OCPC-#12-06
ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED
Citation: Cox v. Ontario Provincial Police, 2012 ONCPC 6
BETWEEN:
SERGEANT PETER COX
APPELLANT
-and-
ONTARIO PROVINCIAL POLICE
RESPONDENT
DECISION
Panel: Dave Edwards, Vice Chair
Noëlle Caloren, Member
Hearing Date: January 23, 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:
Gavin J. May, Counsel for the Appellant
Norman W. Feaver, Counsel for the Respondent
Introduction
Sergeant Peter Cox (the "Appellant" or “Sergeant Cox”) has been a member of the Ontario Provincial Police (the “OPP”) since May 30,
On June 29th, 2010, the Appellant was found guilty of one count of Discreditable Conduct contrary to the Code of Conduct set out in Ontario Regulation 123/98, as amended, enacted under the Police Services Act, R.S.O. 1990, c.P.15, as amended (the "Act").
On April 26, 2011, Deputy Chief Terence Kelly (Ret.) (the "Hearing Officer") imposed a penalty of demotion in rank to First Class Constable for a period of one year, and provided that “Upon completion of that term, and without any further breaches of the Rules of Conduct, he will be returned to the rank of Sergeant.”
Sergeant Cox is appealing the finding of Discreditable Conduct and the penalty.
Summary Decision
- For the reasons set out below, we allow the appeal, revoke the finding of Discreditable Conduct, and substitute a finding of not guilty.
The Disciplinary Hearing:
The Appellant was charged with Discreditable Conduct as a result of a verbal exchange with a civilian co-worker on October 27th, 2008 at the OPP’s Provincial Communication Centre in Smiths Falls (the “Building”), when he allegedly referred to his police issued ASP baton as a “nigger beater”.
The hearing was held on March 30, March 31 and April 1, 2010.
Sergeant Cox pled not guilty to the charge.
Nine witnesses gave evidence at the hearing and 18 Exhibits were filed. A conflicting picture of the events leading to the alleged comment of October 27th, 2008 emerged from the evidence.
The floor plan of the Building was introduced into evidence. The area in which the communication operators work is referred to as the “Communication Centre”. It is depicted as a large room which contains
23 work stations. Each operator is assigned to a work station and a record of when the operator is logged into his/her work station is maintained electronically. There is a bank of windows on the east side
of the Communication Centre. An area of offices often referred to as the administrative area lies to the south. Access between these two areas is controlled by a locked door which can only be opened with a
key or a swipe card. Access to the Communication Centre can also be gained from the north side of the Building by way of an access controlled door. The staff room lies to the north of the Communication
Centre and there are windows along the east side of this room. There are exterior doors on the east side of the Building leading into the lunchroom and into a hallway which lies between the Communication
Centre and the lunchroom. Both doors require a swipe card to be opened. The use of a swipe card is automatically recorded electronically.
A civilian co-worker, M testified that she worked in the Building as a communication operator.
M testified that while she was working the evening shift on October 27,
2008, Sergeant Cox came over to her console, spoke to her, and then left for firearms training. Sergeant Cox testified that no such
conversation occurred.
Sergeant Cox testified that on the evening in question he left for firearms training with Sergeant McRae around 7:00 p.m. En route they stopped at Tim Hortons and purchased beverages. They returned to the Building around 9:30 p.m. Sergeant McRae parked the vehicle at the south entrance to the Building and Sergeant Cox removed his gear from the vehicle and walked through the parking lot to the east side of the Building.
Sergeant McRae confirmed that he attended a firearms requalification with Sergeant Cox on the night in question, beginning at 7:00 p.m. He testified that on the way back from the training session they stopped at Tim Hortons to buy beverages. They got back to the Building at
approximately 9:30 p.m. Sergeant McRae parked the vehicle and then used his swipe card to gain access to the building. The record of Sergeant McRae’s swipe card use on October 27th was entered into the record as Exhibit 14. This shows the use of his swipe card to access the administrative side of the building at 9:30 p.m.
Sergeant McRae testified that he and Sergeant Cox went to Sergeant McRae’s office and drank the beverages which they had purchased. Sergeant McRae requested that the Appellant return a flashlight to the Tech office as he knew that Sergeant Cox would be going that way to store his own equipment. After approximately 10 minutes they parted company.
Sergeant McRae did not see the direction in which Sergeant Cox went once he left his office. He testified that the direct route to the storage area, (which is on the north side of the Building), would be through the Communication Centre. A locked door separates the administration area from the Communication Centre. A swipe card or a key is required to unlock that door. Sergeant Cox’s swipe card history was entered as Exhibit 15. It shows no use of the card after 5:54 pm on October 27, 2008.
Sergeant Cox had no recollection of going to Sergeant McRae’s office, but did recall being asked by Sergeant McRae to return a flashlight to the Tech office. He recalled stopping at Tim Hortons on the way to the firearms requalification to purchase beverages, but not on the way back to the Building.
M testified that Sergeant Cox entered the Communication Centre between 10:00 p.m. and 11:30p.m. with his arms full of his gear and with the keys to the Tech office in his hands. She did not note from which direction he entered the Communication Centre. He ordered her to come with him. She reluctantly logged off her console and followed him to the north side of the building. After locking his sidearm, the Appellant gave her the keys to the Tech office. She unlocked the door and he placed the flashlight on the desk.
M further testified that after Sergeant Cox left the Tech office he began to put his equipment away, and as he did, he explained the use of the equipment. At this point he made a forward motion towards her face with his “ASP baton”, extending it and stating “this is my nigger beater”.
M testified that she was shocked by what was said and returned to her console.
Sergeant Cox’s evidence is that when he arrived back at the Building with Sergeant McRae he walked alone from the vehicle on the south side through the parking lot to the east side of the building. He was carrying all of his equipment, his hands were full and his gun belt was over his shoulder. As he was heading toward the building his ASP baton fell out of its keeper. He was able to bend down and replace it in its keeper.
From the east side of the building he observed M through a window and motioned to her to let him in. He does not recall how he got M’s attention.
There was considerable testimony about whether one could see through the windows at the Communication Centre. Sergeant Cox was unable to recall whether M was in the Communication Centre or the lunchroom when he got her attention. He also could not recall which door M opened for him.
He testified that after M opened the door for him, M retrieved the keys to the Tech office, as these were stored in the Communication Centre. Then the two of them walked down the hallway. At this point his ASP baton fell out of its keeper. M asked him what the baton was and he responded that “it is my bigger beater”.
Sergeant Cox testified that he had referred to his ASP baton in this manner on previous occasions when he worked at the OPP Communication Centre in Kanata, but never before at the Building.
He testified that he was not racist and would never use the term
“nigger”.
Sharon Whitehorn, a retired civilian employee of the OPP, testified that while she was working at the Kanata Communication Centre she heard Sergeant Cox on five or six occasions refer to his ASP baton as his “bigger beater” as a joke. She never heard him use the term “nigger beater”.
Sergeants Kirker, Watkins and Monker testified about the manner in which M brought forth this incident to management. This testimony
revealed a reluctance on M’s part to bring the matter forward. The officers also testified that M. was consistent about events when she spoke to different parties about the incident.
- The Hearing Officer found the Appellant guilty of Discreditable Conduct and ordered his demotion in rank to First Class Constable for a period of one year. Further, “[u]pon completion of that term, and without any further breaches of the Rules of Conduct, he will be returned to the rank of Sergeant”.
The Appeal Hearing: Appellant’s Submissions
Mr. May, on behalf of the Appellant, submitted that this entire matter could be reduced to one word---“nigger” vs. “bigger”. He recounted the conflicting stories about the events leading up to the incident. He noted that the Hearing Officer was requested to make findings of credibility, and that he believed M.
He suggested that the test on appeal is that the decision must be able to withstand a “somewhat probing examination”. Buckle v. Ontario Provincial Police [2006] O.J. No. 554 (Div.Ct.)
He noted that the reliability of some of the evidence, namely the swipe card records, the times when M logged in and out of her console and the floor plan of the Building could not be questioned.
He submitted that it was clear that to move from Sergeant McRae’s office to the Communication Centre a swipe card was required, unless a door was opened from the inside of the Communication Centre. No evidence was submitted to prove that a door leading to the Communication Centre was opened.
He asserted that these facts made M’s version of the events physically impossible. More specifically there was no way for Sergeant Cox to enter the Communication Centre without using a swipe card, unless someone located inside the Communication Centre opened a door for him. He pointed out that the only reference which the Hearing Officer made to this issue was that he was not “troubled by minor variances” in M’s evidence.
Mr. May referred us to the record of M’s log out times. M guessed that the incident occurred when she logged out at 10:43 pm or 11:34 pm. However, Sergeant McRae testified that Sergeant Cox left his office at approximately 9:40 pm. The log out record also shows that M was logged out at 9:34 pm and logged back in at 10:07 pm. This supports the Appellant’s evidence that M opened the staff entrance door for him while she was on her lunch break.
He noted that the records establish that M entered the staff room at
9:48 pm. This would be consistent with Sergeant Cox’s version of the events.
He submitted that there was considerable evidence regarding what he called a “lack of history” of Sergeant Cox’s use of the word “nigger”. No one, other than M, had ever heard him use that word. More importantly, Sharon Whitehorn testified that the Appellant had a history of using the words “bigger beater” with respect to his ASP baton when he worked at the Kanata Communication Centre. Her evidence was not shaken on cross-examination.
He argued that the failure of the Hearing Officer to refer to this critical evidence constituted an error in law.
With respect to penalty, Mr. May relied on Deviney and Toronto Police Service (February 10, 1999, OCCPS) as the leading case in support of the proposition that 15 days of demotion is at the high end of the penalty spectrum. He submitted that the Appellant’s employment history was no different than Constable Deviney’s and that 15 days was therefore an appropriate penalty.
He also argued that because Sergeant Cox is close to retirement, a demotion would have an ongoing negative impact on his pension entitlements and would constitute an unduly harsh penalty.
Finally he asserted that the condition imposed in the decision was beyond the Hearing Officer’s jurisdiction as it would, in effect, bind future hearing officers in the event that Sergeant Cox was ever the subject of further misconduct charges. The condition allowed for a return to the rank of Sergeant provided there were “no further breaches of the Rules of Conduct”.
Mr. May requested that we allow the appeal and revoke the finding of misconduct, or in the alternative, vary the penalty to 15 days without pay.
Respondent’s Submissions:
On behalf of the OPP, Mr. Feaver submitted that the applicable standard of review is reasonableness. He suggested that we should not be overly critical of the language employed by a lay tribunal; that the decision should only be overturned if there was no line of reasoning to support the decision; and that findings of credibility should only be disturbed where the reasoning is self-evidently wrong, contains a clear error or cannot reasonably be accepted. Dunsmuir v. New Brunswick [2008] I 5.C.R. 190, Galassi v. Hamilton Police Service (September 3, 2003, OCCPS, upheld [2005] O.J. No. 2301 (Div.Ct.), and Carson v. Pembroke Police Service [2007] O.J. No. 5392 (Div.Ct.).
He asserted that there is no evidence to support Sergeant Cox’s position that M opened a door for him to enter the building. With respect to the time of the incident, he submitted that the incident had occurred over one year before the hearing and that no one had a perfect recollection of the night. The fact that M was vague on the timing was not relevant to the issue.
Most importantly the Hearing Officer found M to be truthful on account of her reluctance to have the matter go forward. In contrast, the Hearing Officer found the Appellant to be resentful, argumentative and inconsistent in his evidence.
Mr. Feaver submitted that, although both versions of events contained inconsistencies, the Hearing Officer’s decision was reasonable and supported by the evidence. He requested that we dismiss the appeal.
He asserted that the Hearing Officer considered all of the appropriate factors in assessing the penalty. He noted that in Deviney, supra, the Constable had a stellar performance record, whereas Sergeant Cox had a prior misconduct finding. In addition, the Commission stated in Deviney that demotion was an appropriate penalty for this type of misconduct. Finally, he noted that Deviney was decided 13 years ago and that the type of misconduct at issue is more seriously viewed today, and that such a demotion clearly lies within the range of appropriate penalties available to the Hearing Officer.
He submitted that the condition imposed by the Hearing Officer was akin to a conditional sentence. He argued that it was the middle ground between ordering an automatic return to the previous rank and allowing the Appellant to apply for the right to return to the rank of Sergeant.
Finally, he asserted that there is no authority to support the position that the Appellant’s proximity to retirement is a relevant factor to consider in imposing a penalty.
On the facts of the foregoing argument, Mr. Fearer requested that we dismiss the appeal.
Reasons for Decision
Sergeant Cox appeals the finding of Discreditable Conduct and the resulting penalty imposed on him.
The standard of review in an appeal to the Commission with respect to a 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.)
The standard of review with respect to factual findings is reasonableness. Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 at para 47.
The application of these principles to an appeal 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”. Barlow and Ottawa Police Service (August 15, 2011, OCPC).
The Divisional Court has directed that this Commission should not be overly critical of the language used by a hearing officer, nor should we focus on mistakes that do not affect the decision as a whole as hearing officers are not legally trained Galassi, supra, at paragraph 19.
It is also an accepted principle of review that deference should be granted to the Hearing Officer with respect to findings of credibility. Lloyd v. London Police Service (1999), O.P.R 1345 (OCCPS) at 1351. As the standard of review is animated by deference stating that
findings of credibility attract deference is another way of stating that such findings are reviewed from the reasonableness standard.
- The Appellant submits that the Hearing Officer’s decision is unreasonable for three reasons:
a) his approach to the credibility of witnesses and parties;
b) his failure to consider the evidence of Sharon Whitehorn;
and
c) his failure to consider the absence of racial tendencies in the Appellant’s work history.
While it is clear that findings of credibility attract the deferential reasonableness review, the enunciation and application of the appropriate legal principle for determining credibility, is a question of law. The Hearing Officer must be correct in doing so.
If, for example, the Hearing Officer chose to find as credible only those witnesses with beards, such a determination would be an error reviewable from the standard of correctness. Further, if the Hearing Officer enunciated the correct legal principle, but, in fact, employed the “beard” principle to make findings of credibility, such findings would be reviewed from a standard of correctness.
In this case, the Hearing Officer articulates the proper approach to the determination of credibility by referring to the test commonly known as the “O’Hallaran test” which is described in Faryna v. Chorny (1952) 2
D.L.R. (B.C.C.A.):
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 exiting conditions. In short, the real test of the truth of the story 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. [emphasis added]
Although the Hearing Officer stated that he would apply the O’Hallaran test to determine credibility, we find that he actually failed to apply this principle and that he therefore erred in law.
Specifically, the Hearing Officer did not examine the respective testimonies of M and Sergeant Cox in the same manner. He finds fault with the Appellant for a less than perfect recollection of the events, yet is not “troubled” by the obvious inconsistencies in M’s testimony.
The failure of the Hearing Officer to apply the O’Hallaran test to the testimony of both M and Sergeant Cox also results in his decision being unreasonable.
He found “as a fact, that the evidence of Sergeant Peter Cox is entirely inconsistent with the preponderance of the probabilities that rationally emerge out of all the evidence in this case”.
On the other hand, with respect to M’s credibility, the Hearing Officer stated:
Considering the emotions and sensations that occurred during this conversation with Sergeant Cox on that particular evening, I was not troubled by minor variations in her evidence pertaining to her location in the Communication Centre and her recollection of the time of the incident; that she didn’t complain to anyone that evening. M was clearly upset at what had taken place and it is clear that this situation caused her a great deal of anguish; anguish over what she had heard and the concern that it was coming from a supervisor.
I was impressed with the candour of this witness. I believe she laboured very hard to present what she remembered of what she saw and heard on the evening of October 27th, 2008. I am convinced she was genuinely concerned about reporting the incident and told her fellow call taker P. It is clear from the evidence of Sergeants Kirker and McRae that M did not want to disclose this information because she felt intimidated by Cox and was
concerned about possible retaliation. [emphasis added]
Although the critical issue in this matter is what Sergeant Cox said to M, the O’Hallaran test demands a probing analysis as to whether the “story” of each relevant witness is in “harmony with the preponderance of the probabilities”.
On this basis the Hearing Officer found that the Appellant’s testimony regarding his access to the Communication Centre was “beyond belief”; however, he failed to consider how the Appellant could have obtained access to the Communication Centre in a manner consistent with M’s testimony. If he had, based on the objective evidence tendered, he would have inevitably been lead to a different conclusion.
The Hearing Officer noted that “Sergeant Cox was unable to provide this Tribunal with evidence as to how he managed to get the attention of M to allow him into the building, nor could he recall the exact time it happened”. He was not, however “troubled by minor variations in... [M’s] evidence pertaining to her location in the Communication Centre and her recollection of the time of the incident...”
There was clear evidence that access to the Communication Centre required the use of a swipe card or a key. The documentary evidence established that a swipe card had not been used to access the Communication Centre on the night in question at the relevant time. There was no evidence that the Appellant had a key to any of the doors which led to the Communication Centre. M testified that the Appellant entered the Communication Centre, but she did not notice the direction from which he had entered. There is no evidence on the record which demonstrates how the Appellant could have entered the Communication Centre as M testified. The Appellant testified that M opened the door for him. This in consistent with the objective evidence tendered at the hearing. Such an event would not be reflected on the record of swipe card use.
The Hearing Officer failed to deal with the variance between M’s testimony and the objective evidence in the case. In fact, the record does not contain any evidence to support M’s version of how Sergeant Cox was able to access the Communication Centre. This significant issue was not addressed by the Hearing Officer.
The Hearing Officer also failed to consider the inconsistency between M’s login records, M’s testimony as to when the interaction occurred and Sergeant McRae’s evidence as to when he last saw the Appellant.
M guessed that the incident occurred when she logged out at 10:43 pm or 11:34 pm. The log out record also shows that M was logged out at 9:34 pm. and logged back in at 10:07pm. In addition, M’s swipe card history shows that she entered the staff room via the exterior door, which is located on the east side of the building, at 9:48pm. Sergeant Cox testified that M opened a door along the east side.
Sergeant McRae testified that the Appellant left him at approximately
9:40pm. The swipe card history shows that the door which the
Appellant would have gone through if he accessed the Communication Centre from Sergeant McRae’s office was not opened around that time. This would support Sergeant Cox’s recollection that he walked through the parking lot to the east side of the building, at which time M opened the door for him.
M testified that she was working at her console when the Appellant came into the Communication Centre. There is no evidence establishing how he physically could have done so, given that all of the doors to the Communication Centre were locked; further, at the time when, based upon Sergeant McRae’s testimony, Sergeant Cox would have approached the Communication Centre (whether it was from inside of the building or from the outside), the log out record shows that M was not at her console.
Overall, these evidentiary points cannot be considered “minor” inconsistencies in M’s testimony. M’s testimony with respect to the events leading up to the incident is not in “harmony with the preponderance of probabilities”. Credibility is the core issue in this matter. Whether Sergeant Cox is guilty of misconduct depends upon whether his version, or conversely M’s version of the exchange, is to be believed. Our review of the decision and the evidentiary record leads us to the conclusion that the Hearing Officer erred in his assessment of some critical evidence in the case.
As the Hearing Officer made an error of law in failing to apply the O’Hallaran test to the testimonies of M. and the Appellant and made findings of credibility which are unreasonable, his finding of misconduct cannot stand.
Further, the Appellant submits that the Hearing Officer erred by failing to consider the testimony of Ms. Whitehorn.
Sergeant Cox testified that he had previously utilized the term “bigger beater” as a description of his ASP baton. Ms. Whitehorn’s testimony corroborated the Appellant’s testimony that he sometimes jokingly referred to his ASP baton in this manner.
Particularly where the Hearing Officer has tasked himself with determining whether the “story of the witness is in harmony with the preponderance of probabilities” as the method by which he will determine credibility, Ms. Whitehorn’s testimony is critical evidence with which to test Sergeant Cox’s “story”.
Nowhere in the decision is the evidence of Ms. Whitehorn referred to.
It is possible that the Hearing Officer considered this testimony and gave it little or no weight. Unfortunately, because we are unable to
determine that fact from the decision, we are left to conclude that the evidence was not considered.
- The recent decision of Newfoundland and Labrador Nurses’ Union v.
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 has settled the law in Canada with respect to the standard by which the sufficiency or adequacy of reasons are reviewed. The adequacy of reasons, is but one element of the “organic exercise” of determining the reasonableness of the decision.
Given the significance of Ms. Whitehorn’s evidence, the Hearing Officer’s failure to address it in his reasons constitutes in our view yet another factor supporting a conclusion that the decision is not reasonable.
We also note that the Hearing Officer’s finding “that the evidence of Sergeant Peter Cox is entirely inconsistent with the preponderance of the probabilities that rationally emerge out of all the evidence in this case” is an unreasonable finding. The statement implies that the Hearing Officer did not believe any of the evidence given by the Appellant. Based upon the evidence, that finding is unreasonable. Several aspects of the Appellant’s evidence are in fact corroborated by others or not disputed. For example, it is clear that Sergeant Cox went for firearm requalification on October 27th, 2008 with Sergeant McRae and that he took a flashlight to the Tech office for Sergeant McRae. It
was therefore unreasonable for the Hearing Officer to make a blanket finding that the Appellant’s evidence is “entirely inconsistent” with the evidence of the case.
The Appellant submitted that the Hearing Officer erred by failing to consider the evidence regarding the absence of a history of his use of any racist terms or of the words “nigger beater”. Given our conclusion that the Hearing Officer made an error in law by failing to apply the O’Hallaran test to the relevant versions of events recounted by the witnesses and further, that his findings of credibility are unreasonable, we need not address this issue.
Accordingly, for the reasons stated above we allow the appeal and vacate the finding of Discreditable Conduct, and substitute a finding of not guilty.
DATED AT TORONTO THIS 3rd DAY OF APRIL, 2012
Dave Edwards Noëlle Caloren
Vice-Chair, OCPC Member, OCPC