate in this arrest but he was aware of it. One of the conditions of the Appellant’s release was that he was excluded from a geographical area which had as its eastern boundary King Edward Avenue and generally consisted of the Ottawa Byward Market area (the “Excluded Zone”).

10. On July 28, 2008, the Appellant was arrested again, this time for breaching the conditions of his release by being in the Excluded Zone. The arresting officers offered to release him without charge if he went home. The Appellant refused the

towards the officers.

11. The Appellant was taken to an OPS substation where he was searched. During the search, some cocaine was found on the floor near the Appellant. He was charged with possession and released. As the Appellant was leaving the substation, he saw Constable Lord and rushed towards him. In response, Constable Lord slapped the Appellant on the face to stop him. Shortly thereafter a number of officers, including Constable Lord, escorted the Appellant to King Edward Street, the eastern boundary of the Excluded Zone.

12. On July 31, 2008, while on a break, Constable Lord and Constable Pilotte were outside a 7-11 store at the corner of Rideau and Augusta streets. Augusta Street is several blocks east of and runs parallel to King Edward Street. At the same time the Appellant was walking towards the 7-11 store. The Appellant saw Constable Lord and turned to leave. However, Constable Lord had also seen the Appellant, ran towards him, stopped him, and placed him under arrest.

13. In his written statement and in the transcript of his interview by the OPS which were marked as exhibits, Constable Lord stated that he arrested the Appellant on July 31, 2008, because he thought that the Appellant had breached the condition of his release by being inside the Excluded Zone. After arresting the Appellant Constable Lord did a pat down search of him, and found a large sum of money, totalling

$3,125.00. Constable Lord believed that this money had come from proceeds of crime and he confiscated it.

14. Constable Lord subsequently took the Appellant behind the 7-

11 store to do a search down the Appellant’s pants, to make sure that he was not hiding any drugs or weapons. Once behind the 7-11 store, the Appellant dropped his pants. It is Constable Lord’s evidence that the Appellant did this voluntarily.

15. Constable Lord then went to a police cruiser to conduct a

CPIC check on the conditions of the Appellant’s release and confirm the boundaries of the Excluded Zone. As a result of this check Constable Lord learned that the Appellant had not breached the conditions of his release, given the 7-11 store was located outside of the Excluded Zone.

16. Staff Sergeant Mallet (the Supervisor for the Street Patrol platoon) attended the scene. He asked if the Appellant had been searched. Constable Lord advised that he had searched the Appellant but did not disclose the strip search. Sergeant Mallet ordered a pat down search, for which he was present.

17. Nothing further was found on the Appellant and he was released.

18. On August 8, 2008 the Appellant filed a complaint with the OPS alleging that on July 31, 2008 he was unlawfully and unnecessarily arrested and strip searched by Constable Lord. The OPS investigated and subsequently referred this matter to a hearing.

19. At his disciplinary hearing, Constable Lord pled not guilty to both charges.

The Hearing

20. The hearing before the Hearing Officer took place over 4 days, December 14, 2009, and June 8,10, and September 15,

21. Four witnesses testified, and fourteen exhibits were admitted into evidence.

22. The Hearing Officer’s decision was released on September 15,

23. Constable Lord was acquitted on both charges.

Preliminary Matter

22. At the outset of the appeal hearing, it was noted that in the Notice of Appeal this matter is described as an appeal under section 87 (1) of the Act. This is an error. The charges which are the subject of this appeal relate to events which occurred

prior to October 19, 2009, before the Act was amended. The Panel corrected this at the outset of the hearing. This appeal is heard under section 70 (1) of the version of the Act in force prior to October 19, 2009. Under section 70 (6) the Commission may confirm, vary or revoke the decision being appealed, or it may substitute its own decision for that of the Hearing Officer. The Commission cannot, however, order a new hearing.

Submissions of the Appellant

23. The Appellant was not represented by counsel and waived the right to be so represented. At the hearing he made brief oral submissions. Prior to the hearing he filed a letter setting out his written submission. The gist of the Appellant’s submission is that he does not agree with the Hearing Officer’s decision, that Constable Lord arrested him unlawfully and unnecessarily, and conducted a strip search of him behind the

7-11 store contrary to OPS policy.

24. It is the Appellant’s submission that he did not consent to the strip search.

25. During the hearing before us the Appellant stated that “what Jacky Lord did was not right.” He stated that he “was ashamed of the whole situation” and that it “scared him to death.”

Submissions of the Respondent Ottawa Police Service

26. Mr. Dubois submitted that while it is the Commission’s practice to defer as much as possible to a Hearing Officer’s decision, deference should not be shown in this case because of the substantial errors in the Hearing Officer’s decision, particularly errors of law. Geske and Hamilton Police Service (July 3, 2003, OCCPS).

27. Mr. Dubois stated that the Commission has jurisdiction to vary the decision of the Hearing Officer where it is unreasonable, would amount to an injustice or be unfair, or

where all relevant factors have not been fairly or impartially considered. Williams and Ontario Provincial Police (December

4, 1995, OCCPS).

28. He submitted that the Hearing Officer erred in law by applying the wrong tests to both the charge of unlawful or unnecessary arrest and the charge of insubordination.

29. He argued that the Hearing Officer committed errors so fundamental that his decision should be revoked, such errors being:

30. he did not enunciate the appropriate test for both of the charges;

31. he failed to set out cogent reasons for his decisions on credibility;

32. he failed to give adequate reasons for his decision that

Constable Lord was not guilty on both of the charges; and

4. he breached procedural fairness because in his decision he did not: set out findings of fact; address necessary or relevant issues; disclose his reasoning process; and he did not provide the “what” and the “why” of his decision to allow for effective appellate review.

5. Mr. Dubois submitted that the appropriate standard of review on this appeal is reasonableness. Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 and Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

6. Mr. Dubois submitted that where there is a breach of procedural fairness deference is limited and the standard of review is correctness. Clifford v. Ontario (Attorney General),

2009 Carswell Ont. 5595 (C.A.) and Creager v. Nova Scotia

(Provincial Dental Board), 2005 CarswellNS 48 (C.A.).

32. Finally, Mr. Dubois requested that the Commission quash the

Hearing Officer’s decision and substitute findings of guilt on

both charges.

Submissions of the Respondent Constable Lord

33. Mr. Wallace submitted that the decision of the Hearing Officer is supported by evidence and by law.

34. Mr. Wallace asserted that the standard of proof in disciplinary hearings is “clear and convincing evidence”, which has been defined in case law as “weighty, cogent and reliable evidence upon which a trier of fact acting with care and caution can come to the fair and reasonable conclusion that the officer is guilty of misconduct”. Precious and Hamilton Police Service (May 10, 2002, OCCPS). He asserted that the Hearing Officer appropriately found the testimony of the Appellant not to be credible, and that there was not clear and convincing evidence establishing the charges against Constable Lord.

35. He argued that the standard of review to be applied to the Hearing Officer’s decision is reasonableness, and that his decision is owed a considerable level of deference. Dunsmuir, supra.

36. Mr. Wallace submitted that the Hearing Officer’s decision should be considered in its entirety and not from a microscopic analysis of each individual comment made by the Hearing Officer. Carson v. Pembroke Police Service, [2007] O.J. No. 5392 (Ont. Div. Ct.). Finally, counsel submitted that the Hearing Officer’s decision is reasonable and, therefore, this appeal should be dismissed.

Reasons for Decision

37. The Appellant appeals the decision of the Hearing Officer, acquitting Constable Lord on both charges.

38. The standard of review for the Commission with respect to the Hearing Officer’s factual findings is reasonableness. McCormick v. Greater Sudbury Police Service (2010), ONSC

270 (Ont. Div. Ct.).

39. The standard of review with respect to the Hearing Officer’s interpretation of the law is correctness. Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (Ont. C.A.).

40. The Supreme Court of Canada described the standard of reasonableness in Dunsmuir:

“Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable rational solutions. … In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

41. Past Commission decisions have spoken to our role on an appeal, noting that we are not to second-guess the decision of a hearing officer, but rather to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence, and are articulated in a logical manner. Precious, supra, and Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div.Ct.)

42. In certain limited cases it may be open to us to reach a different conclusion from the trier of fact. However, we should only intervene if there has been an error in principle, or relevant factors have been ignored. Williams, Wilson and Ontario Provincial Police (November 20, 2006, OCCPS), Favretto and Ontario Provincial Police (February 13, 2002, OCCPS) and Karklins and Toronto Police Service (September

25, 2007, OCCPS).

43. An appeal to the Commission is an appeal on the record.

Unlike the trier of fact, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to the Hearing Officer’s findings, unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence. Blowes-Aybar and Toronto (City) Police Service,

2004 Carswell Ont 1583 (Div. Ct.).

44. In reviewing the Hearing Officer’s decision we find that significant errors were made. Specifically, we have determined that:

a. the decision contains significant findings which are unreasonable in the face of the evidence. The Hearing Officer failed to appropriately consider all of the evidence given by the witnesses.

b. the Hearing Officer failed to set out cogent reasons for his decisions on credibility.

c. the Hearing Officer failed to consider the relevant legal tests in reaching his decision.

d. the Hearing Officer failed to give adequate reasons for his decision.

Taken together, we find that the errors in this decision amount to a breach of procedural fairness.

Unreasonableness of Findings

45. Along with the Appellant, two police officers and one Staff

Sergeant testified as to what happened on the evening of July

31, 2008 at the 7-11 store. In addition, there is documentary evidence about what happened that day. Included in the documentary evidence is a written report by Constable Lord, the transcript of Sergeant Greaves’ interview with Constable Lord at the OPS, and the Investigation Report prepared by Staff Sergeant Denis Cleroux of the OPS Professional

Standards Branch.

46. Overall, the Hearing Officer’s decision speaks mostly to the contradictory testimony of the Appellant at the hearing, including how he contradicted himself at different points when speaking about how much money he had and where it came from. The Hearing Officer also closely reviewed the Appellant’s testimony about the order in which he took his clothes off and whether or not he kept his shoes on.

47. The Hearing Officer refers in a cursory manner to the transcript of the interview of Constable Lord by Sergeant Greaves. Nowhere in his decision does the Hearing Officer mention the findings of the OPS Investigation Report. We find the Hearing Officer’s failure to deal with this material evidence to be unreasonable and to constitute an error of law.

48. In a seventeen and one quarter page decision, fourteen and a half pages are devoted to recounting the events of the day in question and inconsistencies in the Appellant’s testimony. The last two-plus pages contain the Hearing Officer’s findings. We find that in these last two pages the Hearing Officer enunciated the wrong legal tests and failed to set out a clear line of reasoning supporting his decision. On page sixteen of his decision, the Hearing Officer states:

“I find as fact that the evidence of Magabi Suleiman, with regard to the facts surrounding the charge of Insubordination, is entirely inconsistent with the preponderance of probabilities, that rationally emerge out of all of the evidence in this case.” [emphasis added]

49. We find this statement to be unreasonable. In the Investigation Report by Staff Sergeant Denis Cleroux states, at page 8:

“Much of what Constable Lord related in his written response to, and interview with Sergeant Greaves does not conflict with what you have related:

-That he handcuffed you in the vicinity of the 7-11 on Rideau Street;

-That you had been released on an Undertaking for a previous set of criminal charges and that there was a physical boundary you were not allowed into;

-That you were arrested on the belief of Constable

Lord that you were within the prohibited boundary;

-That Constable Lord realized after you were arrested, and subsequently searched behind the 7-

11, that he was mistaken about where the prohibited boundary was in that you were not

violating the boundary condition of your previous

Undertaking;

-That upon arresting you, he initially searched you in the area near the front of the 7-11, finding a large amount of money, in excess of $2,000.00 and that he questioned you about where you obtained such a large amount of money;

-That he seized the money;

-That he took you behind the 7-11 with the intent to search you more extensively than he had done just

after you were arrested;

-That you pulled your pants and underwear down while behind the 7-11;

-That upon completion of the search you were brought back to the front area of the 7-11 where

Constable Lord verified that you were not violating

your boundary condition;

-That you were released from the front of the 7-11.”

50. Staff Sergeant Mallet and Constable Pilotte testified that on seeing the Appellant on July 31, 2008, Constable Lord arrested him, because the Constable thought the Appellant had breached the conditions of his release by entering the Excluded Zone.

interview with Sergeant Greaves that he arrested the Appellant upon seeing him, without first verifying his concern that the Appellant in fact was in the Excluded Zone. He also admitted to taking the Appellant behind the 7-11 to search down his pants. This search is considered a strip search under OPS policy which Constable Lord, in his interview with Sergeant Greaves, said he knew.

52. This is very relevant and significant evidence. There is no indication in the decision that the Hearing Officer accorded it any value. We find that the conclusion that the Hearing Officer states would “rationally emerge out of all of the evidence in this case”, is not the conclusion that he came to.

53. Staff Sergeant Mallet testified as follows:

“Question: So prior to directing the second search, did you take any steps to ascertain the boundary area? Answer: Prior to? Not Prior to.”

54. Three searches were conducted on the Appellant before the supposed “violation” had been checked out.

55. The evidence that the Appellant was searched three times before Constable Lord established whether he was in breach of his release conditions is not evidence that can be taken lightly or wholly discounted. The Hearing Officer’s decision fails to address all of the evidence that points to the fact that Constable Lord arrested the Appellant without a lawful or necessary reason, and that he strip searched the Appellant in a manner contrary to OPS policy.

56. Further, we find that the Hearing Officer erred when he failed to give reasons for his findings. Neinstein, supra.

Reasons for Findings on Credibility

57. We find the Hearing Officer’s decision confusing. While consideration has been given to the fact that hearing officers

decision must meet minimum standards.

58. The Hearing Officer appears to have confused the hearing into the alleged misconduct of Constable Lord, with a hearing to ascertain the Appellant’s culpability. We take this view because the decision is almost wholly concerned with the Appellant’s credibility or lack thereof.

59. We have reviewed all of the transcripts, all of the evidence and all of the submissions. It is our finding that even if everything that the Appellant testified to was not to be relied on, there would still be clear and convincing evidence supporting the conclusion that Constable Lord is guilty on both counts. We elaborate on this point in the next section of our decision.

60. Furthermore, the Hearing Officer failed to give reasons for his findings on credibility.

61. We find that there are gaps in the Hearing Officer’s reasoning. In addition to the Appellant’s testimony, there were three other sources of relevant evidence, namely: Staff Sergeant Mallet, Constable Pilotte, and Constable Lord’s documentary evidence (his written report and the transcript of his interview by Sergeant Greaves). Despite this other relevant evidence, the Hearing Officer based his decision on the Appellant’s testimony, which he found not to be credible. In addition, the Hearing Officer did not provide reasons for why he found the Appellant’s testimony to be the most relevant aspect of all of the evidence at the hearing.

62. In our view it is not necessary to change or substitute the Hearing Officer’s finding about the Appellant’s credibility. Instead we look to the documentary evidence of Constable Lord, which we find is the most material of the evidence before us. Constable Lord unequivocally admitted in his written report and his interview with Sergeant Greaves that he arrested the Appellant without knowing whether he was unlawfully present in the Excluded Zone, in breach of the

conditions of his release. Constable Lord also admitted that when he took the Appellant behind the 7-11 store he intended to search inside the Appellant’s pants. In our view, given this evidence, whether or not the Appellant dropped his pants voluntarily is not relevant to the question to be answered.

63. On page sixteen of the decision, the Hearing Officer quotes Justice O’Hallaran in Faryna v. Chorny (1952) 2 D.L.R. (B.C.C.A.):

“The credibility of interested witnesses, particularly in a case of conflicting evidence, must reasonably be subjected to an examination of consistency of their stories with possibilities that surround the current existing conditions.”

64. We have found from our review, that on the most salient points the evidence is not conflicting. At the hearing counsel for Constable Lord stated, “There was no issue on the arrest, everyone agreed that he was arrested.” There was also no conflict as to whether the strip search occurred; perhaps on some of the details of the strip search, but not that the strip search occurred.

65. We also find that on the most important aspects of the events in question the Appellant’s testimony was consistent with the evidence of Staff Sergeant Mallet, Constable Pilotte, and Constable Lord’s documentary evidence.

66. In our view, the Hearing Officer’s preoccupation with the Appellant’s lack of consistency in answering some questions caused him to lose sight of the case before him. This case does not turn on findings of credibility and is really quite straightforward. There are clear answers based in reliable evidence to the following relevant questions:

• Did Constable Lord arrest the Appellant?

• Did Constable Lord have lawful grounds to arrest the

Appellant?

• Did Constable Lord have reasonable grounds to arrest the

Appellant?

• Did Constable Lord conduct a strip search of the Appellant?

• Did Constable Lord comply with OPS policy for conducting a strip search?

The Relevant and Appropriate Legal Tests

67. On page seventeen of the decision, the Hearing Officer states:

“I accept the fact that Constable Lord, giving evidence in this Tribunal regarding his interactions with Magabi Suleiman and his involvement in his recent arrests would form a reasonable suspicion, based on his knowledge of Suleiman, that forms a connection between a specific person and a recent or current offence; or an indication that the specific person is “implicated in criminal activity” [emphasis added].

In our view, “reasonable suspicion” was not the appropriate standard to be applied here. In addition, the meaning of the sentence is not clear.

68. Repeatedly in the decision the Hearing Officer quotes legal tests and standards without providing a line of reasoning connecting them to his conclusions. In addition, he fails to analyze important aspects of the legal tests he applies. We find the Hearing Officer’s failure to articulate his findings to be unreasonable.

69. As a result in the following paragraphs we will review the applicable legal tests and make findings based on the evidence in the record before us.

Unlawful or Unnecessary Arrest

70. There are two elements of a lawful arrest: 1) the officer subjectively believes he or she has reasonable and probable grounds for the arrest; 2) these grounds must be objectively justifiable. R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1S.C.R. 241.

71. Section 2 (1) (g) (i) of the Code of Conduct states that an officer commits misconduct if he or she engages in “unlawful or unnecessary exercise of authority, in that he or she, without good and sufficient cause makes an unlawful or unnecessary arrest.” [emphasis added]

72. The Canadian Charter of Rights and Freedoms guarantees the right of Canadians to be free from unlawful search, seizure and detention.1 These fundamental protections are the foundation of a truly democratic society and form the basis of policing law and regulation. Without important safeguards such as these, liberty from the excesses of policing cannot be ensured.

73. The first question is, did Constable Lord arrest the Appellant?

The answer, supported by all the evidence, is “yes”.

74. The second question is, did Constable Lord have lawful grounds to arrest the Appellant? In his written statement, and in the transcript of his interview by Constable Greaves, Constable Lord states that he arrested the Appellant on July

31, 2008, because he believed that the Appellant had violated the conditions of his release by entering the Excluded Zone.

We find that the evidence establishes that at the time in

question the Appellant was not violating his boundary conditions and had the right to be in the area where he was arrested. There was evidence that on July 28, 2008, Constable Lord had taken the Appellant to the eastern-most boundary of the Excluded Zone, King Edward Street, and released him. The 7-11 store where the Appellant was arrested is located at Augusta and Rideau streets, several

1 s. 7-11 of the Charter of Rights and Freedoms, Constitution Act, 1982, Part I.

streets east of the eastern boundary of the Excluded Zone.

75. The third question is, did Constable Lord have reasonable grounds to arrest the Appellant? The evidence before us is that Constable Lord arrested the Appellant as soon as he was sighted. In his interview with Sergeant Greaves Constable Lord states, at page 8, “He was saying that he was not in his boundaries and I was sure that, uh, he was.”2 Despite being advised by the Appellant that he was not in violation of his conditions, Constable Lord did not stop to check on the actual boundaries of the Excluded Zone and continued with a pat down search and a strip search. Only after the searches did Constable Lord check CPIC to verify the boundaries and find out that the Appellant was not doing anything unlawful because he was not inside the Excluded Zone.

76. There is a significant body of case law that requires police to make inquiries to ensure that they are arresting a citizen on objective considerations. R v. White, 2006 CarswellOnt 5848 (Gen. Div.) In this case, Constable Lord did not make appropriate inquiries. A very quick CPIC check from the outset on July 31, 2008, would have immediately made it clear that the arrest was unnecessary and unlawful.

77. When interviewed about why, aside from his belief of the violation of the boundary conditions, he arrested the Appellant, Constable Lord stated that the Appellant is a “known drug dealer”. The reputation of the Appellant cannot be grounds for an arrest. The evidence before us is that the Appellant had been arrested once for possession. There is no record before us of the Appellant being charged or convicted for selling drugs. Therefore the information that the Appellant is a “known drug dealer”, alone, does not support “reasonable grounds” for arrest.

78. Police officers bear a responsibility to make arrests based on subjective and objective knowledge. Constable Lord had absolutely no objective information to support his arrest of the Appellant on July 31, 2008, only subjective speculation.

2 Tab 12 of the Appeal Brief.

79. We find that Constable Lord did not have reasonable grounds to arrest the Appellant.

80. Furthermore, we find the Hearing Officer’s findings on this question to be unreasonable because he did not assess the relevant test against all of the evidence. Most specifically, the Hearing Officer failed to address the part of the test that makes it clear that “reasonable grounds” cannot be based solely on subjective information that the Appellant “is a known drug dealer”.

81. For the foregoing reasons, we revoke the Hearing Officer’s finding of not guilty and find Constable Lord guilty on the charge of unlawful or unnecessary exercise of authority.

Insubordination

82. The OPS policy on strip searches made an exhibit at the hearing is very clear. Sections 23 to 25 of the OPS policy on “Arrest/Custody/Courts” state that, among other things, all strip searches must: 1) be the result of a lawful arrest, 2) be related to the reasons for the arrest, 3) be based on reasonable and probable grounds that a strip search is necessary, 4) take place at the police station unless there are “exigent circumstances”, and 5) be authorized by a supervisor.

83. In this case the strip search was not based on a lawful arrest.

It was not related to the reasons for the arrest. It did not take place at the police station. There was no urgent reason

why it had to take place immediately. And it was not

authorized by a supervisor. The strip search in this case contravened all of the requirements of the OPS policy.

84. Even if it was proven that Constable Lord had “reasonable and probable grounds” to deem the strip search necessary, the manner in which he conducted the strip search contravened the most important elements of the OPS policy which allow for a private, dignified and legal strip search.

with Sergeant Greaves, he states that he did the search because he thought the Appellant may have drugs or weapons on him. When his superior, Staff Sergeant Mallet arrived on the scene, (not knowing that a strip search had already occurred) he ordered another search, but he did not order a strip search. This is very noteworthy, because it makes it clear that the Sergeant in his assessment did not believe that a strip search was necessary.

86. Constable Lord in his written statement and during his interview states that when he found a large sum of money on the Appellant, and the Appellant didn’t offer a satisfactory explanation, he assumed there was an illegal reason for the Appellant’s possession of this money. Constable Lord seized the money to investigate if it was the proceeds of crime. During all three searches that day and after a subsequent investigation through the OPS, no evidence to that effect was found. Ultimately, the money was returned to the Appellant. This further undermines the assertion that there was an urgent need for a strip search.

87. Constable Lord stated in his written report that he conducted the strip search based on his previous dealings with the Appellant. He took the Appellant behind the 7-11 store and conducted the search right there and then.

88. In the interview with Sergeant Greaves, Constable Lord states unequivocally, “Even if he had not tried to prove his point...I...I would have done the search.”3

89. Section 2 (1) (b) (ii) of the Code of Conduct provides that a police officer engages in misconduct, specifically the act of insubordination, if he or she “without lawful excuse, disobeys, omits or neglects to carry out any lawful order”.

90. In our review of the evidence and for the reasons set out above, we were able to find no lawful reason for the strip

3 Tab 12, Appeal Brief, Transcript pages 94-95.

contravenes OPS policy. All of the evidence points to the fact that Constable Lord disobeyed a lawful order, namely sections

23 to 25 of the OPS policy on “Arrest/Custody/Courts”.

91. In his decision the Hearing Officer makes no findings about this question. The Hearing Officer did not consider the elements of insubordination or deal with the evidence about this charge. The Hearing Officer failed to provide any support for his conclusion that Constable Lord was not guilty of insubordination. We find this to be unreasonable and an error of law.

92. For the foregoing reasons we revoke the Hearing Officer’s finding of not guilty and find Constable Lord guilty on the charge of insubordination.

Adequate Reasons for Decision

93. Since the Supreme Court of Canada decision in Baker v.

Canada (Minister of Citizenship and Immigration), [1999] 2

S.C.R. 817, the value and importance of adequate reasons for decision has been made clear to tribunals across the country. Justification, transparency, and intelligibility are the hallmarks of sufficient reasons.

94. Reasons for decision help the parties know that there has been a fair assessment of the facts and the law in their case. Procedural fairness requires that there be sufficient reasons so that reviewing bodies are able to review and scrutinise the decision. Neinstein, supra.

95. In part because appellate bodies do not see the witnesses testify and do not hear “live” evidence, the trier of fact must accept that the preparation of thorough and clear reasons for the decision is part and parcel of their mandate. Via Rail Canada Inc. v. Canada (National Transportation Agency),

2000 CanLII 16275 (FCA), 2000 CarswellNat 2531 (F.C.A.).

adequate reasons in the following ways:

• He did not provide findings of fact on the main issues.

• He did not include the analysis behind his decisions. There was no “why” to his “what”.

• Having not considered very important and relevant evidence, he did not explain why.

• His findings on credibility were based on facts that were not salient to the elements of the offence.

97. Therefore, we find that the Hearing Officer failed to provide adequate reasons for finding Constable Lord not guilty on both charges of misconduct. This amounts to a breach of procedural fairness.

Conclusion

98. We grant the appeal, revoke the Hearing Officer’s decision, and substitute our finding that Constable Lord is guilty on both charges, namely: (1) unlawful or unnecessary exercise of authority and (2) insubordination.

Submissions on Penalty

99. We have not made an assessment on penalty because this issue was not addressed in submissions before us or in the decision of the Hearing Officer. As a result, we request submissions on penalty from the parties according to the following schedule:

a. 10 business days from the release of this decision, Constable Lord will provide written submissions on penalty to the Commission and to the other parties.

b. 10 business days from the day that Constable Lord’s submissions are received, or are due, whichever date is

written submissions on penalty.

c. Constable Lord will submit his written reply, if any, 5 business days after the receipt or due date, whichever first occurs, of the OPS and Appellant’s submissions on penalty.

DATED AT TORONTO THIS 8th DAY OF JULY, 2011

David C. Gavsie Zahra Dhanani

Chair, OCPC Member, OCPC