Burrows v. Ontario Provincial Police, 2012 CanLII 102115

OCPC-#12-12

ONTARIO CIVILIAN POLICE COMMISSION

IN THE

MATTER OF

THE

POLICE SERVICES

ACT,

R.S.O.

1990,

C. P.15, AS

AMENDED

Citation: Burrows v. Ontario Provincial Police, 2012 ONCPC 13

BETWEEN:

PROVINCIAL SERGEANT S.C.

-and-

(SCOTT)

BURROWS APPELLANT

ONTARIO PROVINCIAL POLICE

RESPONDENT

DECISION

Panel:

Hearing Date:

Dave Edwards, Vice-Chair

John Rodriguez, Member

June 26, 2012

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, ON M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Appearances:

Mr. William R. MacKenzie, Counsel for the Appellant

Superintendent Michael Shard, Counsel for the Respondent

Introduction

1. Sgt. Scott Burrows (also the “Appellant”) has been a police officer with the Ontario Provincial Police (OPP) since 1994 and a Sergeant since 2006.

2. On July 26, 2011, the Appellant was found to have committed one count of Discreditable Conduct contrary to the Code of Conduct in the Schedule to Ontario Regulation

268/10 as amended, enacted under the Police Services Act, R.S.O. 1990, c.P. 15 as amended (the “Act”).

3. In her Decision on Penalty dated October 14, 2011, Supt.

Robin McElary-Downer (the “Hearing Officer”) imposed a penalty against the Appellant of demotion in rank from Sgt. Level One to Sgt. Level Two for a period of sixteen (16)

months. At the end of the sixteenth month, the Appellant

would be returned to Sgt. Level One.

4. In addition, the Hearing Officer ordered Sgt. Burrows to attend and actively participate in a recognized anger management program and to provide proof of his attendance to his Commander.

5. Sgt. Burrows appeals both the finding of Discreditable

Conduct and the penalty.

Summary Decision

6. For the reasons set out below, we dismiss the appeal.

The Disciplinary Hearing

7. The hearing was held on June 13, 14 and 15, 2011 in Orillia, Ontario.

8. Sgt. Burrows denied the allegations set out in the Notice of

Hearing.

9. Six witnesses gave evidence at the hearing and fifteen

Exhibits were filed.

10. The allegation that the Appellant verbally and/or physically assaulted his spouse, Jennifer Burrows, on three specific occasions formed the basis for the Discreditable Conduct charge.

11. Jennifer Burrows’ testimony regarding the three occasions can be summarized as follows:

a) On January 5, 2009, she had a 5:30 p.m. appointment to be induced into labour. The Appellant was aware of the appointment. He decided to exercise in their basement before he drove her to the hospital. Approximately fifteen to twenty minutes before the 5:30 p.m. appointment Jennifer Burrows called downstairs several times for the Appellant. When he failed to respond she carried a microwave to the basement (which she had asked him to take downstairs several times). She found the Appellant playing PAC MAN. The Appellant then took a shower. Jennifer Burrows grabbed her luggage and got into the car to wait for her husband. She was angry with the Appellant. While being driven to the hospital the Appellant punched her in the breast;

b) In August 2009, in the early hours of the morning, she took the Appellant’s cell phone downstairs to check on his voice messages. When she returned to the bedroom she accidently knocked over a toy and woke the Appellant. He noticed that his cell phone was missing. He got out of bed and placed his hands on her shoulders and pushed her down to the floor; and

c) In November 2009, when she confronted the Appellant in their laundry room about certain real estate transactions, he grabbed her hand and pulled it behind her back. He then punched her twice in the chest and forced her to the ground.

12. The Appellant’s testimony regarding the three incidents can be summarized as follows:

a) On January 5, 2009, while he was driving Jennifer Burrows to the hospital she became angry with him. She was upset that she might be late for her appointment with the doctor to be induced into labour. The Appellant was not concerned because doctors were always late for appointments and they arrived at the hospital parking lot by the appointed hour. She punched him in the side of the head. He said that he attempted to block the blow and, if she was hit, it was due to his attempt to block another blow;

b) In August 2009 Jennifer Burrows came upstairs to their bedroom at 3:00 a.m. and woke him up to discuss his telephone messages. She was furious about certain numbers which she found on his account. He said that he went downstairs with her and explained the various messages, after which he went back up to bed and she stayed downstairs. He testified that he did not push Jennifer Burrows to the floor; and

c) In November 2009 he left the home to return a borrowed circular saw. When he returned he found his two boys crying and immediately thought of his blackberry. He looked for it, but could not find it. He went outside and found Jennifer Burrows sitting in Mrs. MacNeil’s kitchen (the next door neighbour). Jennifer Burrows threw the blackberry at him and then stormed out of the house. He returned home

and went into the laundry room to retrieve his gym bag. He was packing his bag when Mrs. Burrows came in to the room. She was angry. She attacked him, punching, kicking and scratching him. He gave her a bunny punch to get away from her. She moved backwards. He grabbed his bag and drove immediately to his mother’s house.

13. These matters were brought to the attention of the York Regional Police Service as a result of an allegation by Jennifer Burrows that her estranged husband, Sgt. Burrows, had removed property from her garage. During an interview about that allegation Jennifer Burrows also gave Detective Kevin Byrnes details of the incidents which gave rise to the charge of Discreditable Misconduct.

14. Mrs. Donna MacNeil, a next-door-neighbour, and Mrs.

Katherine Peck, the mother of Jennifer Burrows, testified that the marriage was troubled. Specifically, Jennifer Burrows was distrustful of the Appellant and constantly checked his cell phone messages. Also, the couple argued often. They had never witnessed the Appellant physically assaulting Jennifer Burrows. However, they had seen bruising on Jennifer Burrows’ arm and chest. Mrs. MacNeil also witnessed an interaction between the Appellant and Jennifer Burrows where Jennifer Burrows “cowered away “ from the Appellant, who was upset because she had taken his cell phone to check his messages.

15. The Appellant produced a series of e-mails which were filed as Exhibit 13. He testified that these showed that the aggressive party in their relationship was Jennifer Burrows. He testified that he neither deleted e-mails from the home computer, nor did he cut and paste or change them in any way.

16. Jennifer Burrows testified that these e-mails were edited and fabricated. Some of the wording contained in the e-mails was not the type of wording that she would use. Further,

some e-mails were in bold print and she never bolded the text when she wrote.

17. Sheila Burrows, mother of the Appellant, testified that the Appellant came to her home in Markham the third week of November 2009 after 8 p.m. She said that the Appellant told her that he and his wife had an altercation in the laundry room and that she kicked and scratched him. She saw scratches on his arm.

18. The Hearing Officer found that the Appellant had committed one count of Discreditable Conduct and ordered his demotion to Sgt. Level Two for a period of sixteen months, following which he would be returned to Sgt. Level One. Further, the Hearing Officer ordered the Appellant to attend and actively participate in a recognized anger management program and to provide proof of his attendance to his Commander.

Appellant’s Submissions

19. At the beginning of the appeal hearing, Mr. MacKenzie tabled an addendum to his Book of Authorities. Cox v. Ontario Provincial Police, (January 23, 2012, OCPC #12-06).

20. Mr. MacKenzie submitted that the Hearing Officer committed three errors of law:

a) She misapprehended the evidence by failing to consider evidence relevant to a material issue;

b) She failed to apply the proper legal threshold to the findings of credibility; and

c) Her decision lacked a sufficient evidentiary foundation upon which to find the Appellant had committed Discreditable Conduct.

21. Mr. MacKenzie submitted the following examples of misapprehension of evidence by the Hearing Officer:

a) A criminal charge had been laid against Sgt. Burrows and, at the preliminary hearing, Mrs. Burrows was a witness. Justice Kenkel (of the Ontario Court of Justice), found her “off-putting”, “disingenuous” and “incredible”. The Crown withdrew the charge. The Hearing Officer misapprehended the Criminal Court evidence by failing to give any weight to Justice Kenkel’s comments, notwithstanding that she was hearing testimony from Jennifer Burrows on the same allegations that were before the Criminal Court;

b) On two occasions the Hearing Officer noted in her Decision that the Appellant criticized Detective Byrnes for not charging Jennifer Burrows for hitting him with her glove while being driven to the hospital. In fact the Appellant never admitted that Jennifer Burrows hit him with her glove. The Hearing Officer used this statement to corroborate the evidence of Jennifer Burrows and to dismiss the Appellant’s version of the event;

c) The Hearing Officer gave no weight to the testimony of Sheila Burrows. Sheila Burrows was uncertain as to what time the Appellant arrived at her home following the November incident in the laundry room. Jennifer Burrows also was uncertain as to the exact time of this incident. Mr. MacKenize submitted that the Hearing Officer found Sheila Burrows truthful, but gave no weight to her evidence due to a misapprehension of this evidence; and

d) The Hearing Officer failed to give the e-mail evidence any weight. While the Appellant conceded that the flow of e-mails was confusing, there was no logical basis for the Hearing Officer to question their authenticity.

22. Mr. MacKenzie submitted that in assessing credibility, the Hearing Officer applied a different level of scrutiny to the evidence of the Appellant than she did to Jennifer Burrows’

testimony. Cox v. Ontario Provincial Police, (2012, OCPC

#12-06).

23. He asserted that the follow demonstrated an unreasonable assessment of evidence by the Hearing Officer:

a) The finding that Jennifer Burrows was “credible and truthful” was an unreasonable assessment because:

i) she did not complain about the assaults until she was involved with the Appellant in a division of family assets and custody issues sixteen months after the incidents;

ii) she lied to her mother and friends about the cause of her bruises;

iii) Mrs. Peck described Jennifer Burrows as “getting into Sgt. Burrows’ face” whenever she confronted him;

iv) Detective Byrnes agreed that Jennifer Burrows was less than forthright at the preliminary inquiry;

v) the Crown Attorney described Jennifer Burrows at the preliminary hearing as “theatrical, and, at times, openly mocked the accused during the proceeding”; and

vi) Jennifer Burrows testified that she could not recall how the Appellant hit her, yet proceeded to describe the alleged assault, in the laundry room, three different ways.

b) The finding that the Appellant had not been truthful was an unreasonable assessment because:

i) he mentioned the many e-mails to

Detective Byrnes at the initial interview;

ii) when Detective Byrnes suggested to him that Jennifer Burrows had “flicked him with a glove”, he responded by saying “she punched me”; and

iii) Sheila Burrows had seen fresh scratches on Sgt. Burrows in November 2009 corroborating the Appellant’s evidence.

24. Mr. MacKenzie stated that the Hearing Officer lost her focus when she said she was satisfied, on clear and convincing evidence, that the Appellant had physically assaulted Jennifer Burrows on the three occasions as this was not a criminal proceeding.

25. He submitted that the analysis of the evidence made by the Hearing Officer does not justify the conclusions that she reached. The evidence, not the conclusion must be clear and cogent. Lloyd v. London Police Service (1999), O.P.R. 1345 (OCCPS) at p. 9.

26. With respect to the penalty, Mr. MacKenzie declared it to be harsh and excessive and noted that in Constable Shawana v. Ontario Provincial Police, September 28th, 2009, Decision of R.J. Fitches (Superintendent Ret’d) and Constable Buckland v. Ontario Provincial Police, September 28th, 2009, Decision of R.J. Fitches (Superintendent Ret’d) the officer received a twenty-four hour penalty. Sgt. John was demoted for twenty-four months. Sgt. W.D. John v. Ontario Provincial Police, (December 14th, 1995, Board of Inquiry). He submitted that the Hearing Officer should have imposed a more progressive penalty.

27. Mr. MacKenzie requested that the appeal be allowed and the finding of Discreditable Conduct be quashed.

Respondent’s Submissions

28. Supt. Shard reminded us that the Hearing Officer is in the best position to assess the credibility of a witness because she has the advantage of hearing and observing the witnesses. Therefore, we should not overturn a finding of fact or credibility unless the Hearing Officer’s conclusions cannot reasonably be support by the evidence. Blowes- Aybar v. Toronto Police Service, (August 12, 2003, OCCPS).

29. He submitted that the Hearing Officer followed a line of analysis that began with a marriage that was troubled. Jennifer Burrows’ had suspicions of infidelity regarding the Appellant. She often checked his phone records for evidence of phone calls to other woman. She would become angry and confront the Appellant.

30. He submitted that the Hearing Officer considered the witnesses’ testimony and explained why she accepted or rejected it.

31. Supt. Shard pointed out that:

a) Mrs. MacNeil’s evidence was not so much about bruising as it was about the Appellant coming over to her house and appearing angry and Jennifer Burrows cowering away from him. The Hearing Officer accepted her evidence as credible;

b) Mrs. Peck’s evidence about the microwave oven and the trip to the hospital was credible;

c) Mrs. Sheila Burrows’ testimony that she saw the scratches on the Appellant’s arm was accepted by the Hearing Officer as truthful. However, the Appellant testified that he went directly to his mother’s home after the incident. Jennifer Burrows testified that the incident occurred during the afternoon. Sheila Burrows testified that the Appellant did not arrive at her home until after dark

after 8 p.m. Based upon this discrepancy the Hearing Officer did not accept this evidence as corroborating the Appellant’s testimony;

d) Jennifer Burrows’ testimony that, while on the way to the hospital in January 2009, she flicked the Appellant with her glove made sense, while the Appellant’s version of a punch from her was unlikely given her pregnancy;

e) Jennifer Burrows’ evidence regarding the 3 a.m. bedroom confrontation with the Appellant who, being angry, forced her to the floor, made more sense than the Appellant’s testimony that he was calm and went downstairs to discuss issues; and

f) Jennifer Burrows’ evidence about the laundry room incident was that it happened quickly. The Appellant grabbed her arms, put them behind her back then put her down. The Hearing Officer concluded that her version was more believable than the Appellant’s testimony because a punch would have caused her to fall down the stairs and she did not.

32. With respect to penalty, Supt. Shard reminded us of the Commission’s approach to reviewing a hearing officer’s penalty decision: If there is no manifest error in principle, if the relevant factors were considered in assessing penalty, and if the penalty is within the acceptable range, then we must defer to the Hearing Officer and our duty is not to interfere. Galassi v. Hamilton Police Service (September 3,

2003, OCCPS, upheld [2005] O.J. No. 2301 (Div. Ct).

33. Mr. Shard submitted that the Hearing Officer took into consideration relevant factors in determining the appropriate penalty. These factors included, seriousness of the misconduct, deterrence, ability to rehabilitate, employment record and specific and general deterrence. Mr. Shard stated that the penalty imposed by the Hearing Officer was less

than was imposed in John v. Ontario Provincial Police, (December 14, 1995, Board of Inquiry).

34. Accordingly, Supt. Shard requested that we dismiss the appeal.

Reasons for Decision

35. Sgt. Burrows appeals the finding of Discreditable Conduct and the resulting penalty.

36. The standard of review is clear. A hearing officer must interpret and apply the law correctly. His/her findings of fact must be reasonable. Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9.

37. Stated another way, the Commission’s role on appeal is “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”. Barlow and Ottawa Police Service, (August 15, 2011, OCPC).

38. As deference should be granted to hearing officers’ findings of credibility, these findings are reviewed from a standard of reasonableness. Lloyd v. London Police Service, supra.

39. Hearing officers are not legally trained. The Commission must not focus on mistakes that do not affect the decision as a whole. We must not be overly critical of the language used by a hearing officer. Galassi v. Hamilton Police Service, supra.

40. The Appellant raises three issues:

a) Whether the Hearing Officer misapprehended the evidence by failing to consider evidence relevant to a material issue;

b) Whether the Hearing Officer erred in her findings of credibility; and

c) Whether the Hearing Officer’s decision lacks a sufficient evidentiary foundation upon which to find that the Appellant committed Discreditable Conduct on clear and convincing evidence.

41. We will deal with each issue in turn.

42. As to the first issue, the question is whether the Hearing Officer misapprehended the evidence relevant to a material issue. This is a question of fact and the standard of review is reasonableness.

43. The Appellant provides four examples, of what he considers to be misapprehension of evidence by the Hearing Officer.

44. He submits that the Hearing Officer on two occasions in the decision states that the Appellant criticized Detective Byrnes for not charging Jennifer Burrows for hitting the Appellant with her gloves. However, the Appellant in his statement never admitted that she hit him.

45. In fact, as the Hearing Officer notes on page 12 and 13 of the July 26, 2011 Decision, Detective Byrnes testified that after the Appellant’s voluntary statement was completed, but before Detective Byrnes and the Appellant parted, the Appellant made such a statement. Detective Byrnes reflected that fact in his notebook.

There was no misapprehension of this evidence.

The second purported misapprehension of evidence Hearing Officer advanced by the Appellant relates testimony of Sheila Burrows, the Appellant’s mother.

by the to the

48. The Appellant testified that he proceeded to his mother’s home immediately after an incident with Jennifer Burrows during which Jennifer had scratched him.

49. Shelia Burrows testified that the Appellant arrived at her home at least after 8 p.m. He recounted his version of the incident to his mother and demonstrated the scratches which he alleged Jennifer Burrows had caused.

50. Jennifer Burrows testified that the incident with the Appellant occurred in the “mid-early afternoon”.

51. The issue facing the Hearing Officer was what weight to give Sheila Burrow’s testimony as it related to corroborating the Appellant’s testimony that Jennifer Burrows had scratched him; not whether Sheila Burrows was telling the truth as she believed it to be.

52. Based upon the evidence set out above and the discrepancy in the timelines, the conclusion of the Hearing Officer to give no weight to Sheila Burrow’s testimony as it related to corroborating the Appellant’s testimony that Jennifer Burrows caused the scratches on his body lies within the range of reasonable outcomes.

53. The third example of misapprehension of evidence put forward by the Appellant relates to documents which the Appellant testified were emails between himself and Jennifer Burrows.

54. The Hearing Officer stated on pages 15 and 16 of her

Decision:

I am therefore not satisfied Exhibit #13 represented a true picture of the email exchanges and I am further not convinced they were entirely authentic. This finding will weigh in my decision with respect to Sgt. Burrows’ credibility.

55. At page 15 of her Decision the Hearing Officer reviewed the e-mails and noted that they “lacked sequential order” and that the “conversations did not flow”.

56. Jennifer Burrows testified that the Appellant had altered the e-mails.

57. Based upon the evidence the Hearing Officer’s finding is reasonable.

58. The fourth example of evidence which the Appellant contends that the Hearing Officer misapprehended was her failure to consider the findings of Justice Kenkel. The Appellant had been charged criminally in relation to the incidents which form the substance of the Discreditable Charge. At the criminal trial the Justice found Jennifer Burrows to be “off- putting, disingenuous and incredible” when she testified before him.

59. We will deal with this issue when we examine the issue of credibility.

60. The second issue advanced by the Appellant is whether the

Hearing Officer erred in her findings of credibility.

61. The identification and the application of the correct legal basis for determining credibility are questions of law and the standard of review is correctness. The specific findings of credibility are a question of fact and the standard of review is reasonableness.

62. Both counsel agreed that this case turns on the issue of credibility. Only the Appellant and Jennifer Burrows were present during the alleged altercations. It is clear from the Decision that the Hearing Officer was guided by the “O’Hallaran test”; indeed on page 17 she quotes from Faryna v. Chorny (1952) 2 D.L.R. (B.C.C.A.) in which Justice O’Hallaran described the test as follows:

The credibility of interested witnesses, particularly in a case of conflict in evidence must be reasonably subjected to an examination of the consistency of their stories with the possibilities that surround the currently existing

of a witness in such cases must be its harmony with the preponderance of the probabilities, which a practical and informed person would readily recognize as reasonable in that place under those conditions.

63. The Hearing Officer has identified the correct legal test for determining credibility. She must, however, not only enunciate the correct legal test; she must apply it correctly.

64. From our review of the Decision we find that it is evident that she properly applies the O’Hallaran test and reaches reasonable decisions with respect to the credibility of witnesses.

65. Beginning on page 12 of her Decision she systematically deals with the testimony of each witness. She makes her findings of credibility and states the reasons for each finding. By dealing first with all of the witnesses except for the Appellant and Jennifer Burrows, the Hearing Officer makes findings of fact, which, in part, allows her to later examine “the consistency of their stories with the possibilities that surround the currently existing conditions.”

66. The Appellant had testified that he was the victim of frequent physical abuse; “My wife hit me continually throughout my marriage” (p. 52 statement to Detective Byrnes, Tab 14

Record of Proceedings); “I don’t recall how many times my wife tried to kick or hurt me” (Transcript at p. 133 June 14,

2011). Further, “[t]hat was my whole marriage where I

diffused those situations because I was smart enough to know what was going to trigger my wife...” (p. 45 Transcript of Interview with Detective Byrnes, Tab 14 Record of Proceedings).

67. The Hearing Officer analyzed the evidence of Mrs. MacNeil and concluded that she was credible and honest. Her evidence that the anger which the Appellant directed at Jennifer Burrows ”was severe and frightening”; that Jennifer Burrows “cowered away” from the Appellant (p. 49 June 13,

Jennifer Burrows on several occasions, was accepted by the

Hearing Officer.

68. Mrs. MacNeil’s evidence paints a portrait of a relationship which was not consistent with the Appellant’s testimony that he was a victim. This evidence demonstrated that the story of the Appellant that he was the victim was not “consistent with the possibilities that surround the currently existing conditions”. This was a factor in the determination of the Appellant’s credibility.

69. Similarly, the Hearing Officer found Mrs. Peck to be a credible witness. The Hearing Officer utilized Mrs. Peck’s testimony to bolster the credibility of Jennifer Burrows regarding her testimony about the hospital incident and to discredit the Appellant’s version of those events.

70. The Appellant had argued that the Hearing Officer’s statement that she found Mrs. MacNeil to be “honest and credible and will weigh her testimony accordingly in my decision”, found at page 13 of the Decision was ambiguous. Based upon the Hearing Officer’s assessment that the witness was honest and credible, it is clear that significant weight was accorded that testimony. There is no ambiguity. The Hearing Officer made similar comments about Detective Byrnes and Mrs. Peck.

71. We are reminded of Galassi, supra, and the direction given to us to not be overly critical of the language of the Hearing Officer and that we should review the decision as a whole.

72. As we previously noted, Sheila Burrows’ testimony, as it related to corroborating the Appellant’s testimony that Jennifer Burrows caused scratches on his body, was given no weight. The Hearing Officer noted a significant time delay between when the evidence indicated the incident occurred until the Appellant arrived at his mother’s home. The Appellant testified that he went directly to his mother’s home. The Hearing Officer found that she could not use

Sheila Burrows’ testimony to corroborate the Appellant’s testimony.

73. Having developed the context through an examination of the testimony of these witnesses, the Hearing Officer next analyzes Jennifer Burrows’ testimony.

74. The Hearing Officer compared Jennifer Burrows’ testimony to the other evidence and concluded at page 15 of her Decision: “...I found Jennifer’s’ testimony consistent with other testimony”.

75. The Hearing Officer examines Jennifer Burrows’ testimony for internal consistency and for consistency to the evidence of others and at page 15 of her Decision she concludes that “I am therefore convinced Jenifer was truthful when she testified Sgt. Burrows placed his hands on her shoulders and pushed her to the floor.”

76. The Hearing Officer was mindful of Justice Kenkel’s comments and refers to his comments and the court transcript (Exhibit #12). Her task, however, is to weigh all of the evidence before her. She does so and at page 16 of her Decision she concludes “I found quite the opposite...She made no effort to hide her imperfections. I found she delivered her evidence with candour and honesty”.

77. Based upon the evidence that is a reasonable finding.

78. The Hearing Officer next turns to the testimony of the Appellant. She describes the Appellant’s testimony as it relates to the three incidents and finds his testimony unbelievable and not consistent with the preponderance of possibilities.

79. For example, the Appellant had testified that when he was confronted by Jennifer in the “wee hours” of the morning about his cell phone that he calmed her down and then went downstairs to explain the telephone calls on his account, notwithstanding that he had to work at 7 a.m.

80. The Hearing Officer heard credible evidence from Mrs. Peck that the Appellant became extremely angry when Jennifer Burrows took his phone on a previous occasion. This bolstered Jennifer Burrows’ version of that incident that the Appellant became enraged and pushed her to the floor.

81. Based upon the evidence, the decision of the Hearing Officer to reject the testimony of the Appellant with respect to this incident was a reasonable one.

82. The Hearing Officer went through a similar process with respect to the incident on the way to the hospital and the laundry room incident. Based upon the evidence and utilizing the O’Hallaran test, those findings fall with the range of reasonable outcomes.

83. The third issue raised by the Appellant was whether the Hearing Officer’s Decision lacked a sufficient evidentiary foundation upon which to find him guilty on clear and convincing evidence.

84. The identification and application of the correct standard of proof are legal issues and the standard of review is correctness. The finding that the evidence satisfies the standard of proof is a question of fact and the standard of review is reasonableness.

85. Section 84 of the Act provides that the charge must be proved on clear and convincing evidence. While previous cases have treated this as a standard of proof, it is clear that it is the evidence supporting the finding must be clear and cogent. Lloyd v. London Police Service, supra, at p.9.

86. Section 84 of the Act describes the nature of the evidence required to satisfy a standard of proof, rather than enunciating a standard of proof.

87. The Supreme Court of Canada in F.H. v. McDougall 2008 SCC

53 supports this conclusion.

88. At para 46 of McDougall, supra, the Court determined that in a civil proceeding there was only one standard of proof---the balance of probabilities---but that the “evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”.

89. In the civil context, absent an altered statutory standard of proof, the Supreme Court has decreed that a fact must be proven on balance of probabilities utilizing clear, convincing and cogent evidence.

90. The Appellant did not advance any argument specific to this issue, but rather submitted that the other errors mentioned above meant that the evidence did not support the Hearing Officer’s finding that the Appellant on clear and convincing evidence had committed Discreditable Conduct.

91. The Hearing Officer concluded on page 17 of her Decision that she “...was satisfied, based on clear and convincing evidence, Sgt. Burrows physically assaulted Jennifer on three occasions”.

92. The Hearing Officer correctly turned her mind to the nature of the evidence require by the Act and McDougall, supra, for a finding of Discreditable Conduct. Her application of that test is reasonable.

93. Counsel for the Appellant had also argued that the Hearing Officer did not have the authority to find that the Appellant had “physically assaulted Jennifer” and therefore the finding was unreasonable.

94. It is clear that the particulars of the charge relate to assaults.

Although the Hearing Officer could not find the Appellant guilty of assault in the criminal context, we are of the opinion that a finding that the assault occurred is inextricably interwoven into the Discreditable Conduct charge.

95. The Hearing Officer’s finding that the Appellant committed one count of Discreditable Conduct “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law”, Dunsmuir, supra.

96. Accordingly, we dismiss the appeal of the finding of

Discreditable Conduct.

PENALTY

97. The failure to identify and apply the correct factors for assessing penalty are questions of law and the standard of review is correctness. Findings based upon the evidence with respect to those principles are questions of fact and the standard of review is reasonableness, Dunsmuir, supra.

98. As this Commission has previously stated in Barlow, supra, at p. 45:

Past decisions of the Commission have described this standard of review for penalty appeals in a less technical way, noting that the Commission’s role on appeal is not to second-guess the decision of a hearing officer but to review their 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.

99. Counsel for the Appellant argues that the penalty is harsh and excessive given all of the circumstances, and that the Hearing Officer did not apply the principles of progressive discipline and equality of penalty.

100.We find that the Hearing Officer identified and applied the correct principles for assessing penalty.

101.She determined that the misconduct was “most serious in nature”. She noted that 16 years ago in John vs. Ontario Provincial Police, Board of Inquiry, supra, domestic violence

was a matter to be taken very seriously. In the intervening years the OPP’s view of the seriousness of domestic violence had heightened, not lessened.

102.Her conclusion that the potential damage to the OPP’s reputation was an aggravating factor is a reasonable one.

103.She considered the Appellant’s ability to rehabilitate and the likelihood of recurrence. She noted that the remaining link between the Appellant and Jennifer Burrows was support and child arrangement. She viewed the Appellant’s apology as stopping “short of genuine” and expressed concern as to whether the Appellant recognized that he has a fundamental character flaw—an inability to control his anger—which reduced his potential to rehabilitate.

104.She analyzed his employment history at page 8 of her Decision and concluded “I believe that he has been a valued member of the OPP and will continue to contribute in a meaningful and positive manner. I consider this a significant mitigating fact and will weigh it accordingly in the penalty disposition.”

105.The Hearing Officer considered the issue of general and specific deterrence. She noted that the incidents spanned 11 months and three incidents which could not be attributed to an aberration of character. At page 9 of the Penalty Decision she stated that she “remained unconvinced that Sgt. Burrows has taken responsibility for his misconduct. I therefore believe that a meaningful and significant sanction must follow to message to Sgt. Burrows that his misconduct was completely out of the realm of acceptance”.

106.At page 9 of the Penalty Decision she found that it was important to send a “very strong message” to officers that “significant sanctions will follow those who engage in misconduct involving domestic violence”.

107.Lastly, the Hearing Officer was aware of and considered the economic consequences of a demotion upon the Appellant.

108.In summary, we find that the Hearing Officer identified and considered the correct factors in assessing penalty, and that the penalty imposed and the reasons in support thereof fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law”.

109.We therefore dismiss the appeal of penalty.

110.Accordingly, we dismiss the appeal.

DATED AT TORONTO THIS 13th DAY OF AUGUST, 2012

Dave Edwards John Rodriguez

Vice-Chair Member