McRea v. Barrie Police Service, 2012 CanLII 102121

OCPC # 12-05

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

Citation: McRea v. Barrie Police Service, 2012 ONCPC 5

-and-

Panel: Zahra Dhanani, Member Hyacinthe Miller, Member

Hearing Date: September 6th, 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

Mr. Leo Kinahan, Counsel for the Appellant
Mr. David Migicovsky, Counsel for the Respondent

Introduction

On May 13, 2010 Constable McRae (the "Appellant") was found guilty of one count of Insubordination contrary to s. 2 (1)(b)(ii) of the Code of Conduct set out as a schedule to Ontario Regulation 123/98, as amended, enacted under the Police Services Act, R.S.O. 1990, c.P.15, as amended (the "Act").
On August 20, 2010, Superintendent Neale T. Tweedy (Ret.) (the "Hearing Officer") imposed a penalty of a forfeiture of 36 hours of work.
Constable McRae is appealing the finding of guilt. He has requested that we overturn the conviction and substitute a finding of not guilty.

Summary Decision

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

Background

The Appellant joined the Barrie Police Service (the “Service”) in May 2002. He began his policing career in 1985 with the York Regional Police Service. He has worked in uniform patrol, intelligence and several other branches. He worked as a detective constable in the Criminal Investigations Branch until September 2009.
On October 15, 2007, the day the alleged misconduct occurred, Constable McRae held the position of Detective Constable in the Criminal Investigation Bureau (“CIB”) of the Service where he had worked for the previous two and a half years in a plainclothes capacity. He was working the day shift from 7:00am to 7:00pm.
The Record of Misconduct – Not of a Serious Nature or Unsatisfactory Work Performance (the “Record of Misconduct”), dated November 9, 2007, outlined the essential elements of the events giving rise to the charge. The particulars were as follows:

On Monday October 15, 2007, Detective Read was in the position of Acting Detective Sergeant filling in for D/Sgt Sheffer who was on vacation. Read was also assisting in the Flanagan homicide investigation and was working past his usual shift of 1500 hrs.

At 1636 hrs, Read walked into the offices of the Criminal Investigations Branch and noted that the only person present was Administrative Assistant, D Stewart, who was working overtime on the Flanagan homicide.

Read at this time observed on the desk belonging to Detective Constable McRae a Glock Service Pistol contained in a plainclothes holster with a magazine inserted into the firearm, beside the holster and firearm was a pair of stainless steel handcuffs secured in a plainclothes pouch.

Read seized the firearm and utilizing the proving barrel, removed the magazine which contained 14 rounds of ammunition and proved the weapons safe, in proving the weapon safe, a round of ammunition was extracted from the chamber. Read noted that the serial number of the service pistol was HUE166.

At 1705 hrs, Read noted that Detective Constable McRae returned to the General Assignments Office and sat at his desk. At 1710 hours, Read asked D/CST McRae to attend into the D/SGT's office and he did so. Read inquired if the service pistol was in fact, D/CST McRae's, McRae responded he did not know, left the office for approximate 3 minutes to search his desk and return to say "it must be mine; I don't normally leave it on my desk, that is not my normal operating procedure".

Read advised McRae that no firearm is to be left out unsecured and reminded McRae of the Services Procedure. Read also advised that this incident could have been more serious if a cleaner or non police personnel had come across the firearm.

This matter is a serious breach of procedure 19 article 6.1.3 which states "on-duty members, while in a police facility shall ensure the security of their firearm by either wearing it at all times or storing it in their personal locker or authorized gun locker". D/CST McRae is also a very experienced officer and it is expected that he would take better care and control of his service firearm or any firearm for that matter and ensure that a loaded firearm is secured properly and not left out on the desk in an open office.

A/D/Sgt. Read made notes about the incident in his memo book. On either October 16 or 17, 2007, he advised Staff Sergeant Holden of the Professional Standards Branch (the “PSB”) about what had occurred. He asked whether the PSB was required to conduct an investigation. The response was that the PSB would not be involved. A/D/Sgt. Read was further advised that he should exercise his supervisory discretion and document the matter if he felt it was warranted.
On October 18, 2007 A/D/Sgt. Read detailed the events of October 15 in the Record of Misconduct. The report was forwarded to PSB Inspector James Farrell. A/D/Sgt. Read met with the Inspector on October 22, 2007 to discuss the documentation.
On November 9, 2007, the Appellant met with Inspector Farrell and two members of the PSB on an unrelated matter. During that meeting, Inspector Farrell offered the Appellant a copy of A/D/Sgt. Read’s report on the October 15 incident, indicating that the matter could be resolved informally. The Appellant was asked if he wanted to respond. The Appellant indicated that he believed the matter had already been dealt with on October 15 by way of the verbal admonishment from his supervisor. Inspector Farrell suggested that the Appellant sign the document and accept a penalty of forfeiture of 12 hours off.
The Appellant requested time to obtain legal advice about the documentation and the proposed penalty before responding. He also alluded to concerns that A/D/Sgt. Read had set him up, as he was aware that the lock on the Appellant’s desk was defective. The allegation was that someone else could have removed the Appellant’s firearm from the desk in his absence.
On November 13, 2007, Inspector Farrell e-mailed the Appellant: “As I did not hear from you by the end of your last night shift as directed, I will be drafting your Notice of Hearing for you (sic) PSA charge.”
On November 19, 2007, Staff Sergeant Holden sent the Appellant an email indicating that the PSB would be commencing an investigation into the October 15 incident and the allegations he had made about A/D/Sgt. Read. The Appellant was directed to provide a duty report and his notes relating to the events of October 15.
On February 29, 2008, following completion of the PSB investigation, the Appellant was served with a Notice of Hearing for one charge of insubordination.

Disciplinary Hearing – Preliminary Motion

On February 25, 2009, Mr. Kinahan, on behalf of Constable McRae, brought a motion to stay the proceedings and dismiss the charge. His arguments were as follows:

➂ the Chief of Police failed to follow the notice provisions with respect to a chief’s complaint, as required by s. 56 (7) of the Act.

➂ between October 15 and production of the Record of Misconduct on November 9, 2007, the Appellant was not aware that he was in any professional jeopardy. Further, A/D/Sgt. Read had left him with the impression that no further action would be taken and that the matter was concluded.

➂ Inspector Farrell was in violation of Service procedure which allowed the Appellant seven days within which to respond. Further, the Appellant’s silence could not be interpreted as indicative of his having made a decision.

➂ no investigation commenced after the November 9 meeting.

➂ an adverse inference could be drawn because neither A/D/Sgt. Read nor Inspector Farrell were called to testify.

He requested an order that the Notice of Hearing be quashed because the tribunal had lost jurisdiction and procedural fairness rights had been compromised.

In response, Mr. Migicovsky asserted that:

➂ the November 19 email from PSB stated that an investigation was being commenced since no acknowledgement of consent to informal resolution had been received.

➂ the formal meetings served as proper notice. Formal notice pursuant to s. 56(7) was not required until November 19, at the commencement of the investigation. Further, s. 56 (7) has no application to informal resolution.

➂ alternatively, the Appellant received verbal notice on October 15 and in writing on November 9, 2007 during the attempt at informal resolution. Further, s. 77 does not impose a requirement for written notice, where it otherwise does not exist.

In his twenty-nine page decision, the Hearing Officer analysed the law with respect to the internal complaint process and how it applied to the facts before him. In his Ruling on Defence Motion (April 2), the Hearing Officer concluded that Service “management was using a documentary vehicle to informally resolve the matter with consent of the officer” and that “discretion, including its timing, belongs to the chief of police…” He further found that “the discretion of the chief had not yet been exercised to initiate a complaint on October 15.”
The Hearing Officer noted that, while “it would have been preferable for Acting Detective Sergeant Read to tell Detective Constable McRae he would seek advice about whether any future discipline, informal or otherwise would be considered, the fact that he did not, cannot be said to offend the Act.” He also noted, on page 23, that while Inspector Farrell was quick to direct the matter to a hearing, there was no indication the Appellant had requested more time to consider the offer of informal resolution.
The Hearing Officer concluded that notice under s. 57 occurred in writing on November 9, 2007 and further written notice was provided on November 19. The Hearing Officer found that the Appellant’s procedural fairness rights had not been breached and he denied the motion.

Disciplinary Hearing

The disciplinary hearing proceeded on April 6th and 7th, 2010. Four witnesses testified and there were 36 exhibits entered. The exhibits included Barrie Police Service Procedures, the PSB investigative report, emails, various notices and affidavits, correspondence and statements.
On May 13, 2010, the Hearing Officer released his decision with respect to the insubordination charge. He found clear and convincing evidence that the Appellant was guilty.
Submissions on penalty were heard on August 20, 2010.
By way of a letter dated September 8, 2010, counsel for the Appellant requested that the Hearing Officer postpone releasing his judgment on penalty and that the proceedings be stayed. During a conference call on September 17, 2010, Mr. Kinahan argued the Appellant had not been provided with information relating to a discreditable conduct conviction against A/D/Sgt. Read, 15 years previously. In dismissing the Appellant’s request, the Hearing Officer stated that the prior discipline did not rise to the level of being “so wrong that it would violate the conscience of the community, fundamental justice or fair play…”
On September 17, 2010 the Hearing Officer released his decision on penalty, ordering that the Appellant forfeit 36 hours of work.
This is an appeal of the finding of guilt.

Preliminary Matter

Mr. Kinahan brought forward a motion to introduce new or additional evidence. This evidence related to a discreditable conduct conviction against A/D/Sgt. Read dated December 1995.
After May 13, 2010, when the Hearing Officer found Constable McRae guilty of insubordination but before the sentence was rendered, counsel for the Appellant received information that the main witness for the prosecution had previously pled guilty to and had been convicted of discreditable conduct.
Counsel for the Appellant asserted that the information spoke to the credibility of a key witness and had the potential to affect the Hearing Officer’s decision. A/D/Sgt. Read stated that he had retrieved the Appellant’s unsecured firearm that was in plain view on his desk in the C.I.B office. He was the only one to testify he had seen the firearm there. A/D/Sgt. Read had then made notes of the incident and prepared the documentation relating to the misconduct charge against Constable McRae.
Mr. Kinahan argued that the Service and A/D/Sgt. Read were aware that all police officers had been instructed to disclose any relevant disciplinary history prior to any proceeding in which they would be a potential witnesses. R. v. McNeil, [2009] S.C.C. 3.
Mr. Migicovsky argued that the disciplinary record the Appellant sought to have admitted was not properly in his possession. Further, the disciplinary record was not obtained through a proper request for third party documents. Disclosure of a confidential employment record would be contrary to A/D/Sgt. Read’s privacy rights. He argued that the Hearing Officer had not completed an analysis of the factors as required by R. v. O’Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3rd) 1 (S.C.C.).
Counsel for the Respondent submitted that the requirement for officers to disclose their disciplinary records when providing testimony applied only to criminal proceedings and not to the disciplinary process, which is a labour relations matter. Burnham v. Metro Toronto Police Association, 1987 CanLII 42 (SCC), [1987] 2 S.C.R. 572 at paras. 3, 5.

Decision on the Motion

Appeals to the Commission are on the record. However, s. 70(5) of the Act permits us to receive new or additional evidence as we consider “just”. The Act does not set out what factors we are to take into account in our assessment of whether it would be “just” to receive such evidence.
However, on this issue, the Commission is guided by the four part test set out by the Supreme Court of Canada in R. v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at page 775:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal cases as in civil cases;

(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief; and

(4) it must be such, that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

We find that the evidence put before us does not meet the Palmer test. The information about the fifteen year old misconduct conviction does not have a decisive relationship to the issue of the Appellant leaving his loaded firearm unsecured on his desk, and is therefore not relevant. Further, any conclusions to be drawn from the historical incident would be speculative. During the teleconference of September 7, 2010, the Hearing Officer expressed concerns about the three-year delay disposing of a “simple prosecution”. He also stated:

I’m satisfied that the credibility of Acting Detective Sergeant Read has been fully explored and he has in my judgement withstood that test. I can’t see how receiving this information if it should have been disclosed would change anything in terms of my decision and the test is a very high one in that the court has stated to exercise such an exceptional authority a tribunal must be satisfied that the conduct in question is so wrong that it would violate the conscious of the community, fundamental justice and fair play.

We find that the proposed new or additional evidence, even if it had been accepted at the disciplinary hearing, would not have affected the result. The Hearing Officer addressed A/D/Sgt. Read’s testimony at some length in his decision. He stated that A/D/Sgt. Read “stood firm”, “denied personal animus towards Constable McRae” and acknowledged with explanation any inconsistencies in his written notes during his testimony.
We note that the Hearing Officer assessed the Appellant’s request to admit new or additional evidence on September 17, 2010, even though that request came after he had made a disposition on guilt. At that time, he properly concluded that it would not be just to accept the introduction of the new or additional evidence. We find this original decision to be reasonable and substantiated. We agree with the conclusion of the Hearing Officer.
The Appellant’s motion to introduce new or additional evidence is denied.

Appellant’s Submissions

Mr. Kinahan argued that the Appellant did not receive timely notice that his conduct was the subject of an investigation, as required by s. 56 (7) of the Act. Gage v. Ontario (Attorney General) 1992 CanLII 8517 (ON CTGDDC), [1992] O.J. No. 696 (Div. Ct.). Between the original incident on October 15, 2007 and November 9, 2007, when he was handed the Record of Misconduct, the Appellant had no idea that he was in professional jeopardy. Sipar and Schertzer et al. (Toronto Police Service) (November 29, 1999, OCCPS).
He asserted that the Hearing Officer erred in his Ruling on the Defence Motion when he determined that Constable McRae’s procedural fairness rights had been breached but not sufficiently compromised to halt the disciplinary process. Mr. Kinahan submitted that s.56(7) is a mandatory provision and that it was not up to the Hearing Officer to gauge the impact of the Appellant’s procedural fairness rights. Clarke and Peel Regional Police Service (June 18, 2007, OCCPS).
Mr. Kinahan argued that it was not clear when A/D/Sgt. Read made a determination that a PSB investigation was warranted. The Record of Misconduct outlines a number of facts which were not substantiated. He suggested that it was a serious omission for the prosecution not to call Inspector Farrell as a witness.
Counsel submitted that the Appellant had never received proper notice. He argued that it would be ludicrous to conclude that the November 13, 2007 email from Inspector Farrell informing the Appellant that a Notice of Hearing would be drafted, constituted notice. Counsel drew our attention to the Ruling on Motion dated November 14, 2007 of Hearing Officer Tweedy in Sergeant Deborah Lindsay and Oxford Community Police Service, in which he concluded that the statutory right of the officer to receive forthwith notice must be complied with, to allow the officer to understand management’s concerns and prepare a defence.
Counsel further argued that the Hearing Officer had no discretion with respect to determining if proper notice had been given. The November 13 and November 19 email communications cannot be characterized as proper notice, as the Appellant was informed that he would be charged prior to the investigation being commenced. The Appellant was within his rights not to respond. Mr. Kinahan noted that S/Sgt. Holden, in his testimony, had no recollection of officers receiving verbal notices that a PSB investigation would be commenced. Further, there was no documentation from Inspector Farrell asking the Appellant for his version of events.
He argued that the Hearing Officer erred by failing to find procedural unfairness in the manner in which the complaint and investigation were carried out. Re Giles and Halton Regional Police Force et al. (1981), 1981 CanLII 1955 (ON HCJ), 33 O.R. (2d) 666 (Div. Ct.)
Mr. Kinahan argued that the Hearing Officer’s reference to s. 58 of the Act shows that he completely misapprehended the evidence before him. Counsel submitted that the document Constable McRae was served with on November 9th, 2007 was intended to be used pursuant to s.64 (15) of the Act, and that the Hearing Officer wrongly imported the informal resolution process into the formal hearing process.
Counsel asserted that the Hearing Officer’s analysis of s. 58 and64 of the Act was inconsistent with the intent and actual framework of the legislation. He argued that it was incumbent on the Hearing Officer to deal with his reasoning with respect to the chronology of events that began on October 15 R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3rd) 193 (O.C.A.), Maguire and Peterborough- Lakefield Community Police Service, (July 28, 2008, OCCPS). Mr. Kinahan stated that the Hearing Officer gave no indication that he was troubled by the disputed emails, nor did he reconcile the sequence of events resulting from these disputed emails, including: the attempt at informal resolution, the communication to the Appellant that he would be formally charged, and the email confirming that an investigation would begin.
Mr. Kinahan questioned the sufficiency of particulars, arguing that there was no evidence the Appellant had ‘failed to store’ his firearm at a Service police building, contrary to Service Procedure 19.
Counsel asked us to find that there had been a loss of jurisdiction and to quash the Notice of Hearing.

Respondent’s Submissions

Mr. Migicovsky asserted that only in extraordinary circumstances should the Commission interfere with the findings of a hearing officer. The findings made by a hearing officer with respect to evidence or credibility should be accorded considerable deference. In Williams and Ontario Provincial Police (December 4, 1995 OCCPS), it was found that:

……In certain limited cases, it would be open to us to reach a different conclusion than the trier of fact. However, this must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the Adjudicator, as to the credibility of witnesses, cannot be reasonably accepted.

He argued that the Hearing Officer’s reasons should be read as a whole, and that we should not subject his decision to microscopic examination. He submitted that it is only necessary that the entirety of reasons support the Hearing Officer’s decision, not that every phrase extracted separately can be justified. Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247.
Counsel submitted that the Service was in compliance with s. 56 (7) of the Act, and that proper notice was given to the Appellant on the date of the incident and on November 9th, when Inspector Farrell gave him a copy of the Record of Misconduct and the Appellant offered the explanation that he had been set up.
Mr. Migicovsky stated that the Act outlines a way to resolve matters informally and expeditiously, without the need for a formal investigation. He submitted that s. 58 (4), which provides that no other provision of Part V of the Act applies to an informal resolution, negates the s. 56(7) requirement for notice.
Mr. Migicovsky submitted that the Hearing Officer found that prior to November 19, 2007, the matter was still in “the informal resolution stream.” With respect to the Record of Discipline being the incorrect format, he contended that the document was not determinative of the relevant legislative provision. He pointed out that there is no stipulated form for notice; rather, the substance of the complaint is what informs an appellant. Sommers v. Ontario (Civilian Commission on Police Services), [2005] O.J. No. 1838. He argued that the document completed by A/D/Sgt. Read was straightforward in outlining the factual basis for an informal resolution. With respect to the timing of the notice that an investigation would commence, he argued that Service procedure allows for up to seven days; the Appellant had indicated he would have a response at the end of his night shift rotation, or three days.
Mr. Migicovsky asserted that the events that preceded November 19th, 2007 can be characterised as an attempt at informal resolution. Notice was not required. When a matter cannot be resolved informally, however, the provisions of Part V apply, such that a complaint is made by the chief of police under s. 56 (7) and the notice requirement is triggered. The matter then proceeds to a formal investigation and potentially a hearing. He pointed out that s. 64 (1.1) states: “The chief of police may, of his or her own motion, make a complaint about the conduct of a police officer on his or her police force, other than the deputy chief of police, and shall cause such a complaint to be investigated and to be reported on in a written report.”
Counsel noted that the Hearing Officer analysed the issue at page 24 of his decision: “It must therefore flow that a complaint by the chief of police becomes a complaint, when the chief of police or those delegated on his or her behalf, exercises his discretion to make a complaint, ‘of his or her own motion,’ which then calls for the notice requirement.”
He also pointed out that the Hearing Officer determined that on November 19, 2007, when Constable McRae was advised via email that there would be an investigation, the Chief of Police exercised his discretion under s.64 (1.1). Consequently, the s.56 (7) notice requirement was fulfilled. He argued that this case is distinguishable from Lindsay, supra, because the Appellant received notice, while Sergeant Lindsay’s discipline involved a public complainant and the failure to provide any notice that a chief’s complaint would be made.
Mr. Migicovsky argued that the Hearing Officer committed no errors. It is not necessary for the finder of fact to refer to each and every piece of evidence put before him or her. Woolaston v. Canada (MMI) 1972 CanLII 3 (SCC), [1973] S.C.R. 102, McEachran v. Ontario (Labour Relations Board), [2005] O.J. No. 465 (Div. Ct.). He did not draw inferences but relied on the facts and analysed the evidence in reaching his decision. R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), Gulf Sea Products Ltd. V. National Sea Products Ltd., [1985] P.E.I.J. No 11. He reminded us that as a reviewing body, we cannot substitute our decision except in extraordinary circumstances. Byrne and Ontario Provincial Police (October 9, 2007, OCCPS).
Mr. Migicovsky requested that the Commission dismiss the appeal.

Reasons for Decision

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.).
The Supreme Court of Canada described the standard of reasonableness in Dunsmuir (supra) at para. 47. The application of these principles means that the Commission’s role 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”. Constable William Barlow and Ottawa Police Service, (August 15, 2011, OCPC)
This has been affirmed in the recent Supreme Court of Canada decision Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para. 18, where the Court noted with approval the following comments of Evans, J.A. in Canada Post Corp. v. Public Service Alliance of Canada 2010 FCA 56(Can LII):

…Dunsmuir seeks to “avoid an unduly formalistic approach to judicial review”…”perfection is not the standard”…reviewing courts should ask whether, “when read in light of the evidence before it and the nature of its statutory task, the tribunal’s reasons adequately explain the bases of its decision”…

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 a hearing officer’s findings, unless an examination of the record shows that the conclusions reached cannot reasonably be supported by the evidence. Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell Ont 1583 (Div. Ct.).
The issues before us in this appeal are twofold: did the Appellant receive proper notice of the chief’s complaint against him and, if there was proper notice, was there evidence that he violated the Service’s Procedure 19.
The Act establishes standards of conduct and sets out the statutory framework for the receipt, management and disposition of complaints about police conduct.
With respect to the first issue pertaining to notice, the Hearing Officer properly considered that Part V of the Act should be interpreted as a whole. At page 12 of his Ruling on Defence Motion (April 2, 2009), he stated that “words should receive their normal meaning and not (be) strained to fit alternative arguments.”
We find the argument raised by the Appellant, that he had not received adequate notice of the charge according to s. 56 (7) of the Act, not supported by the record. From our examination of the record and the decisions, we find that the Hearing Officer’s review and analysis are reasonable. His conclusions are supported by the record.
In his decision on the motion, the Hearing Officer wrote: “...the discretion, including its timing belongs to the chief of police.” He further stated at page 24: “It must therefore flow that a complaint by the chief of police becomes a complaint, when the chief of police or those delegated exercises his or her discretion to make a complaint, ‘of his or her own motion’ which then calls for the notice requirement.” In our view, the Hearing Officer correctly found that the Appellant was given notice when he received the written report and proposal for an informal resolution on November 9, 2007 and again on November 19, 2007.
The Hearing Officer found it acceptable that A/D/Sgt. Read did not ask for witnesses to the incident because when he confronted the Appellant, Constable McRae acknowledged it was his gun and admitted his error. At page 23, the Hearing Officer concluded: “On the central issue of whether he found McRae’s firearm insecure and McRae’s admissions to him, the evidence is credible and irrefutable.”
The Hearing Officer was sensitive to the “undertone that an animus or bias was alive, by Read against McRae due to a Police Association presidency campaign…” and found that it was not relevant. He was aware from testimony that there was “no credible evidence of mechanical failure or tampering by others” to the drawer in which the Appellant stored his firearm. Rooney and Sault Ste. Marie Police Service, (February 13, 1998, OCCPS). He examined the demeanour and deportment of witnesses as well as inconsistencies in testimony and documentation, in particular that of A/D/Sgt. Read. He found A/D/Sgt. Read’s evidence to be credible and irrefutable, and accepted his explanations for discrepancies.
On the other hand, the Appellant’s deportment and demeanour and how his testimony “fits into the picture of common sense and life experience” caused him concerns. The Hearing Officer heard that the Appellant did not make notes of the incident nor did he report his suspicion that someone else may have taken the gun out of his desk. In the words of the Hearing Officer, “It is equally unworthy of the special status and the inquisitive role that a detective holds. By definition detectives investigate.” On page 23 of his Judgment, the Hearing Officer noted that Constable McRae was a ‘thorny witness, more defiant than forthcoming”. He observed that the Appellant was, at times, evasive and contradictory, resistant to providing straightforward answers or delivering “hollow testimony” and provided examples to support these findings.
Taking the reasons for the Hearing Officer’s decision in their entirety and in context, we conclude that he dealt with the substantive live issues relating to Service Procedure 19. There has been no misinterpretation of the evidence, no misapplication of law or other manifest error that would justify our intervention. We are satisfied that he followed a clear line of reasoning on reaching the finding of guilt. He outlined the questions to be answered and then answered them:
did the officer receive an order?
if the officer received an order, was it a lawful order?
did the officer disobey, neglect or omit to carry out that order?
The Hearing Officer was aware that all police officers in Ontario receive training on the importance of securing their firearm and the consequences of the failure to do so. The lawful order is contained in Service Procedure 19 titled “Carrying, Handling, Use and Safe Storage of Police Service Firearms”, article 6.1.3 which states: “On-duty members, while in a police facility shall ensure the security of their firearm by either wearing it at all times or storing it in their personal locker or authorized gun locker.” In examining the evidence, the Hearing Officer found nothing that supported any conclusion other than that the Appellant left his firearm unsecured on his desk while he was away from the CIB office.
The Hearing Officer observed in both the decisions on conduct and penalty that offences relating to handling and safe storage of firearms are serious matters “with significant potential for serious and life threatening consequences.” Writing from his own professional experience working in police facilities, he commented that “firearms have been accidentally discharged, firearms have been stolen for profit and firearms have been used for suicide.” He examined the Record of Misconduct prepared by A/D/Sgt. Read and confirmed that, based on the facts, misconduct had occurred.
It is clear from our reading of the record and the decision that the Hearing Officer adequately analysed the live issues, identified the supporting facts and provided context for his conclusions. He outlined in some detail the evidence supporting his line of reasoning for finding Constable McRae guilty of insubordination and we find that his decision falls within the range of acceptable outcomes. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (supra).
Accordingly, we confirm the finding of guilt and dismiss the appeal.
We note the reference to penalty in the Notice of Appeal. However, the relief sought related only to the conviction. No oral or written argument on penalty was raised by either counsel.

DATED AT TORONTO THIS 23RD DAY OF MARCH 2012

Zahra Dhanani Member (OCPC)

Hyacinthe Miller Member (OCPC)