Constable Nicholas Phoenix v. London Police Service, 2013 CanLII 101390

OCPC #13-05

ONTARIO

CIVILIAN POLICE COMMISSION

IN THE

MATTER OF

THE POLICE SERVICES

ACT, R.S.O.

1990,

C. P.15, AS

AMENDED

Citation: Phoenix v. London Police Service, 2013 ONCPC 4

BETWEEN:

CONSTABLE NICHOLAS PHOENIX

APPELLANT

-and-

LONDON POLICE SERVICE

RESPONDENT

DECISION

Panel:

Hearing Date:

David C. Gavsie, Chair

John Rodriguez, Member

January 15, 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

Adam Weisberg, Counsel for the Appellant

Bruce K. Brown, Counsel for the Respondent

Introduction

1. On April 5, 2011, Const. Nicholas Phoenix (“Const. Phoenix” or sometimes the “Appellant”) of the London Police Service (the “Service”), was charged with four counts of misconduct contrary to various provisions of the Code of Conduct (the “Code of Conduct”) set out as a Schedule to Ontario Regulation 268/10 as amended, and therefore contravening s. 80(1)(a) of the Police Services Act, R.S.O. 1990 c.P.15, as amended (the “Act”).

2. Specifically, the allegations against Const. Phoenix were the following:

a) committing misconduct by Deceit on or about January

25, 2011 in that he wilfully or negligently made a fake, misleading or inaccurate statement pertaining to official duties by failing to provide a complete and accurate account of significant events in a follow-up investigation to a break and enter complaint, and in particular, in failing to identify Const. Chad Power as the person in possession of items stolen in a break and enter contrary to s. 2(1)(d)(ii) of the Code of Conduct;

b) committing misconduct by Discreditable Conduct, in that he acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Service on or about January 25, 2011, by deliberately omitting Const. Chad Power’s name in his follow-up report to a break and enter investigation contrary to s. 2(1)(a)(xi) of the Code of Conduct;

c) committing misconduct by Neglect of Duty, in that he without lawful excuse, neglected or omitted promptly and diligently to perform a duty as a member of the Service on or about January 25, 2011, by failing to properly record and index a statement from Robert McNair in relation to suspect information and investigative indicators Mr. McNair had reported, contrary to s. 2(1)(c)(i) of the Code of Conduct; and

d) committing misconduct by Neglect of Duty, in that he without lawful excuse, neglected or omitted promptly and diligently to perform a duty as a member of the Service on or about January 25, 2011, by failing to record in his duty book notes any suspect information or investigative indicators as related to him by Robert McNair contrary to s. 2(1)(c)(i) of the Code of Conduct.

3. A hearing was held before Supt. Robert J. Fitches (ret.) (the “Hearing Officer”). By decision dated August 25, 2011, the Hearing officer found Const. Phoenix guilty on all four counts of misconduct.

4. In his penalty decision dated February 6, 2012, the Hearing officer ordered a demotion or degradation in rank for Const. Phoenix from Constable Second Class for a period of six months, after which Const. Phoenix would revert back to Constable First Class.

5. Const. Phoenix is appealing two of the four findings, namely that he committed Deceit and Discreditable Conduct, and as well the penalty imposed against him by the Hearing Officer.

Decision

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

Facts

7. On January 25, 2011, Const. Phoenix was dispatched to the New Balance store in London for a follow-up investigation. The store had been broken into in December 2010. Items of clothing had been stolen.

8. Store personnel had reported that someone had come in and attempted to exchange articles of New Balance clothing which may have come from the break-in incident.

9. At the store, Const. Phoenix was handed a piece of paper with specific information about the person – the name, driver’s license number, vehicle license plate number and telephone number. The name was Chad Power.

10. The store manager, Robert McNair, told Const. Phoenix he was pretty sure the merchandise had come from the store and that it had been stolen.

11. Const. Phoenix told the store manager that he recognized the name Chad Power as a uniformed member of the London Police Service (the “Service”).

12. The store manager told Const. Phoenix that the person trying to exchange the merchandise stated that it was a gift from his mother and it was the wrong size.

13. Const. Phoenix called Const. Chad Power who confirmed much of what Const. Phoenix had been told by the store manager. There was a notable exception. Const. Phoenix told the Appellant that he had purchased the clothing merchandise on Kijiji.

14. Const. Phoenix believed that there were no investigative indicators to follow in relation to Kijiji, and did not believe that Const. Power was involved in any criminal activity. Const. Phoenix therefore left the name Const. Power out of his report and did not pursue any further investigation of the matter.

15. Two witnesses testified at the hearing before the Hearing officer. They were:

a) the store manager, Roger McNair; and

b) Sgt. Paul Bastien – at the time, he was with the Professional Standards Branch of the Service. He was asked by another Sergeant of the Service to investigate the incident.

16. The Hearing Officer found Const. Phoenix guilty on all four counts of misconduct.

Appellant’s Submissions

17. Mr. Weisberg submitted that the Hearing Officer misapprehended and rejected the substance of the Appellant’s evidence and therefore, the findings of guilt were unreasonable.

18. In his factum, Mr. Weisberg states that the appeal raises three issues:

a) Did the Hearing Officer misapprehend the evidence, resulting in a miscarriage of justice?

b) Were the Hearing Officer’s reasons deficient?

c) Was the Hearing Officer’s finding of guilt unreasonable?

19. Mr. Weisberg indicated that the Hearing Officer made two specific misapprehensions of evidence, namely:

a) The statement by Const. Phoenix that he “did not want to drag Const. Power through the mud”; and

b) The evidence of Const. Phoenix that “Kijiji was an investigative dead end”.

20. Mr. Weisberg noted that in respect to the “drag him (Power) through the mud” comment, in the Appellant’s evidence, the Hearing Officer committed legal error in taking this phrase out of context and treating it as an admission of guilt by the Appellant. The Hearing Officer further interpreted the phrase as an indication that Const. Phoenix wanted to protect Const. Power from scrutiny and investigation.

21. Mr. Weisberg asserted that the Appellant used the term “drag him through the mud” to describe how it would have been inappropriate to have treated Const. Power with greater suspicion simply because he was a police officer.

22. He also pointed out that the Appellant, in his interview with Professional Standards Branch, explained that he did not name Chad Power in his report nor did he index him because:

a) he did not believe it could be established that the items were stolen;

b) he did not suspect Const. Power of any criminal activity because Power provided his personal information; and

c) he did not want to treat Power any differently than an ordinary citizen.

23. Mr. Weisberg submitted that a hearing officer must weigh the whole of the evidence and appreciate the substance of it. In this case, the Hearing Officer seized on a single phrase in isolation from the totality of the Appellant’s statement which was otherwise consistent and clear, thus he misapprehended this evidence and this misapprehension was material to his findings: see Krug v. Ottawa Police Service (January 21, 2003, OCCPS) at p.11 and also R. v. MacKenzie, (1993) 1993 CanLII 149 (SCC), S.C.J. No. 7.

24. Mr. Weisberg asserted that even though the Hearing Officer found the requisite elements of Deceit were proven on clear and convincing evidence, this finding was tainted by legal

error through a misapprehension of the evidence: see Precious v. Hamilton Police Service (May 10, 2002, OCCPS) at page 15.

25. With respect to the Kijiji issue, Mr. Weisberg stated that this was the second misapprehension of evidence by the Hearing Officer when he stated the following at page 6 of his Decision as a reason for rejecting the Appellant’s evidence:

After having given this as his reason for not pursuing the Kijiji story at all, Const. Phoenix went on to relate how early in his career, he had been successful in tracking a person down because the victim of the scam had written down the perpetrator’s license plate number. So the anecdote used to illustrate his ‘past experience’ demonstrates the polar opposite of what he was giving as his reason for not pursuing the matter. This is very curious indeed (emphasis added).

26. Mr. Weisberg argued that the Hearing Officer misapprehended the Appellant’s explanation of why he felt Kijiji was an investigative dead-end in this particular case which was detailed in his interview with the Professional Standards Branch.

27. Counsel for the Appellant argued that the Hearing Officer, in failing to appreciate the particulars of the Appellant’s explanation, created a misapprehension that negatively impacted his overall assessment of the Appellant’s credibility. The rejection of the Appellant’s evidence was an essential part of the Hearing Officer’s findings for Deceit and Discreditable Conduct. This amounts to a miscarriage of justice: see R. v. Morissey, (1995) 1995 CanLII 3498 (ON CA), OJ No. 639 (CA) at para.

93 and R. v. PM, (1983) 1983 CanLII 5316 (ON CA), OJ No. 579 (CA) at para. 15.

28. Mr. Weisberg asserted that the Hearing Officer’s decision did not follow Mousseau v. Metropolitan Toronto Police Force (July 6, 1981, OPC) at pages 3 and 4 which required that the discretion of judgment of an officer not be examined

scrupulously by the benefit of hindsight, but rather his conduct be examined under the circumstances, as they existed when the officer exercised discretion or independent judgment to see to what extent discretion was warranted.

29. He further argued that the Hearing Officer failed to consider all of the relevant facts available to the Appellant and he ought to have taken a more balanced and full account of the circumstances in assessing whether the Appellant intended to deceive and commit discreditable conduct.

30. Mr. Weisberg stated the Hearing Officer’s reasons were deficient in rejecting the Appellant’s explanation in that he failed to properly articulate reasons for rejecting it. Further, if the Hearing Officer did not believe the Appellant, the onus was on him to better outline his reasons for doing so: see Greater Sudbury (City) Police Service v. Greater Sudbury (City) Police Service [2010] OJ No 793 (Div. Ct.).

31. Counsel argued that the Hearing Officer was not uniquely positioned to assess the Appellant’s credibility as his statement, which formed the entirety of his evidence, was conveyed by audiotape: see Stitt v. York Regional Police (February 28, 1997, OCCPS) at p. 4.

32. Mr. Weisberg asked that we revoke the Hearing Officer’s decision and:

a) acquit the Appellant of Deceit and Discreditable Conduct on the basis that these findings of guilt were unreasonable, arrived at through misapprehension of the evidence, or supported by deficient reasons; or

b) quash the decision of the Hearing Officer on Deceit and Discreditable Conduct on the basis that it was arrived at through a misapprehension of the evidence or supported by deficient reasons and order a new hearing; and

c) vary the Appellant’s penalty if he is acquitted of the Deceit or Discreditable Conduct charges. In such circumstances, we should set a fit penalty.

Respondent’s Submissions

33. Mr. Brown contended that the Hearing Officer did fairly consider all relevant factors in making his decision, and that the Appellant was guilty of misconduct by Deceit and Discreditable Conduct, as well as the two counts of Neglect of Duty, which are not under appeal.

34. He noted that the appropriate test for us to consider in this appeal is whether or not the Hearing Officer’s decision was without evidentiary basis, or contained manifest errors in principle. He submitted that the Hearing Officer in this case carefully considered the evidence and made an appropriate determination: see Constable Aaron Groat v. Quinte West Police Service, (November 26, 2001, OCCPS) at page 7.

35. Mr. Brown reminded us that our role is not to substitute our opinion for that of the Hearing Officer unless the interpretation of the evidence is self-evidently wrong or there is clear error. He submitted that was not the case in this matter: see Bettes v. Peel Regional Police Service, (February 6, 1996, OCCPS) at page 10.

36. Mr. Brown noted that the “reasonableness” standard should be applied to determine if the decision should stand. Moreover, deference should be granted to the Hearing Officer in his decision–making process. In addition, a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling: see Law Society of New Brunswick v. Ryan 2003 SCC 20, [2003] S.C.J. No. 17 at page 2 and Ontario Provincial Police v. Favretto (2004) 2004 CanLII 34173 (ON CA), O.J. No. 4248 (Ont. C.A.), at page 12.

37. Mr. Brown submitted that we should not reverse the decision of the Hearing Officer unless he has made manifest errors,

ignored conclusive or relevant evidence, misunderstood the evidence, or drew erroneous conclusions from the evidence: see Constable Nathan Parker v. Niagara Regional Police Service (November 6, 2007, OCCPS), at page 13.

38. Mr. Brown noted that the Hearing Officer found that Const.

Phoenix failed to pursue further investigation in spite of the great many investigative indicators which suggested that he should have done so. He also found that there were many

of unanswered questions about the clothing, such as how

Const. Power came into possession of them.

39. Mr. Brown pointed out that the Hearing Officer, at page 4 of his Decision, found it unacceptable that Const. Phoenix chose not to pursue any of these questions, and then used his lack of information as a basis for not pursuing the matter further.

40. Mr. Brown argued that the Hearing Officer, on page 4 to 6 of his Decision, carefully analyzed the process that led to the Appellant deliberately omitting Const. Power’s name from his follow-up report.

41. Counsel for the Respondent stated that a police officer has special powers and great obligations by virtue of his or her office, and with this power comes great responsibility. He also noted that filing a report that is false, misleading or inaccurate is a breach of this responsibility: see Const. Andre Lichtenfeld v. Thunder Bay Police Service (December

9, 2003, OCCPS) at page 3.

42. Mr. Brown requested that we dismiss both the appeal with respect to the findings and the appeal with respect to penalty.

Appellant’s Reply

43. Mr. Weisberg noted that the finding of the Hearing Officer was that the Appellant was covering up for a fellow officer even though the Appellant had explained that he did not

want to appear as though he was “putting the gears” to

Chad Power.

Reasons for Decision

44. The standard of review for this Commission with respect to factual findings is reasonableness: see Dunsmuir v. New Brunswick (2008) 2008 SCC 9, S.C.J. No. 9 and also Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62.

45. Put another way, as stated in Barlow v. Ottawa Police Service (August 15, 2011, OCPC), at para. 45, the Commission’s role on appeal is:

to review… (the) decision to determine whether the conclusions reached are reasonable reflect a correct understanding and application of the law, are based upon clear and cogent evidence and are articulated in a logical manner.

46. As deference should be granted to hearing officers’ findings of credibility, these findings are reviewed from a standard of reasonableness: see Lloyd v. London Police Service (May 20,

2009, OCCPS).

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

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

2004 Carswell Ont 1583 (Div. Ct.).

48. The Appellant raises three issues:

a) whether the Hearing Officer misapprehended the evidence resulting in a miscarriage of justice;

b) whether the Hearing Officer’s reasons were deficient;

and

c) whether the Hearing Officer’s finding of guilt was unreasonable.

We will deal with each issue in turn.

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

50. The Appellant provides two examples of what he alleges to be misapprehension of evidence by the Hearing Officer.

51. In the first example, he submits that the Hearing Officer took the Appellant’s comments in his evidence, that he did not want to “drag (Const. Power) through the mud” out of context and treated the comments as an admission of his intent to deceive.

52. The Hearing Officer deals with this issue by noting in his Decision on page five, that if Chad Power had obtained these items of clothing in a completely innocent fashion, Const. Phoenix would have been doing Const. Power a considerable service by either investigating this fully, or ensuring that it was followed up thoroughly. The Hearing Officer concluded that the failure to do so left a cloud over both Const. Power and the London Police Service.

53. The second example of alleged misapprehension of evidence by the Hearing Officer centres around the Appellant’s explanation as to why he did not follow up the Kijiji investigation.

54. As the Hearing Officer notes on page four of his Decision, “if Chad Power had, in fact, purchased these items on Kijiji and had therefore been duped into purchasing stolen property, then he could very well be a victim”. The Hearing Officer

goes on to note that since the Appellant chose not to pursue the Kijiji lead, it begs the question as to how a colleague ought to be treated in terms of his being victimized.

55. If Const. Power had not purchased these items on Kijiji, rather he had obtained them in some other fashion, evidently there would be a significant reason for this matter to be thoroughly investigated both for Const. Power’s benefit and for the benefit of the London Police Service. The Hearing Officer concluded that the Appellant chose not to pursue any investigation of these questions, which is contrary to what is expected of him as a sworn member of a police service.

56. In consideration of the first issue of misapprehension of evidence raised by the Appellant, we find no such misapprehension by the Hearing Officer.

57. In considering his reasons which led to his conclusion, the Hearing Officer took into account the need to assess the Appellant’s conduct in light of the circumstances as they existed at the time the conduct occurred and not in hindsight: see Constable S. Mousseau v. Metropolitan Toronto Police Force, supra.

58. In his reasoning, the Hearing Officer considers what the Appellant knew at the time he was involved in this investigation, namely:

a) someone identified as Chad Power, attempted to return clothing to the New Balance Store;

b) Chad Power is a uniformed member of the London

Police Service;

c) The store manager is pretty certain the clothing being returned was stolen in a break and enter and theft. Nevertheless, he is very certain the clothing was not purchased at his store;

d) Chad Power tells the store staff that he had received the clothing from his mother as a Christmas gift; and

e) Chad Power tells Const. Phoenix that he had bought the clothing on Kijiji.

59. The Hearing Officer notes that, with this information, it seemed reasonable that the Appellant should have made a much greater effort to either exonerate Const. Power or try to show that he was somehow involved in the possession of these items of clothing.

60. The Hearing Officer points out that if the Appellant was uncomfortable in doing the investigation on his own, he ought to have passed it on to someone else.

61. The Hearing Officer also notes that, because of the potential for embarrassment to the Service, it seemed entirely reasonable that the Appellant ought to have informed someone in authority regarding the possible involvement of Const. Power in criminal activity.

62. The Hearing Officer observes that these actions are considered prudent, thoughtful and reasonable police procedures, whether or not these were written guidelines to follow. Furthermore, these actions do not take into account information that was discovered after the fact. They only take into consideration what the Appellant knew at the time he was involved in this investigation.

63. The Hearing Officer followed a clear and direct path in his reasoning. Consequently, we find the reasons well-written and clear, and the decisions for finding the Appellant guilty reasonable and supported by the evidence and the law.

64. In assessing the allegations of Deceit, the Hearing Officer looks at the uncontested evidence that the Appellant failed to identify Chad Power as the person in possession of clothing believed to have been stolen from the New Balance store.

65. The Hearing Officer finds the Appellant’s stated reasons for doing so, namely, not wanting to “drag him through the mud”, to be unreasonable and in no way excuses his actions.

66. We agree with the Hearing Officer’s findings.

67. The Hearing Officer, in considering the issue of Deceit, notes that to properly convict under this provision, it is necessary to show ‘an intention to deceive’: see McCoy v. Fort Francis Police Service (1989), 1 O.P.R. 16 (OPC) and Burgess v. St. Thomas Police Service (1989), 20. P.R. 822 (OPC) and Lloyd v. London Police Service, supra.

68. The Hearing Officer concludes that it was obvious that the victim of the Appellant’s deception had to be the Service. Moreover, the Appellant did not identify Const. Power because he meant to protect him from scrutiny and/or investigation by the Service. The Hearing Officer finds Const. Phoenix guilty of Deceit.

69. We concur with the Hearing Officer’s conclusion.

70. The Hearing Officer deals with the issue of Discreditable Conduct by the Appellant. In doing so, he notes that the applicable test is whether the Officer’s actions, if they were to become known, would likely bring discredit upon the Service’s reputation. In this case, the Hearing Officer has no doubt that the Appellant’s actions, which can reasonably be interpreted as ‘covering up’ for a colleague, would bring discredit to the reputation of the London Police Service.

71. We agree with the Hearing Officer’s finding that the

Appellant is guilty of Discreditable Conduct.

72. With regard to the penalty imposed by the Hearing Officer, in his oral submissions, counsel for the Appellant asked the Panel to vary it as we saw fit if the Appellant was acquitted of the Deceit or Discreditable Conduct charge.

73. The Appellant’s factum contains no submissions on the penalty aspect of the appeal. The Respondent’s factum simply requests the Panel to dismiss the appeal of penalty.

74. Having concurred with the findings of the Hearing Officer regarding misconduct, we are not prepared to vary the penalty imposed.

75. We find that the penalty and the reasons in support fall within the range of acceptable outcomes which are defensible in respect of the facts and the law.

76. We therefore dismiss the appeal of the penalty.

77. For the reasons set out above, we dismiss this appeal.

DATED AT TORONTO THIS 22nd DAY OF MARCH, 2013

David C. Gavsie John Rodriguez

Chair, OCPC Member