Stevenson v. York Regional Police Service, 2013 CanLII 101389

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Stevenson v. York Regional Police Service, 2013 ONCPC 12

BETWEEN:

CONSTABLE LAWRENCE STEVENSON -and- APPELLANT

YORK REGIONAL POLICE SERVICE RESPONDENT

DECISION

Panel: David C. Gavsie, Associate Chair Jacqueline Castel, Member John Rodriguez, Member

Hearing Dates: September 19 & 20, 2013 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

Joanne Mulcahy, Counsel for the Appellant Jason D. Fraser, Counsel for the Respondent

Introduction

1. On June 22, 2007, Constable Lawrence Stevenson (“Const. Stevenson” or the “Appellant”) of the York Regional Police Service (“YRPS”) was served with a Notice of Hearing dated June 18, 2007, alleging 13 counts of misconduct under the Code of Conduct which is set out as a Schedule to Ontario Regulation 123/98 enacted under the Police Services Act R.S.O. 1990, c.P. 15, as amended (“the Act”):

• Discreditable Conduct (two counts);
• Neglect of Duty (three counts);
• Deceit (three counts);
• Corrupt Practice (two counts);
• Unlawful or Unnecessary Exercise of Authority (one count); and
• Insubordination (two counts).

2. The incident to which these charges related occurred as the result of a traffic stop and a seizure of marijuana on August 4, 2004, almost three years earlier.

3. A hearing was held before Superintendent Mark Tatz (“Supt. Tatz” or the “Hearing Officer”), commencing on May 20, 2011, at which time Const. Stevenson entered a plea of not guilty to each count.

4. The hearing was conducted over 15 non-consecutive days.

5. On August 11, 2010, the prosecution withdrew three of the counts (one count of Insubordination, one count of Discreditable Conduct and one count of Deceit).

6. By decision dated November 18, 2011, the Hearing Officer found the Appellant not guilty of all remaining counts except for one count of Neglect of Duty. Without lawful excuse, he was found to have neglected or omitted promptly and diligently to perform a duty as a member of the police force, by conducting an improper traffic stop, based on prior information and then using his position as a police officer to effect the arrests and seize drugs not submitted as evidence.

7. In his penalty decision dated May 1, 2012, the Hearing Officer ordered that Const. Stevenson be dismissed from the YRPS in seven days unless he resigned before that time.

8. Const. Stevenson is appealing both the finding and the penalty imposed against him by the Hearing Officer.

9. The factual circumstances leading to the charges against the Appellant occurred prior to October 19, 2009. Accordingly, all legislative references in this decision are to the Act and Regulations as they read prior to the amendments effective October 19, 2009.

Decision

10. For the reasons set out below, the appeal from the finding of misconduct is allowed. The issue of penalty has become moot.

Background

11. Const. Stevenson has been a police officer with the YRPS since April 1991. Excluding the occurrence to which this appeal relates, he has no formal discipline on his record of employment and a positive employment history.

12. An investigation into the circumstances surrounding the Appellant’s involvement in the arrests and the seizure of marijuana on August 4, 2004 was precipitated by a conversation between then YRPS Constable Minh Tram (“Const. Tram”) and members of the YRPS Professional Standards Bureau almost two and a half years later. The conversation took place on January 4, 2007 shortly after Const. Tram was arrested in the City of Toronto for breaching the terms of his interim judicial release.

13. Const. Tram told then Detective Riches (“Det. Riches”) of the Professional Standards Bureau that he would give him information about criminal activity by members of the YRPS and resign in exchange for being released from custody. Before speaking to Det. Riches, Const. Tram also told another officer to pull his pistol and shoot him.

14. Const. Tram made a number of allegations to Det. Riches about members of the YRPS. All of the allegations were investigated, but only the allegation which was linked to the Appellant’s August 2004 arrests and seizure of marijuana resulted in charges being laid.

15. Specifically, Const. Tram alleged that an unnamed member of the Drugs and Vice Squad made a seizure of 90 pounds of marijuana and only 20 pounds were entered as evidence. Const. Tram indicated that he was supposed to receive money to pay his informant but he never did. He also said he stole $45,000 from a couple on Highway 407 to recoup the money which had not been paid to him.

16. Const. Tram’s utterances were neither signed nor made under oath. They were neither audio taped nor videotaped, and Det. Riches’ notes were neither verbatim nor contemporaneous.

17. The day after Const. Tram made the utterances he denied that the incident ever occurred; he also denied having given the information to Det. Riches.

18. Prior to Const. Tram’s resignation from YRPS on December 31, 2007, he had been charged with nine criminal offences including robbery, assault with a weapon, assault and breach of recognizance. He also faced 86 charges under the Act including charges of Deceit, Corrupt Practice, Discreditable Conduct and Insubordination.

19. An agreed statement of facts submitted to the Hearing Officer confirmed that since Const. Tram’s resignation, he has been investigated by the Toronto Police and the YRPS on multiple occasions and convicted of breach of a peace bond, dangerous driving and fail to appear. He has also been apprehended under the Mental Health Act.

20. Const. Tram did not testify at the Hearing, but his utterances to the Professional Standards Branch were introduced through Det. Riches, with vigorous objections from the Appellant’s counsel.

The Witnesses’ Testimony

Det. Riches

21. There was conflicting evidence about the traffic stop and the seizure of marijuana.

22. Det. Riches met or spoke with Const. Tram on 15 occasions between January 5 and May 31, 2007. Const. Tram refused to provide a statement under oath. Const. Tram routinely denied to Det. Riches that he had made any allegation against the Appellant at their first meeting on January 5, 2007.

23. Det. Riches testified about his conversations with Const. Tram as set out under the heading “Background” above.

24. During the course of his investigation, Det. Riches obtained two Criminal Code search warrants for records pertaining to cell phones owned by Const. Tram and Const. Stevenson for the period of July 4, 2004 to September 4, 2004. These records revealed that on August 4, 2004, there were 4 calls from Const. Stevenson to Const. Tram and 10 calls from Const. Tram to Const. Stevenson. The calls lasted from 12 seconds to two minutes and 24 seconds. From the records, it could not be determined whether a conversation ever occurred or whether the call had gone to voicemail, been disconnected or ignored. There were 91 calls between Const. Tram and Stevenson during the two months of the warrant.

25. Evidence of the calls in relation to the cell phone towers indicated that the movements of Const. Stevenson and the cell phone owned by Const. Tram were very similar or in tandem up to and including the traffic stop.

Tinh Huu Ngo

26. As the result of the allegations by Const. Tram, on January 13, 2007, Det. Riches located Mr. Ngo, the driver of the Lexus vehicle stopped by Const. Stevenson on August 4, 2004. Det. Riches interviewed Mr. Ngo on three occasions. The female passenger who was also arrested at the traffic stop was located but not interviewed.

27. In 2004, Mr. Ngo was a drug dealer. Mr. Ngo had told Det. Riches and testified that on August 4, 2004, he and the female passenger, his girlfriend, attended the Pho #1 Restaurant in the Jane and Wilson area of Toronto and obtained a quantity of marijuana from an associate whom he had known and identified only as “Quoc”. Mr. Ngo testified that another man, who he only knew as “Viet”, had asked to purchase 100 pounds of marijuana, and Mr. Ngo had ordered the marijuana from Quoc.

28. Quoc packed the marijuana in the trunk of a green Lexus which he provided. Mr. Ngo initially testified that Quoc put 10 bags of marijuana in the trunk but ultimately admitted that he never counted the bags. He told the police he did not check the contents of the Lexus but testified that he opened three garbage bags of marijuana. Mr. Ngo also testified that he was advised by Quoc that the bags contained 84 pounds of marijuana.

29. After obtaining the marijuana from Quoc, Mr. Ngo testified that he drove around in his own vehicle for one or two hours, leaving the Lexus full of marijuana in its trunk unattended in the parking lot of the restaurant.

30. Mr. Ngo testified in chief that he met Viet in the parking lot of Pho #1, but stated on cross-examination that the meeting took place at a pool hall or Song Video. He then followed Viet, who was driving a red and black Honda Element, to a location which he did not know, to receive payment and deliver the drugs.

31. Mr. Ngo told Det. Riches and testified at the hearing that he did not run a red light when the police officer stopped his vehicle. According to Nr. Ngo, the police officer was sitting in his police car on the grassy area on the northeast corner of East Beaver Creek Road and Highway 7. He stated that the police car followed him until he turned right on to Leslie Street and stopped.

32. He testified that there was no marijuana in the back seat of the vehicle and no smell of marijuana when the police officer stopped the car. There were two car seats in the back seat of the Lexus. Mr. Ngo testified that he witnessed the police officer make four or five trips between the trunk of the Lexus and the trunk of his police cruiser, carrying a garbage bag of marijuana in each hand. He also testified that the officer called a dark skinned officer to attend and this officer took him and the female passenger to the police station.

33. Mr. Ngo said he only realized he was charged with being in possession of 10 pounds of marijuana, rather than the 84 pounds he believed he was carrying, when he received his criminal disclosure.

34. According to Mr. Ngo’s testimony, he had to pay Quoc back for the 74 pounds of marijuana that had gone missing. Mr. Ngo testified that each pound of marijuana had a value of approximately $2,300 and that he owed Quoc around $160,000. [The correct amount, based on these numbers, would be $170,200¹]. He testified that he paid off this debt by selling his house in Toronto. The house was in the name of a friend because he could not have his name on title due to his criminal activity. The friend was never interviewed by police.

Const. Rodney Lord

35. Const. Lord was dispatched to the scene of the traffic stop to assist. Both occupants of the stopped car were out leaning against a vehicle. Const. Lord reached into the stopped car and took a large garbage bag from the back seat which he described as a green garbage bag with loose marijuana in it. He said he could see the leaves. The bag was tied but it was so full, Const. Lord said he could see into it. He said there was a strong odour of marijuana in the car.

36. Nine minutes after arriving, Const. Lord left the traffic stop. Mr. Ngo, the female passenger and the bag of marijuana were transported by Const. Lord to the 5 District Station. Const. Stevenson stayed at the scene to wait for a tow truck.

37. Const. Lord did not search the car, nor the trunk. He did not see anyone else do so either.

Constable Lawrence Stevenson

38. On August 4, 2004, Const. Stevenson was an acting Sergeant in 5 District. After he conducted two parades, he went on the road.

39. Const. Stevenson was involved in the arrest of an accused shoplifter near a plaza and handed the accused to other officers for processing.

40. Back on patrol, he was proceeding west on Highway 7 and stopped at a red light at the northbound 404 exit to Highway 7. He saw a vehicle go through a red light onto Highway 7 and he followed that car.

41. The vehicle turned right on to Leslie Street and stopped. Const. Stevenson got out of his car and approached the stopped vehicle from behind it. He noted a strong smell of marijuana and a garbage bag on the back seat. In checking documents, Const. Stevenson saw that the driver did not own the car.

42. Const. Stevenson testified the garbage bag was not tied at the top and he could see Ziploc bags inside it. The driver was arrested and put into the rear of the police cruiser. He spoke to the female passenger but she did not speak English. He then looked into the garbage bag and saw it contained Ziploc bags of marijuana. He did not remove anything from the car, and requested back-up.

43. Const. Stevenson was adamant he never checked the trunk of the stopped car nor removed anything from the trunk. He did not search the vehicle.

44. When asked about calls to or from Const. Tram that evening which were shown on telephone statements obtained by Det. Riches, Const. Stevenson said he could not recall any except for one call he made to Const. Tram to come to 5 District to act as a translator.

45. Const. Stevenson also testified that he and Const. Tram were work acquaintances. He confirmed the two of them had gone to Vietnam on holidays for a month in March 2004 and had stayed with Const. Tram’s relatives.

Other Witnesses

46. Other police officers testified as to the arrest of the alleged shoplifter, the smell of marijuana from the garbage bag inside the 5 Division Station, and to receiving calls from Const. Stevenson regarding dealing with or handling the marijuana after its seizure. There was also evidence about a bus shelter on the northeast corner of East Beaver Creek Road and Highway 7 in 2004.

47. Further, Const. Stevenson’s superior on August 4. 2004, Insp. DeLorenzi testified there was nothing unusual about the Appellant’s location in Division 5 at the time of the traffic stop.

Appellant’s Submissions

Irreconcilable Findings

48. Ms. Mulcahy submitted that the Hearing Officer erred in accepting Mr. Ngo’s evidence that the drugs were stored in the trunk of the Lexus, while at the same time accepting Const. Lord’s evidence that he took custody of one bag of marijuana from the rear seat of the Lexus. She stated that the findings are not reconcilable and relate to a central issue in the case.

49. She submitted that this is a fundamental error at law which is more than sufficient to quash the decision in itself: see R. v. Craig [2006] O.J. No. 112 (C.A.), R. v. Andrews [2005] O.J. No. 5039 (OCJ) and R. v. Kourakos [2005] O.J. No. 2930 (C.A.).

Failure to Apply Correct Standard of Proof

50. Ms. Mulcahy quoted from page 26 of the Decision as to Findings, where the Hearing Officer stated: “The standard of proof is clear and convincing evidence. The evidence must be based on cogent evidence supplied by credible witnesses.”

51. Ms. Mulcahy submitted that cogent evidence supplied by credible witnesses does not constitute clear and convincing evidence.

52. She argued that the proper meaning of clear and convincing evidence is stated in Carmichael and Ontario Provincial Police (May 21, 1998, OCCPS), at p. 6, quoted in Cate and Peel Regional Police Service (December 5, 2002, OCCPS), at p. 6:

The applicable burden of proof in this case is that of “clear and convincing evidence”. There must be weighty, cogent and reliable evidence upon which a trier of fact acting with care and caution can come to a reasonable conclusion that the officer is guilty of misconduct.

Shifting the Burden of Proof

53. Ms. Mulcahy noted that also at page 26 of the Decision as to Findings, the Hearing Officer quoted from the Allen v. Munro decision (Board of Inquiry – 1994), which was supplied by the defence, and indicated that he used the approach outlined therein when reviewing the evidence of each witness:

Credibility is central to our determination in this case. In coming to our conclusion of this allegation, we have considered the evidence of the witnesses, their demeanor when testifying, any internal inconsistencies in their versions of events, and the extent to which they had an interest in the outcome of the case.

Ms. Mulcahy argued that the Hearing Officer improperly applied this standard to the subject officer who was a party to the hearing, not a witness.

54. She submitted that the Hearing Officer shifted the burden of proof to the Appellant, when he held “I do not accept Constable Stevenson’s evidence at its highest. He has a vested interest in the outcome of this hearing”.

55. Ms. Mulcahy stated that Const. Stevenson had no burden of proof. She argued that he should not be penalized because he has a presumption of innocence: see R. v. D.T.G. (2011) 2011 ONCA 40, 266 C.C.C. (3d) 189 (Ont. C.A.), R. v. L.B. (1993) 1993 CanLII 8508 (ON CA), 82 C.C.C. (3d) 189 (Ont. C.A.) and R. v. Fabian [1994] O.J. No. 4500 (C.A.).

56. Ms. Mulcahy argued that the Hearing Officer shifted the burden of proof when he drew a negative inference about Const. Stevenson’s credibility from his failure to recall the reason for the cell phone contact between him and Const. Tram and his failure to recall or explain why he “made a beeline for the extreme western boundary of the District, only to go to a plaza parking lot.”

57. Ms. Mulcahy argued that there was no obligation on the defence to proffer an explanation or prove anything. The suggestion that such an obligation existed, she argued, constituted shifting the burden of proof: see R. v. Norman (1993) 87 C.C.C. (3d) 152 (Ont. C.A.) and R. v. Lizzi 1996 CanLII 21269 (ON CTGD), [1996] O.J. No. 3235 (Gen. Div.).

58. Ms. Mulcahy also argued that the Hearing Officer imposed a lower level of scrutiny to the evidence which was favourable to the prosecution. She provided these examples:

• While the Hearing Officer dismissed the fact Mr. Ngo could not recall what parking lot he left from or the route he took to get to Highway 7 and Highway 404 as being of little importance, he found it illogical that Const. Stevenson could head to the most westerly boundary of the district and not recall why.

• The Hearing Officer dismissed the testimony of Const. Stevenson and Const. Lord on the location of the marijuana in the vehicle, stating “it makes no sense to carry a garbage bag full of marijuana in the rear seat of a vehicle”, while he was able to accept or ignore that Mr. Ngo would leave a car full of marijuana unattended, sitting in a parking lot, for one or two hours.

59. She noted that the Hearing Officer found that Mr. Ngo did not have a vested interest in the hearing and that he held no animus towards Const. Stevenson. She asked the Panel to consider the reasonableness of this finding given that Mr. Ngo was a lying drug dealer who spent a night in custody and supposedly had to pay back his dealer for whatever amount of drugs were seized.

60. She argued that the Hearing Officer made a fundamental error when he dismissed inconsistencies and lack of clarity in the evidence of Mr. Ngo as “being of little or no consequence to the issue at hand”: see R. v. D.T.G., supra, Greater Sudbury Police Service v. Greater Sudbury Police Service [2010] O.J. No. 793 (Div. Ct.), Sergeant Peter Cox and OPP (OCCPS 2012), R. v. Hampel [1999] O.J. No. 2808 (C.A.) and R. v. G(M) (1994) 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.).

61. She enumerated the following material inconsistencies in Mr. Ngo’s evidence:

• He testified for the first time at the hearing that the trunk was opened and that he checked it, opening and looking in and seeing three garbage bags. He told the police in his interviews that he did not check it.

• He testified that Quoc told him there were 84 pounds of marijuana. When interviewed by the police in January 2007 he said there were about 100 pounds. When interviewed by the police in February 2007, he said he did not find out how much was in the trunk until after he was charged.

• He changed the colour of the garbage bags. In chief they were green and orange. To the police on February 3, 2007, he said they were big black bags. When confronted with the difference on cross-examination, he said the colour was green or black and that he does not really know the colour.

• He denied repeatedly that the officer said he could smell drugs in the car. Yet when asked by the police, did he tell you what you were under arrest for, he said the officer pointed in the car and said “in your car it smell like drug”.

• He told the police in January 2007 that he did not get into trouble when drugs went missing and yet at the hearing he indicated he had to pay $160,000. He claimed he was just trying to protect himself in the interview with police.

• He told the Hearing Officer he did not remember a Vietnamese officer attending the station. Yet he told the police in May 2007 that there was a Vietnamese officer available to translate.

62. In addition, Ms. Mulcahy pointed out that Mr. Ngo’s evidence with respect to the time of the traffic stop was not supported by any of the evidence. He testified that for sure he was stopped in the afternoon and before dinner. The computer records show that the arrest was called in at 8:20 p.m.

63. Ms. Mulcahy submitted that it was a fundamental error to put little weight on the inconsistencies in Mr. Ngo’s evidence: see R. v. Washington [2004] O.J. No 3346 and R. v. Mulder [2010] O.J. No. 668.

Failure to Consider Relevant Evidence

64. Ms. Mulcahy argued that the Hearing Officer failed to consider and address the following relevant evidence:

• Keith Aubrey’s testimony that there was a bus shelter at the northeast corner of Highway 7 and East Beaver Creek in 2007 and that it would have been impossible for an officer to park there, as Mr. Ngo alleged.

• The evidence that it would not have been possible for Mr. Ngo to have been following a man driving a red and black Honda Element, as he alleged, since there were no red and black Honda Elements in the Province of Ontario in 2004.

• The evidence of Const. Lord, Const. Lidstone, Const. Elaguppillair, Const. Athwal and Const. Stevenson on the strong smell of marijuana, which contradicted Mr. Ngo’s testimony that there was no smell of marijuana.

65. Ms. Mulcahy submitted that in failing to address the above relevant evidence in his reasons, the Hearing Officer committed another fundamental error: see Cate, supra, and R. v. Elvish [2003] O.J. No 5722.

Hearing Officer Engaging in Speculation

66. Ms. Mulcahy submitted that the Hearing Officer engaged in speculation when he stated:

His testimony in relation to the location of the drugs rings true. It makes no sense to carry a garbage bag full of marijuana in the rear seat of a vehicle. If stopped by police, a garbage bag in the back seat would only attract inquiries.

67. She argued that there was no evidence before the Hearing Officer regarding the propensity of those illegally transporting drugs to place drugs in the trunk over the back seat of a vehicle to avoid attracting attention from police on the chance that they may get pulled over. She also pointed out that Mr. Ngo did not testify that he made a decision to place the drugs in the trunk of the car, rather than the back seat, to avoid being detected if he was pulled over.

68. She also argued that the Hearing Officer engaged in speculation when he determined that the traffic stop was made on the basis of information from Const. Tram. There was no direct evidence that Const. Tram gave Const. Stevenson information with respect to the transportation of drugs on August 4, 2004. There was no evidence that Const. Tram was even aware that drugs were being transported that day. There was also no evidence from Const. Tram of there being an arrangement with Const. Stevenson to commit a drug rip off.

69. In addition, Ms. Mulcahy argued that the Hearing Officer engaged in speculation when he relied on the cell tower location data to determine that Const. Stevenson and Const. Tram were moving in tandem. The prosecution called no evidence on the significance or reliability of the cell tower locations. There was no information available to the Hearing Officer as to the location of Const. Tram on the evening of August 4, 2004. In addition, there was no evidence before the Hearing Officer that confirmed that Const. Tram was in possession of his cell phone on the evening of August 4, 2004. By concluding that Const. Tram had his cell phone with him on that evening, Ms. Mulcahy submitted, the Hearing Officer engaged in speculation.

70. Ms. Mulcahy submitted that the Hearing Officer made a fundamental error of law when he engaged in speculation without reasons or corroborating evidence to support his conclusions: see PC Watters and O.P.P. (February 1, 2011, OCCPS) and Re: Lang and Ramsay (1992 1992 CanLII 7567 (ON CTGD), 11 O.R. (3d) 190 (Ont. Div. Ct.).

Uses his Experience to Fill in Gaps in the Evidence

71. Ms. Mulcahy submitted that the Hearing Officer attempted to use his experience to bolster and give validity to his decision. She quoted from page 27 to 28 of the Decision as to Findings:

Before I speak to the remaining evidence, I am aware that I am able to use my experience as a police officer to assist me in my analysis and ultimately, to come to my determination. I am expected to use that experience to evaluate the evidence, but not to fill in gaps. With this in mind, I will point out that I have over 32 years of police experience. As a member of York Regional Police my assignments included approximately 2 ½ years in the Traffic Bureau; approximately 2 ½ years as an instructor in the Training Branch; approximately 1 ½ years as a detective in a District CIB office, 6 years as a Detective in Homicide; 2 years as a Detective Sergeant in a District CIB office and 2 years as a Detective Sergeant in Homicide. As a member of the Royal Canadian Mounted Police in British Columbia in addition to time spent as a uniform officer doing municipal police work, I spent approximately 4 years assigned to the Vancouver Drug Section.

72. Ms. Mulcahy argued that the Hearing Officer proceeded to use his experience to fill in gaps in the evidence when he stated at page 32 of the Decision as to Findings:

I do not believe for an instant that an officer described as a knowledgeable police officer, a digger, a good worker, a mentor, an all round good police officer would be unable to articulate grounds for a search under these circumstances.

As previously stated, it is not my job to fill in the gaps, only to use my experience to assist in weighing the evidence. In my experience, the common law authority to search for evidence incident to arrest is clear. Mr. Ngo was arrested for a drug offence, the common law authority to search the vehicle for other drugs in the vehicle are very clear.

Not only is there a common law authority to search, but STEVENSON was impounding the vehicle, taking that vehicle into the custody of the York Regional Police. The vehicle did not belong to Mr. NGO. He testified that he filled out the release slip prior to the tow truck arriving. Procedure requires that an inventory search is conducted any time a vehicle is impounded to note the vehicle contents.

73. Ms. Mulcahy pointed out that the case law is actually all over the map regarding the authority to search a vehicle incident to arrest. She stated that she cited in her factum cases that stand for the proposition that there is no such authority, and the Respondent referred to cases which go the other way: see R. v. Calderon 2004 CanLII 7569 (ON CA), 188 C.C.C. (3d) 481 and R. v. Bulmer 2005 SKCA 90, [2005] S.J. No. 437 (C.A.). She also noted that no evidence was tendered regarding the procedure to be followed when a vehicle is impounded.

Hearing Officer Improperly Relied on Hearsay Statements

74. Ms. Mulcahy submitted that although the Hearing Officer stated at page 31 of the Decision as to Findings that “Const. TRAM … has been conceded to be of bad character. His utterances did not impact my decision in any way ….”, he proceeded to conclude that there was a relationship between Const. Tram and Const. Stevenson, that Const. Tram provided PC Stevenson with information as to the transportation of drugs on August 4, 2004, and that Const. Stevenson “made the traffic stop based on prior information provided to him by Const. Tram.”

75. She submitted that the case is a disturbing precedent “where a prosecutor can just call an investigator to repeat the utterances of an untruthful or discreditable witness.”

76. She submitted that the hearsay evidence should never have been admitted and that the Hearing Officer clearly accorded weight to the evidence, once admitted, which resulted in a denial of natural justice to Const. Stevenson: see Gilbert v. Ontario (Provincial Police) [1999] O.J. No. 4784 (Div. Ct.), Gilbert v. Ontario (Provincial Police) [2000] O.J. No. 3521 (C.A.) and B and Catholic Children’s Aid Society of Metropolitan Toronto (1987) 1987 CanLII 4187 (ON HCJ), 59 O.R. (2d) 417 (Div.Ct.).

Implausibility

77. Ms. Mulcahy argued that the Hearing Officer failed to consider the implausibility of the following:

• Mr. Ngo’s testimony, which implied that Const. Stevenson would have been able to move approximately 10 garbage bags full of marijuana from the trunk of a civilian vehicle into his police cruiser at a busy intersection.

• The allegation that Const. Stevenson would engage in a drug rip off on a busy street in front of a busy plaza, while speaking to a detective and to his mother and involving an unsuspecting officer.

Character Evidence

78. Ms. Mulcahy submitted that good character evidence is admissible as a basis for an inference that the accused is unlikely to have committed the crime charged: see R. v. Elmosri 1985 CanLII 3545 (ON CA), 23 C.C. C. (3d) 503 (Ont. C.A.), R. v. Logiacco (1984) 1984 ABCA 87, 11 C.C.C. (3d) 503 (Ont. C.A.) and Greater Sudbury Police Service v. Greater Sudbury Police Service, supra.

79. She argued that the Hearing Officer never inferred, from the good character evidence submitted on behalf of Const. Stevenson, that this evidence made it unlikely he would engage in a drug rip off. Conversely, he used the good character evidence against Const. Stevenson to make the point that such an experienced and knowledgeable police officer would “surely have been able to articulate grounds for a search under these circumstances.”

The Hearing Officer Erred in Ignoring the Serious Misconduct of the Investigator

80. Ms. Mulcahy submitted that Det. Riches, at the time he swore informations to obtain search warrants for the cell phone records of Const. Tram and Const. Stevenson for the period of July 4, 2004 to September 4, 2004, failed to disclose that, the very next day, Const. Tram denied making the statement and denied that there was any truth to the statement [see para. 17, supra²].

81. Ms. Mulcahy argued that Det. Riches had a duty to make full, fair and frank disclosure in the information to obtain the search warrants.

82. Ms. Mulcahy submitted that a tribunal may refuse to admit evidence or may disregard evidence or give it limited weight where it has been improperly obtained and where the admission of the evidence would bring the administration of justice into disrepute: see Mooring v. Canada (National Parole Board), 1996 CanLII 254 (SCC), [1996] 1 S.C.R. 75 and R. v. Conway 2010 SCC 22, [2010] S.C.J. No. 22.

83. She pointed out that the Hearing Officer not only received the phone records and cell tower data, but relied on them to draw key conclusions, including the existence of a relationship between Const. Tram and Const. Stevenson and the fact that Const. Tram and Const. Stevenson were moving in tandem on the evening of August 4, 2004.

Respondent’s Submissions

84. Mr. Fraser submitted that the standard of review for the Commission with respect to the factual findings of the Hearing Officer is reasonableness: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9. In Williams and Ontario Provincial Police (December 4, 1995, OCCPS) at p. 11 the Commission noted that:

Our role or function in such matters is not to second guess the decision of the Adjudicator. In certain limited cases, it would be open to us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the Adjudicator, as to the credibility of witnesses, cannot be reasonably accepted. The question then to be asked in this case is, are the conclusions of the Adjudicator void of evidentiary foundation.

85. He argued that the use of the term “void of evidentiary foundation” creates a stringent test to be met and contemplates that appellate interference with the Hearing Officer’s evidentiary findings should be exercised sparingly.

86. Accordingly, he submitted that the Commission should show deference to the findings of the Hearing Officer unless an examination of the record shows that the conclusions cannot reasonably be supported by the evidence: see Toronto (City) Police Service v. Blowes-Aybar, 2004 CanLII 34451 (ON SCDC), [2004] O.J. No. 1655 (Div. Ct.) at para. 30-33.

87. Mr. Fraser also submitted that the Commission should not be overly critical of the language used nor focus on mistakes that do not affect the decision as a whole: see Galassi v. Hamilton Police Service, [2005] CanLII 20789 (Div. Ct.) at para. 19.

The Appellant Challenges Findings of Fact

88. In response to the Appellant’s challenges of the Hearing Officer’s finding of fact, Mr. Fraser submitted that the following findings and conclusions were by no means void of evidentiary foundation.

89. First, Mr. Fraser submitted, it was not a contradiction for the Hearing Officer to accept Mr. Ngo’s evidence that he transported the marijuana in the trunk of the Lexus, and also to accept Const. Lord’s evidence that he removed a bag of marijuana from the back seat of the vehicle 28 minutes after Const. Stevenson stopped the vehicle. Const. Stevenson had 28 minutes to put one bag of marijuana before Const. Lord arrived on the scene.

90. Second, Mr. Fraser submitted that Mr. Aubrey’s evidence concerning the bus shelter did not render impossible Mr. Ngo’s testimony, that Const. Stevenson parked on the boulevard at the northwest corner of Highway 7 and East Beaver Creek when Mr. Ngo passed him on Highway 7. Mr. Aubrey testified about and provided photographs of the Viva Transit stop at the aforementioned corner in 2011. However, Mr. Aubrey also testified that an “old style” bus shelter existed at that corner in 2004. The large swath of grassy boulevard adjacent to the bus shelter makes Mr. Ngo’s evidence quite possible.

91. In addition, Mr. Fraser submitted that the Appellant failed to adhere to the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), which would require his counsel to put the matter of the bus shelter to Mr. Ngo if counsel was going to later attempt to use the existence of the bus shelter to contradict his evidence or impeach his credibility: see R v. Werkman, [2007] A.J. No. 416 (C.A.) at para. 7 and R. v. Giroux, 2006 CanLII 10736 (ON CA), [2006] O.J. No. 1375 (C.A.) at para. 42.

92. Similarly, Mr. Fraser submitted, Mr. Ngo was not cross-examined on the fact that there were no red and black Honda Elements registered in Ontario in 2004.

93. Regarding Mr. Ngo’s evidence on the time of day he was stopped by Const. Stevenson, Mr. Fraser submitted that the time of the stop was never a contentious or significant issue. Unlike Mr. Ngo, Const. Stevenson and the YRPS had the benefit of multiple records indicating that Const. Stevenson queried the Lexus at 20:18 and radioed in the traffic stop at 20:21. Mr. Fraser further submitted that it would be trivial for anyone to expect Mr. Ngo to recall the time of the stop at a hearing conducted almost seven years after the stop.

94. Mr. Fraser submitted that the Hearing Officer did not err in relying on the evidence about the cell phone towers without calling evidence about the relevance of the tower locations. The Ontario Court of Appeal held that a trial judge can take judicial notice of the approximate location of the cell phone at the time a call was made, based on cell tower location: see R. v. Ranger, [2010] O.J. No. 4840 (C.A.) paras. 14-16.

Assessment of Credibility

95. Mr. Fraser asked the Commission to resist the Appellant’s invitation to reweigh the testimony presented at the hearing and reassess the credibility of the witnesses. The Hearing officer is always in the best position to assess credibility and to decide what weight should be given to the evidence presented at the hearing: see Precious v. Hamilton Police Station, (May 10, 2002, OCCPS) at p. 8, Carmichael v. Ontario Provincial Police, supra, at pp. 7-8 and F.H. v. McDougall, [2008] 3 S.C.R. 41 at para. 72.

96. Mr. Fraser submitted that the Hearing Officer set out cogent reasons for believing or disbelieving the testimony. It was within the Hearing Officer’s discretion to accept or reject parts of witnesses’ evidence: see Geske and Hamilton Police Service, (July 3, 2003, OCCPS) at p. 9.

97. He submitted that the Hearing Officer enumerated where the Appellant and Mr. Ngo’s evidence was consistent and where it was inconsistent. The Hearing Officer addressed the frailties of Mr. Ngo’s evidence, including his status as a drug dealer. Mr. Fraser argued that the Hearing Officer adequately explained why errors in Mr. Ngo’s peripheral testimony did not undermine his credibility as to the core issues concerning the traffic stop and drug seizure. There remained a body of credible evidence capable of being used, in conjunction with other evidence, to support the finding of misconduct: see R. v. HS.B., 2008 SCC 52, [2008] S.C.J. No. 53 at paras. 12-13.

98. Mr. Fraser submitted that it was reasonable for the Hearing Officer to accept Mr. Ngo’s testimony that he was transporting multiple garbage bags of marijuana in the trunk of the Lexus and that the Appellant removed garbage bags from the trunk of the Lexus and placed them in the trunk of his police car, having regard to the following cogent reasons outlined by the Hearing Officer:

99. There was no evidence of animus towards the Appellant in as much as Mr. Ngo never made a report to the YRPS;

100. Mr. Ngo was approached by the Professional Standards Bureau and was under no obligation to speak to them;

101. Mr. Ngo acknowledged that he did not check every garbage bag and that he did not weigh the marijuana; and

102. It makes no sense for Mr. Ngo to carry a garbage bag full of marijuana in the rear seat of a vehicle since, if stopped by police, it would only attract inquiries.

103. Mr. Fraser submitted that the Hearing Officer can use the benefit of his own specialized experience provided he does not take into account extraneous considerations or fill in any gaps. He further submitted that it was reasonable and common sense for the Hearing Officer to conclude that Mr. Ngo would have transported the drugs in his trunk rather than in the back seat of the Lexus.

104. Mr. Fraser said that the Hearing Officer’s assessment of the Appellant’s credibility was reasonable and he provided cogent reasons for rejecting the Appellant’s testimony:

105. The incident should have stood out in the Appellant’s memories since the seizure of 10 pounds of marijuana was a significant arrest.

106. It was self-serving and disingenuous for the Appellant to simply not recall the plethora of cell phone calls between him and Const. Tram on the day in question.

107. The movements of Const. Tram and the timing of those movements, based on his cell phone records, were very similar to the movements of Const. Stevenson leading up to the traffic stop.

108. The Appellant’s testimony that Const. Tram was no different from any other work acquaintance does not accord with the cell phone records produced and his admission that they went on holiday together.

109. There was no logical reason why the Appellant would travel directly to the extreme western boundary of the District for which he was responsible, only to sit in a plaza parking lot.

110. The Appellant’s explanation for heading west on Highway 7 after the shoplifting arrest and leaving the District for which he was acting Sergeant defied logic. He had already passed the northbound on ramp for Highway 404 so his only options were to travel south on Highway 404 or continue west and leave his District.

111. The Hearing Officer found that it defied logic to find a garbage bag of marijuana in the back seat of a car, in these circumstances, and not conduct a search of the car. In addition to the common law authority to search, Const. Stevenson was taking the vehicle into police custody and in these circumstances it would have been inconsistent with police procedure not to conduct a search.

112. Mr. Fraser also argued that it was reasonable for the Hearing Officer to consider the Appellant’s failure to search the Lexus for the limited purpose of assessing his credibility. He asked the Commission to distinguish the present case from cases such as Sheddy v. Law Society of British Columbia [2007] B.C.J. No. 495 (C.A.) and Bennet v. Registered Psychiatric Nurses’ Assn. of Manitoba [2003] M.J. No. 163 (C.A.), wherein the tribunals made actual disciplinary findings based on issues not before the tribunals.

113. Mr. Fraser submitted that the Hearing Officer’s ultimate finding of misconduct was based upon clear and convincing evidence that the Appellant conducted an improper traffic stop and then seized a quantity of drugs which were not submitted as evidence.

114. Mr. Fraser noted that there is ample authority to support the contention that the Appellant should have searched the vehicle after arresting the driver and seizing a garbage bag full of marijuana from the vehicle: see R. v. Consolo, [2008] O.J. No. 3754 (S.C.J.) at para. 104, R. v. Shankar, 2007 ONCA 280, [2007] O.J. No 1406 (C.A.) at paras. 13-16, R. v. Alkins, 2007 ONCA 264, [2007] O.J. No. 1348 (C.A.) at para. 48, R. v. Condon [2006] B.C.J. No 1485 (C.A.) at paras. 25-27 and R. v. Wilson, [2006] O.J. No. 4461 (C.A.) at para. 2.

115. Mr. Fraser submitted that the Hearing Officer chose to give less weight to the character evidence of the Appellant having regard, in particular, to the Appellant’s failure to search the Lexus.

The Use of Utterances from Const. Tram

105. Mr. Fraser submitted that under s. 15(2) of the Statutory Powers Procedure Act, a hearing officer has the discretion to admit hearsay evidence that is relevant to the subject matter of the hearing.

106. He quoted as follows from J. Sopinka, S.N. Lederman & A.W. Bryant, The Law of Evidence in Canada, 2nd 3d (Toronto: Butterworths, 1999) at 308 as follows:

In proceedings before most administrative tribunals and labour arbitration boards, hearsay evidence is freely admissible and its weight is a matter for the tribunal or board to decide, unless its receipt would amount to a clear denial of natural justice. So long as such hearsay evidence is relevant, it can serve as the basis for the decision, whether or not it is supported by other evidence which would be admissible in a court of law.

The rationale for shying away from strict adherence to the hearsay rule, and the rules of evidence generally, is that administrative proceedings are not normally as adversarial as criminal and civil cases. Moreover, policy and social issues are often considered in such proceedings. Evidence with respect to these issues by its nature contains a hearsay component which cannot be separated out. Furthermore individuals who are not legally trained are often members of the tribunal or act as representatives of parties and would not be familiar with the rules of evidence.

107. Mr. Fraser submitted that the Hearing Officer’s admission, without corroboration, of Const. Tram’s utterance was appropriate even in the face of his deplorable record and the prosecution’s admission concerning a lack of credibility.

108. He argued that the Hearing Officer made limited use of Const. Tram’s utterance and the prosecution did not require Const. Tram’s evidence to secure the finding of misconduct. The case for the prosecution was not dependent on Const. Tram’s utterance nor was the finding of misconduct based solely or even significantly on hearsay evidence.

109. Accordingly, Mr. Fraser submitted that that the admission of Const. Tram’s utterances was procedurally fair: see Bond v. New Brunswick (Board of Management), 1992 CanLII 2434 (NB CA), [1992] N.B.J. No 567 at page 3, Re: B and Catholic Children’s Aid Society of Metropolitan Toronto, supra, at paras. 9-10 and Gilbert v. Ontario (Provincial Police), [1999] O.J. No. 4784 9S.C.J. at para. 12, affirmed [2000] O.J. No. 3521 (C.A.).

Appellant’s Allegations against Det. Riches

110. Mr. Fraser argued that there is no merit to the Appellant’s argument that it is unfair for the Hearing Officer to rely on evidence which was improperly obtained, for the following reasons.

111. First, the Appellant did not challenge the admissibility of the cell phone record evidence during the hearing or raise any arguments with respect to the violation of his Charter rights.

112. Second, the Hearing Officer was never given an opportunity to review Det. Riches’ informations to obtain evidence as they were never tendered into evidence.

113. Third, the Appellant did not raise the admission of the cell phone record or any Charter issue as a ground of appeal in the Amended Notice of Appeal.

Assessing the Evidence as a Whole

114. Mr. Fraser submitted that in reaching his decision that the Appellant engaged in misconduct, the Hearing Officer properly looked at the evidence as a whole. He came to the proper determination that the cumulative effect of all the evidence, both direct and circumstantial, satisfied the standard of proof required of the prosecution.

Reply Submissions

115. Ms. Mulcahy submitted that Mr. Fraser was speculating when he said that Const. Stevenson removed one bag of marijuana from the trunk of the Lexus and put it in the back seat before Const. Lord arrived. This theory was never put to Const. Stevenson. Mr. Ngo did not testify that he witnessed Const. Stevenson doing that. This is a new theory being presented on appeal.

116. She submitted that there was no evidence Const. Stevenson was sitting in his vehicle in a shopping plaza.

117. Ms. Mulcahy argued that Insp. DeLorenzi never raised an issue with Const. Stevenson not searching the vehicle and he was aware of the parameters of the search.

118. She submitted that the issue of Const. Stevenson going on holiday with Const. Tram is a red herring in terms of clear and convincing evidence for misconduct.

119. Ms. Mulcahy noted that the Hearing Officer failed to address the issue that all of the witnesses except Mr. Ngo testified to the smell of marijuana.

120. Ms. Mulcahy submitted that the Hearing Officer clearly stated that it was a neglect of duty not to search the vehicle in the circumstances of this case.

Reasons and Analysis

121. The standard of review for the Commission with respect to the Hearing Officer’s factual findings is reasonableness: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 51.

122. The standard of review with respect to the Hearing Officer’s interpretation and application of the law is correctness: see Dunsmuir v. New Brunswick, supra, at para. 50.

123. The Supreme Court of Canada described the standard of reasonableness in Dunsmuir v. New Brunswick, supra, at para. 47:

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

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

125. In certain limited cases it may be open to us to reach a different conclusion from the trier of fact. However, we should only intervene if there has been an error in principle, or relevant factors have been ignored: see Williams, Wilson and Ontario Provincial Police (November 20, 2006, OCCPS), Favretto and Ontario Provincial Police (February 13, 2002, OCCPS) and Karklins and Toronto Police Service (September 25, 2007, OCCPS).

126. An appeal to the Commission is an appeal on the record. Unlike the trier of fact, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to the Hearing Officer’s findings, unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence: see Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell Ont. 1583 (Div. Ct.).

127. The Panel reviewed and carefully considered the oral submissions of counsel which were delivered over two full days, the written submissions, the briefs of authorities, as well as the record from the hearing.

128. In reviewing the Hearing Officer’s decision and the record, we found numerous errors of law and fact. The ones we considered to be most significant are as follows:

129. The Hearing Officer’s admission of and reliance on hearsay evidence from Const. Tram through Det. Riches which, we find, was highly unreliable and prejudicial to the Appellant, resulting in procedural unfairness and a denial of natural justice.

130. The Hearing Officer shifted the burden of proof onto the Appellant, displacing the presumption of innocence.

131. The Hearing Officer made irreconcilable findings on key evidence which he failed to address or explain in his decision.

132. The Hearing Officer used his experience to fill in gaps in the evidence and to make essential findings of fact.

133. The Hearing Officer’s decision and conclusions were without evidentiary basis.

134. Before turning to an analysis of these errors, we will outline which of the Appellant’s arguments we did not consider to be persuasive or to rely on, in whole or in part, in reaching our decision.

135. First, we did not rely on Ms. Mulcahy’s arguments against Det. Riches. We accept Mr. Fraser’s submission that the Appellant should have challenged the admissibility of the cell phone record evidence at the hearing, and the Hearing Officer should have had the opportunity to review the informations to obtain evidence, if the Appellant was going to challenge the propriety of how they were obtained on appeal.

136. Second, we did not base our decision on the Appellant’s “implausibility” arguments as we found that these arguments called for speculation: see Re: Lang and Ramsay, supra, and PC Watters and O.P.P. (February 1, 2011, OCCPS).

137. Third, we did not base our decision on Mr. Aubrey’s evidence concerning the bus shelter since his evidence applied to the Viva transit shelter which existed in 2011, not the “old style” shelter which was there in 2004. We also accept Mr. Fraser’s submission that the rule in Browne v. Dunn, supra, precluded the Appellant from using the existence of the bus shelter to contradict or impeach Mr. Ngo’s credibility, since Ms. Mulcahy did not put the matter of the shelter to him in cross-examination: see R v. Werkman, supra, at para. 7 and R. v. Giroux, supra, at para. 42.

138. Finally, we did not consider, in reaching our decision, the fact that there were no red and black Honda Elements registered in Ontario in 2004, since Ms. Mulcahy did not cross-examine Mr. Ngo on this matter. As such, we agree with Mr. Fraser that the rule in Browne v. Dunn, supra, precludes the Appellant from using the evidence to contradict or impeach Mr. Ngo’s credibility.

139. We now turn to the errors we find were made by the Hearing Officer as the result of which we have allowed this appeal.

Hearsay Utterances of Const. Tram

135. In administrative hearings, adjudicators have the discretion of admitting hearsay evidence and assigning an appropriate weight to it, always taking into account that the evidence was not subject to cross-examination and therefore should not be accorded as much weight as first hand evidence. This discretion is specifically allowed under s. 15(2) of the Statutory Powers Procedure Act.

136. Nevertheless, adjudicators should not admit hearsay evidence where the prejudicial impact of admitting such evidence exceeds any probative value, resulting in a clear denial of natural justice. This is contemplated in the passage of the The Law of Evidence in Canada, supra, which Mr. Fraser quoted in his submissions:

In proceedings before most administrative tribunals and labour arbitration boards, hearsay evidence is freely admissible and its weight is a matter for the tribunal or board to decide, unless its receipt would amount to a clear denial of natural justice. So long as such hearsay evidence is relevant, it can serve as the basis for the decision, whether or not it is supported by other evidence which would be admissible in a court of law (page 308) [Emphasis added].

137. Given the evidence concerning Const. Tram’s bad character, which included nine charges under the Criminal Code and 86 charges under the Police Services Act, the circumstances in which he made the utterances, and the fact that the next day he denied making the utterances and denied that the things he alleged ever happened, his evidence was extremely unreliable and prejudicial to Const. Stevenson.

138. The Hearing Officer acknowledged in his decision that the evidence concerning Const. Tram’s bad character was “overwhelming”. At the time that Const. Tram made the utterances, he had breached the terms of his interim judicial release and was desperate to secure a deal for his release. Just before making the statements in question to Det. Riches, Const. Tram told another officer to pull a pistol and shoot him.

139. Const. Tram did not make the utterances under oath, nor did he sign a statement. The utterances were neither videotaped nor audiotaped. Det. Riches’ notes of the utterances were not verbatim, nor were they made contemporaneously. Const. Tram made other allegations which were investigated but none of them resulted in charges. Const. Tram was also charged with Deceit under the Act in relation to the utterances.

140. In these circumstances, where the hearsay evidence was so blatantly unreliable and highly prejudicial, and also went to the central issue or allegation in the case, the Hearing Officer erred in admitting it. Const. Tram should have been called as a witness if the prosecution wished to put forward his evidence; the Appellant was entitled to cross-examine Const. Tram on evidence of this nature. It was Const. Tram’s utterances to Det. Riches which precipitated the investigation that led to the hearing. The utterances related directly to the misconduct for which Const. Stevenson was charged.

141. Although the Hearing Officer stated he did not give Const. Tram’s utterances any weight, we find this not to be the case. We also disagree with Mr. Fraser that the prosecution was not dependent on Const. Tram’s utterances for the finding of misconduct. The Hearing Officer relied on the hearsay evidence in interpreting other evidence, and he used Const. Tram’s utterances to speculate about the meaning and significance of such evidence.

142. Specifically, the Hearing Officer concluded that the phone contact between Const. Tram and the Appellant before the arrest on August 4, 2004 meant that Const. Tram was feeding the Appellant information to make the arrest. This conclusion was speculation based on Const. Tram’s hearsay utterances: see Re: Lang and Ramsay, (1992), supra, and PC Watters and O.P.P., supra.

143. There was no evidence concerning the content of any cell phone conversations between Const. Tram and Const. Stevenson, [except for Const. Stevenson’s direct evidence that he called Const. Tram, after obtaining permission from his supervisor and confirming there were no other Vietnamese interpreters on duty, to attend to assist with translations]. There was no direct evidence Const. Tram even had his cell phone on his person prior to the traffic stop. There was also no direct evidence that Const. Tram gave Const. Stevenson information with respect to the transportation of drugs by a civilian on August 4, 2004. There was also no direct evidence from Const. Tram of an arrangement between himself and Const. Stevenson to commit a drug rip off. All of this was speculation.

144. The admission of and reliance on the hearsay evidence, in these circumstances, resulted in a clear denial of procedural fairness and natural justice, namely the right to cross-examine an overwhelmingly and clearly unreliable accuser, who supposedly recanted, and who had no credibility, but whose evidence went to the central issue in the case.

Shifting the Burden of Proof

145. The burden of proof in disciplinary hearings under the Act is on the prosecution. It is incorrect reasoning to hold that an appellant will lie to avoid liability or being found guilty. Such reasoning displaces the presumption of innocence and presupposes the guilt of the appellant. As the court held in R v. L.B. (1993), 1993 CanLII 8508 (ON CA), 82 C.C.C. (3d) 189 at 90:

It goes beyond the permissible consideration of the accused’s interest in being acquitted, as one factor to be taken into account when weighing his testimony. It falls into the impermissible assumption that the accused will lie to secure his acquittal.

146. We agree with Ms. Mulcahy that the Hearing Officer applied such impermissible reasoning when he commented that: “I do not accept Constable Stevenson’s evidence at its highest. He has a vested interest in the outcome of this hearing.”

147. The Hearing Officer also shifted the burden of proof when he found Const. Stevenson to be lacking credibility, in large part, because he could not recall or offer an explanation for (1) the telephone contact between himself and Const. Tram during the day and evening of the traffic stop, or, (2) Const. Stevenson’s location in the extreme western boundary of the District at the time just prior to the traffic stop and the arrest.

148. The Hearing Officer was, in essence, insisting that Const. Stevenson should have been able to explain his behavior. The burden of proof is on the prosecution. As such, there was no onus on Const. Stevenson to explain his behavior or prove anything. This, taken with the previous statement about vested interest, had the effect of shifting the burden of proof to the accused: see R. v. Norman, supra, and R. v. Lizzi, supra.

149. In addition, we find that the Hearing Officer also applied a more stringent level of scrutiny to the evidence favourable to the Appellant than to the evidence of the prosecution’s witnesses, again, effectively putting an onus on Const. Stevenson to prove the truth.

150. For instance, the Hearing Officer acknowledged that Mr. Ngo’s memory was less than clear, but dismissed the areas on which his memory was unclear as being of “little or no consequence” to the allegation of theft of drugs by a police officer:

“What parking lot he left from, what route he took from Toronto to Markham is not indicative of his memory of the events of the arrest and alleged theft. The evidence that is of the greatest importance to this Tribunal is the evidence he provided in relation to the traffic stop and subsequent events. ….” (page 29 of the Decision as to Findings).

151. However, the Hearing Officer applied a double standard when he found Const. Stevenson lacking in credibility because he couldn’t remember why he was patrolling certain areas of his district or the content or reasons for phone calls lasting 12 seconds to two minutes and 24 seconds that took place seven years ago.

152. Other inconsistencies in Mr. Ngo’s evidence, or areas where the evidence was unclear, which the Hearing Officer dismissed as being of little importance included:

• He told the police he did not check the contents of the Lexus, but then he testified that he did, opening three garbage bags of marijuana.
• He told the police in January 2007 that there were 100 pounds of marijuana in the vehicle. In February 2007, he told the police he didn’t find out how much marijuana was in the car until after he was charged. He testified there were 84 pounds of marijuana in the car.
• He told the police the garbage bags were black, and he testified in chief that they were green and orange. When confronted on cross-examination about the inconsistency, he said he couldn’t remember the colour.
• When the police asked him whether the officer told him why he was under arrest, he answered that the officer said “in your car it smell like drug”.
• However he subsequently denied that there was a smell of drugs in the car. All other witnesses testified to the smell of marijuana.
• In January 2007, he told the police that he did not get into trouble when the drugs went missing, yet at the hearing he testified that he had to pay Quoc $160,000.
• He told the police in May 2007 that there was a Vietnamese officer available to translate, yet he testified at the hearing that he did not remember a Vietnamese officer.
• He testified that the arrest occurred in the afternoon which conflicted with the computer records, which revealed that the arrest was called in at 8:20 p.m.

153. We cannot accept Mr. Fraser’s submissions that all of these inconsistencies were peripheral, particularly when looked at together. There were too many inconsistencies and areas in which Mr. Ngo’s evidence was unclear. We find that the Hearing Officer cast too broadly those matters he considered peripheral, and in so doing, he failed to subject the prosecutor’s evidence to the degree of careful scrutiny which was required in the circumstances of the case. This further undermined the presumption of innocence and the fairness of the hearing: see R. v Mulder, supra, and R. v. Washington, supra.

154. In shifting the burden of proof onto Const. Stevenson, the Hearing Officer committed a fundamental error of law: see R. v. D.T.G., supra, R. v. L.B., supra, and R. v. Fabian, supra.

Irreconcilable Findings

155. Significant conflicts in the evidence become an error of law where (1) the conflicts are not addressed in the reasons for judgment, (2) the conflicts relate to key issues, and (3) the record does not otherwise explain the decision in a satisfactory matter: see Queen v. Sheppard, 2002 SCC 26, [2002] 162 C.C.C. (3d) 298 (SCC) at 306).

156. The Hearing Officer accepted the evidence of both Mr. Ngo and Const. Lord regarding the location of the marijuana. The evidence of Mr. Ngo and Const. Lord was at odds with each other on this subject. The former testified that the marijuana was in the trunk, and the latter testified that it was in the back seat of the vehicle.

157. The Hearing Officer failed to give reasons explaining how he reconciled these two conflicting versions of where the marijuana was stored.

158. Mr. Fraser suggested in his factum and oral submissions that the two pieces of evidence are not inconsistent, when it is considered that Const. Stevenson had 28 minutes, before the arrival of Const. Lord, to put a bag of marijuana in the back seat. However, this was not part of the evidence or the Hearing Officer’s reasons. The suggestion was never put to Const. Stevenson, and Mr. Ngo did not testify that he witnessed Const. Stevenson doing same. We agree with Ms. Mulcahy that this explanation was pure speculation and conjecture on the part of Mr. Fraser.

159. The conflicting evidence related to a key issue in the decision. Mr. Ngo’s evidence on the location of the marijuana supported the prosecution’s theory that his vehicle was stopped based on prior information. Const. Lord’s evidence on the location of the marijuana supported Const. Stevenson’s testimony that he smelled the marijuana when he stopped the vehicle for running a red light.

160. The record does not otherwise explain how both Mr. Ngo and Const. Lord’s evidence on the location of the marijuana could be true.

161. Accordingly, the Hearing Officer committed an error of law when he accepted the conflicting evidence of Mr. Ngo and Const. Lord on the location of the marijuana and failed to address the conflict in his reasons for judgment.

Uses Experience to Fill in Gaps in the Evidence

162. While adjudicators are permitted to use their experience when assessing the evidence, they are not permitted to use their experience to fill in gaps in the record or to make essential findings of fact. Essential findings of fact must be made on the basis of evidence: see Sheddy v. Law Society of British Columbia, supra.

163. The Hearing Officer digressed in his reasons, to summarize his experience at considerable length (see above). We agree with Ms. Mulcahy that the Hearing Officer then proceeded to use his experience to fill in gaps in the evidence and to make essential findings of fact.

164. Specifically, he concluded, first, that an experienced officer such as Const. Stevenson would have known to search the vehicle. Second, he concluded that the common law authority to search for evidence incidental to arrest is clear. Third, he concluded that procedure requires an inventory search be conducted when a vehicle is impounded to note its contents.

165. There was no evidence on what experienced officers are expected to know about the search of a vehicle incident to an arrest. The Appellant and the Respondent have submitted conflicting case law on the authority to search a vehicle incident to arrest, demonstrating that the case law is far from clear on the subject: see R. v. Calderon, supra, R. v. Bulmer, supra, R. v. Consolo, supra, at para. 104 and R. v. Shankar, supra, at paras. 13-16.

166. Further, no evidence was tendered on the procedure to be followed when a vehicle is to be impounded. The Hearing Officer’s view of the procedure may or may not be sound. However, the Appellant had no opportunity to adduce evidence to the contrary, as the procedure was not part of the prosecutor’s case or the record. This was procedurally unfair.

167. The Hearing Officer’s findings related to Const. Stevenson’s failure to search the vehicle were significant to the decision, as he used them to support his conclusion that Const. Stevenson conducted the arrest based on prior information and did not submit all of the drugs that were seized.

168. We also find that the Hearing Officer used his experience to draw conclusions and make findings of fact, not supported by the evidence, when he concluded that there was no logical reason why Const. Stevenson made a “beeline for the extreme western boundary of the District, only to go to a plaza parking lot”. In reaching this conclusion, the Hearing Officer ignored the evidence of Insp. DeLorenzi who testified that there was nothing wrong with Const. Stevenson travelling on Highway 7 pursuant to his duties.

169. The Hearing Officer’s conclusion regarding Const. Stevenson’s location in the district was also significant to the finding of misconduct, as the Hearing Officer used it to support his conclusion that Const. Stevenson made the traffic stop based on prior information.

170. Accordingly, we find that the Hearing Officer breached natural justice when he used his experience to fill in gaps in the evidence and make essential findings of fact, as illustrated above.

Assessing the Evidence as a Whole

171. Mr. Fraser argued that in reaching his decision, the Hearing Officer properly examined the evidence as a whole, and based on the cumulative effect of all evidence, the prosecution’s burden of proof was satisfied.

172. The principal evidence which the Hearing Officer relied on in his decision was:

• Const. Tram’s evidence which was all hearsay;
• the cell phone and cell tower information;
• Mr. Ngo’s evidence that he did not run a red light when the officer stopped the car, that the marijuana was in the trunk, that there was no smell of marijuana in the car, and that there was more than 10 pounds of marijuana;
• the Appellant’s location in the District and direction of travel; and
• the fact that the Appellant did not search the Lexus after seizing 10 pounds of marijuana.

173. Const. Tram’s hearsay evidence was completely unreliable, for reasons which are outlined in detail above, and should not have been admitted or relied on at all.

174. In our view, the cell phone and cell tower information was inconclusive. The evidence indicated that there were 10 calls between Const. Tram and Const. Stevenson prior to the arrest, and that the movements of Const. Stevenson and the cell phone owned by Const. Tram were in tandem up to and including the traffic stop. There was no evidence on the content of the conversations between Const. Stevenson and Const. Tram, if any, except the one conversation wherein Const. Stevenson asked Const. Tram to act as an interpreter. We cannot determine from the records whether the calls went to voice-mail, were disconnected or ignored. There was also no direct evidence that Const. Tram even had his cell phone on his person at the times of the cell tower data.

175. We have found that Mr. Ngo’s evidence that he did not run a red light when the officer stopped the car, that the marijuana was in the trunk, that there was no smell of marijuana in the car, and that there was more than 10 pounds of marijuana, was unreliable given Mr. Ngo’s criminal background and the numerous other inconsistencies in his evidence and areas on which his evidence was unclear. Further, there was no direct evidence to corroborate Mr. Ngo. Neither the female passenger, Quoc, nor Viet were interviewed by police; nor did they testify at the hearing.

176. It may indeed be suspicious or unusual that a drug dealer would put a bag of marijuana in the back seat of the vehicle, which also contained two car seats, and run a red light when transporting drugs. However, suspicions do not amount to evidence. It was unusual that a drug dealer would leave bags full of marijuana in his car unattended in a parking lot while he drove around for one or two hours, and this too was Mr. Ngo’s testimony. The Hearing Officer ignored the latter testimony and did not demonstrate how he reconciled it with his finding that Mr. Ngo was telling the truth about not running the red light and the marijuana being stored in the trunk.

177. The evidence regarding Const. Stevenson’s location in the District and route of travel did not warrant any type of negative inference against Const. Stevenson, given that the only evidence on this issue was from his supervisor Insp. DeLorenzi, who testified that there was nothing wrong with Const. Stevenson’s location in the District, pursuant to his duties.

178. In addition, the fact that Const. Stevenson did not search the vehicle should not have reflected negatively on his credibility. Insp. DeLorenzi was not asked whether Const. Stevenson should have searched the vehicle, but Const. Stevenson was not disciplined at the time for failing to search the vehicle. Quite to the contrary, Insp. DeLorenzi submitted a recognition form because he considered it to be a good arrest. As explained above, the case law goes both ways regarding the right to search a vehicle incident to arrest, and there was no evidence on the record concerning the procedure to follow when vehicles are impounded.

179. In short, considering the evidence as a whole, we find that the Decision does not fall into the range of possible or acceptable outcomes which are defensible in respect of facts and law. The Decision was not based on clear, cogent and reliable evidence. Rather, it was a case of suspicions and speculation, and the absence of an evidentiary basis to support the finding of misconduct.

180. For all of the above reasons, the appeal from the finding of misconduct is allowed. Accordingly, the issue of penalty is moot.

DATED AT TORONTO, THIS 7th DAY OF NOVEMBER, 2013

David C. Gavsie Associate Chair

Jacqueline Castel Member

John Rodriguez Member

Footnotes

1. 1notation by Panel
2. 2notation by panel