Robert Acton v. Constable Jason Cavanaugh and Constable Derek Graff and Durham Regional Police Service, 2013 CanLII 101395

ONTARIO CIVILIAN POLICE COMMISSION

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

2013 ONCPC 8

BETWEEN:

ROBERT ACTON APPELLANT

-and-

CONSTABLE JASON CAVANAUGH AND CONSTABLE DEREK GRAFF and DURHAM REGIONAL POLICE SERVICE RESPONDENTS

DECISION

Panel: Zahra Dhanani, Member Jacqueline Castel, Member

Hearing Date: April 30, 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

Robert Acton, Self-Represented Public Complainant/Appellant Joseph Markson, Counsel for the Respondent Officers David Cowling, Counsel for the Respondent Service

Introduction

1. This is an appeal by a Public Complainant, Mr. Robert Acton (the “Appellant”), of the May 2, 2012 decision of C/Supt. Susan C. George (the “Hearing Officer”) finding Const. Jason Cavanaugh and Const. Derek Graff (the “Respondent Officers”) not guilty of unlawful or unnecessary exercise of authority under section 2(1)(g)(i) of the Code of Conduct (“Code of Conduct”), contained in the Schedule to Ontario Regulation 123/98, enacted under the Police Services Act R.S.O. 1990, c.P. 15, as amended (the “Act”).

2. On April 18, 2009, the Appellant uttered a threat to a third party. The police were called and the Respondent Officers attended at the Appellant’s residence. An altercation between the Appellant and the Respondent Officers ensued, leading to two criminal charges of assault police against the Appellant. The Appellant was subsequently acquitted of these charges.

3. The incident leading to the charges against the Respondent Officers occurred prior to October 19th, 2009, and accordingly, all legislative references in this decision are to the Act and Regulations as they read prior to amendments effective October 19th, 2009.

4. The Appellant complained to the Durham Regional Police Service (the “Respondent Service”) on April 18, 2009 that his arrest was unlawful. The Respondent Service investigated the complaint and in a decision dated December 18, 2009, concluded that it was unsubstantiated.

5. The Appellant subsequently filed a request for a review of that decision with the Ontario Civilian Police Commission (the “Commission”). The Commission directed the matter proceed to a disciplinary hearing. The Respondent Officers were charged with misconduct under section 74(1)(a) of the Act, for engaging in discreditable conduct, specifically, unlawful or unnecessary exercise of authority in that, without good or sufficient cause, they made an unlawful and unnecessary arrest, contrary to s. 2(1)(g)(i) of the Code of Conduct. The Respondent Officers pleaded not guilty to the charge.

6. The Hearing Officer found Const. Cavanaugh and Const. Graff not guilty in her Decision of May 2, 2012.

7. The Public Complainant appeals this decision.

Decision

8. For the reasons set out below, the appeal is dismissed.

Background

9. The facts which this case turned upon were in dispute. Nevertheless, there was a significant amount of evidence which the parties did not dispute. In her Decision, the Hearing Officer succinctly summarized the evidence which the parties agreed upon at page 12:

• Mr. Acton’s frustration with his neighbours and some youth in his neighbourhood had escalated on April 18, 2009;
• There had been a heated exchange between Mr. Acton and a neighbour (“Neighbour #1”) on April 18, 2009;
• A second neighbour (“Neighbour #2”) observed some of this exchange;
• The exchange resulted from Neighbour #1 learning that a youth (“Youth A”) had been threatened by Mr. Acton and deciding to confront Mr. Acton about the threat;
• Mr. Acton admitted to making the threat;
• Neighbour #1 stated she intended to contact police;
• The police were called and attended at Neighbour #1 and Neighbour #2’s residence;
• The officers who attended were the Respondent Officers;
• The Respondent Officers spoke to Neighbour #1 and Neighbour #2 in the kitchen of their residence;
• The Respondent Officers then attended Mr. Acton’s residence;
• Const. Cavanaugh knocked on a basement window to get Mr. Acton’s attention;
• Mr. Acton came outside without socks or shoes but with a jacket on;
• Mr. Acton stated he wanted to go to his vehicle to speak with the Respondent Officers;
• The Respondent Officers advised him they could not do so but that they would speak to him in his residence; and
• Mr. Acton declined this offer and leaned against a vehicle parked in his driveway and placed his hands in his pockets.

10. At the hearing, the Appellant also admitted to being frustrated with and disrespectful to the Respondent Officers, ignoring their directions and using profanities.

11. An altercation between the Appellant and the Respondent Officers ensued. At the hearing, the Appellant testified that the altercation was initiated by the Respondent Officers. He admitted that, in the heat of the moment, he may have accidentally contacted Const. Graff’s face but he flatly denied doing anything to give the Respondent Officers reason to believe that their safety or security might be threatened. He also testified that injuries to Const. Cavanaugh’s face were self-inflicted.

12. The Respondent Officers testified that the Appellant initiated the altercation. Specifically, they testified that the Appellant shoved Const. Cavanaugh in the chest, and Const. Cavanaugh leaned toward the Appellant in an effort to regain control of a rapidly disintegrating situation. It was the Respondent Officers’ position that the aforementioned shove by the Appellant constituted an assault against a police officer. Consequently, their arrest of the Appellant was lawful and necessary.

13. The Appellant was acquitted of all charges. He subsequently complained to the Respondent Service that his arrest was unlawful. The Respondent Service investigated the complaint and concluded that it was unsubstantiated. Next the Appellant filed a request for a review of that decision with the Commission, which in turn directed that the matter proceed to a disciplinary hearing.

The Hearing

14. The Hearing took place over six days; December 1 & 2, 2011, and January 18 and 19, March 8 and 9, 2012.

15. In her Decision of May 2, 2012, at page 17, the Hearing Officer found that the Appellant did assault Const. Cavanaugh and, therefore, that the Respondent Officers’ subsequent arrest of the Appellant was lawful, saying:

After a careful review of all of the evidence, the Tribunal accepts the testimony of PC Graff and PC Cavanaugh that Mr. Acton was becoming increasingly agitated and was ignoring their requests and that they had officer safety concerns. The Tribunal further accepts and finds as a fact that Mr. Acton did shove PC Cavanaugh with his right hand in the chest area on April 18, 2009. This shove was done while the officer was attempting to gain control of a rapidly digressing situation. This shove was an assault on a police officer. The subsequent arrest of Mr. Action was both necessary and lawful.

Appellant’s Submissions

16. The Appellant submitted that the Prosecutor was ineffective and in support of that, he gave the following reasons. First, the Prosecutor made an inadequate attempt to familiarize himself with the case. Second, he ignored requests by the Appellant to introduce the criminal trial transcripts as an exhibit. Third, he did not attempt to counter efforts by the defence to diminish Mr. Acton’s credibility. Fourth, the Prosecutor introduced new evidence aimed at discrediting the Appellant.

17. The Appellant also submitted that the Hearing Officer was biased and that the “cards were stacked against [him]”.

18. The Appellant claimed that the whole hearing focused on discrediting him as opposed to examining the conduct of the Respondent Officers. He asserted that a review of the decision demonstrates that he “was being re-tried for the criminal trial.”

19. The Appellant submitted that the evidence he provided to the Prosecutor, namely a flash drive with pictures on it was not used in support of the charges against the Respondent Officers.

20. In addition, the Appellant submitted that the Hearing Officer erred in finding that the Respondent Officers’ evidence was more credible than the Appellant’s and that the Appellant assaulted Const. Cavanaugh.

Respondent Service Submissions

21. The Respondent Service took no position with respect to the merits of the appeal and limited its submissions to the allegations of prosecutorial misconduct. Mr. Cowling objected outright to both the allegation of bias and prosecutorial misconduct.

22. Mr. Cowling submitted that the Commission’s jurisprudence is clear that the prosecution is an advocate for the Tribunal rather than an advocate for the Complainant: see Constable Cate and the Peel Regional Police Service, (July 17, 1998, OCCPS).

23. He further submitted that the Appellant’s allegations of ineffective counsel should be reviewed upon a strong presumption that counsel’s assistance was in fact effective. In R v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 at para. 27, the Supreme Court of Canada outlined the standard for assessing counsel’s competence:

Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. (Emphasis added).

24. Mr. Cowling explained that Mr. Johnstone and Ms Brown recused themselves as prosecutors following their preparation meeting with the Appellant, because the Appellant showed them photographs on a USB key (the “Memory Stick”) which, in their view, may have contained evidence of the Appellant’s commission of a criminal offence. Mr. Johnstone consulted with the Law Society of Upper Canada before recusing himself. This is why the Memory Stick was not used as evidence against the Respondent Officers.

25. Mr. Cowling submitted that Counsel made tactical decisions during the disciplinary proceedings which were reasonable and, at the time, supported by the Appellant, including the decision not to seek to have admitted the transcripts from Appellant’s criminal trial.

26. Mr. Cowling submitted that Counsel’s grasp of the case is evidenced by a review of the entire record. The examination-in-chief of the Appellant, cross-examination of the Respondent Officers and closing submissions negates the Appellant’s allegation that the Prosecutor failed to familiarize himself with the case.

Respondent Officers’ Submissions

27. On the issue of prosecutorial ineffectiveness, Mr. Markson submitted that the Appellant’s four allegations against the Prosecutor are vexatious and wholly unsubstantiated.

28. Mr. Markson stated that the record shows the Appellant declined the Hearing Officer’s offer to adjourn the hearing so that the transcripts from his criminal trial could be obtained.

29. Mr. Markson submitted that the Prosecutor is not the Appellant’s counsel and cannot and should not attempt to insulate the Appellant from the effects of admissible evidence and full and proper cross-examination. The Prosecutor raised three timely and appropriate objections during the cross-examination of the Appellant. The Prosecutor also thoroughly cross-examined the Respondent Officers and made cogent submissions to the Hearing Officer in support of findings of guilt.

30. The Hearing Officer dismissed the whole body of the Memory Stick evidence and gave it no weight. It was submitted that the Hearing Officer is legally trained with expertise in admissible evidence and it was within her power to dismiss evidence that was prejudicial or not relevant.

31. Mr. Markson stated that the Appellant’s assertion that the Prosecutor and the Respondent Service introduced new evidence aimed at discrediting the Appellant, appears to reference the criminal investigation of the Appellant which flowed from the Appellant’s unprompted disclosure of a Memory Stick, containing pictures of neighbourhood children, to the Prosecutor at the time. This disclosure and the related criminal investigation were not relevant to the allegations before the Tribunal and did not factor in the Hearing Officer’s decision.

32. On the issue of bias, Mr. Markson submitted that the law prohibits ex post facto allegations of bias: see (Lionheart Enterprises Ltd. v. Righmond Hill (Town), [2004] O.M.B.D. No. 1376 and Eckervogt v. British Columbia (Minister of Employment and Investment) (2004), 30 B.C.L.R. (4th) 291). The Appellant’s failure to allege bias against the Hearing Officer over the course of numerous procedural attendances and many full hearing days constitutes an irrevocable waiver of his right to object to the Hearing Officer on appeal on the ground of alleged bias.

33. Regarding the Appellant’s many disagreements with the Hearing Officer’s assessments of credibility and findings of fact, Mr. Markson submitted that the standard of review to be applied to matters of credibility and findings of fact is as set out in Constable Armstrong and the Peel Regional Police Service, (July 18, 2002, OCCPS):

Matters of credibility and finding of fact are within the Hearing Officer’s domain. Only in exceptional cases, where the reasoning is self-evidently wrong, contain clear error or cannot reasonably be accepted, will the Commission interfere with conclusions. The question for us is whether or not the decision of the Hearing Officer was without evidentiary foundation or demonstrated manifest error in principle.

34. Mr. Markson submitted that, for the following reasons, the Hearing Officer’s decision in this case is presumptively reliable and the conclusions reached by the Hearing Officer are prima facie reasonable:

• The Hearing Officer delivered a lengthy and detailed decision.
• The Hearing Officer considered all of the evidence and accurately summarized the evidence of the witnesses at the hearing.
• The Hearing Officer clearly understood and accurately summarized the submissions of the parties.
• The Hearing Officer identified and applied the correct burden of proof.
• The Hearing Officer delivered a lengthy analysis of the evidence and detailed reasons for her findings of fact and credibility.

35. Mr. Markson submitted that the Hearing Officer was extremely dedicated to fairness and took the burden of her role very seriously. He asserted that she made every effort to conduct a hearing that was procedurally fair and then to provide a decision that would withstand appellate review.

36. Mr. Markson further submitted that deference should be accorded to the Hearing Officer’s findings of credibility, and that the Hearing Officer’s findings of fact flowed logically from her findings of credibility.

Reasons

37. The principles to be applied by the Commission on an appellate review of a disciplinary decision are well settled.

38. The standard of review is clear. A Hearing Officer must interpret and apply the law correctly. His or her findings of fact, and decision regarding penalty, must be reasonable: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9. and also Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62.

39. The Supreme Court of Canada described the standard of reasonableness as being concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process but also whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law: see Dunsmuir, supra.

40. The role of the Commission is not to second-guess the decision of the 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 an intelligible, transparent and logical manner: see Precious and Hamilton Police (2002) 3. O.P.R. 1561, (OCCPS); Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div.Ct.); and Dunsmuir, supra.

41. In certain limited cases it may be open to the Commission to reach a different conclusion than that reached by the Hearing Officer. However, we should only intervene if there has been an error in principle, or relevant factors have been ignored: see Williams and Ontario Provincial Police (1995) 2. O.P.R. 1047 (OCCPS); Wilson and Ontario Provincial Police (November 20, 2006, OCCPS); Favretto and Ontario Provincial Police, (February 13, 2002, OCCPS); Karklins and Toronto Police Service (September 25, 2007, OCCPS) and Quintieri and Toronto Police Service (2002) 3 O.P.R. 1509 (OCCPS).

42. In reviewing the Appellant’s 27 page factum and listening to his oral submissions, it is apparent that he is dissatisfied with the outcome of the disciplinary hearing. The Commission also does not underestimate the challenge before the Appellant, without the benefit of legal counsel, in preparing for an appeal of this nature. Unfortunately, it is apparent from the Appellant’s written and oral submissions that he did not grasp the narrow grounds for appeal. In his submissions, he has included personal opinions as well as information which was not introduced as evidence at the hearings, and he has not supported his assertions and accusations with evidence from the record.

43. Nevertheless, as counsel for the Respondent Officers has noted, the following three main issues for consideration on appeal can be gleaned from the Appellant’s factum:

44. Was there prosecutorial misconduct or ineffectiveness?

45. Was the Hearing Officer biased?

46. Did the Hearing Officer commit an error in her assessment of credibility and findings of fact?

47. Having reviewed the record of the disciplinary proceedings, the reasons for decision, the grounds of appeal and the submissions of the Appellant and Respondents, we are respectfully unable to agree that the Hearing Officer committed any manifest error. We find that the reasons for decision are articulated in a logical, intelligent and transparent manner and therefore meet the standard of reasonableness. In such circumstances, we find no reason to intervene.

Prosecutorial Ineffectiveness or Misconduct

45. The onus of establishing prosecutorial misconduct or ineffectiveness rests with the Appellant and there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. It is not the role of an appellate body to grade counsel’s performance or professional conduct. Rather, effectiveness complaints should be disposed of on the ground that no prejudice has occurred: see R v. G.D.B., supra, paras. 29 to 31.

46. The issue of prosecutorial misconduct was raised by the Appellant in the context of his February 26, 2013 Motion to adduce new or additional evidence. The Panel which heard that Motion observed that the Appellant appears not to have understood the prosecutor role in the proceeding (para. 35). Specifically, he seems to have believed that the Prosecutor was the legal counsel for the public complainant, which is not the case. The Prosecutor’s role is to ensure a fair hearing.

47. The Panel in the aforementioned Motion also found that the Appellant had presented no evidence of prosecutorial misconduct in the context of his decision not to introduce the transcripts from the criminal trial, (para. 35).

48. Based on our review of all of the transcripts from the hearing, we find that the Appellant has failed to meet the onus of establishing prosecutorial misconduct or ineffectiveness with respect to any aspect of the proceeding. The record shows that the Prosecutor was prepared and knowledgeable about the case, conducted a thorough cross-examination of the Respondent Officers and made submissions in support of findings of guilt. We also find that the Public Complainant was treated fairly and no prejudice against him occurred.

49. We find the Appellant’s assertion that the Prosecutor introduced new evidence aimed at discrediting the Appellant to be untrue. The Appellant disclosed the Memory Stick in question to the Prosecutor at the time. Upon consulting the Law Society of Upper Canada, this Prosecutor resigned and an unrelated criminal investigation was initiated. However, the Hearing Officer made clear at page 12 of her Decision that “[t]his issue will form no part of this proceeding and is not relevant to the allegations presently being considered.” As such, again, the Appellant was not prejudiced in any way by the disclosure which he himself initiated.

Hearing Officer Bias

50. The law is clear that a party waives their right to object to a decision-maker on the grounds of bias where they fail to object on this ground at the hearing. The British Columbia Court of Appeal held in Eckervogt v. British Columbia (Minister of Employment and Investment (2004), 30 B.C.L.R. (4th) 291 at para. 48:

I do not think it is proper for a party to hold in reserve a ground of disqualification for use only if the outcome turns out badly. Bias allegations have serious implications for the reputation of the tribunal and in fairness they should be made directly and promptly, not held back as a tactic in the litigation. Such a tactic becomes suspect when it is not acted on right away.

51. The Appellant did not raise any issue of bias at any time during the six day hearing or at the many procedural attendances.

52. Moreover, the Appellant’s factum and oral submissions do not provide any evidence or grounds to substantiate such a claim. Our review of the record indicates that the Hearing Officer was very patient and went to considerable lengths to explain the process to the self-represented Public Complainant and to ensure that he understood it.

Errors in Assessment of Credibility and Findings of Fact

53. 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.).

54. Questions of credibility are within the Hearing Officer’s domain. As the Commission held in Carmichael and Ontario Provincial Police, OCPC #98-07:

In the normal course of events, it is the Hearing Officer who has the benefit of seeing the witnesses, hearing their testimony and assessing its weight or value.

As such, deference should be given to the Hearing Officer’s findings of credibility.

55. Based on our review of the transcripts and the decision, we find that Hearing Officer understood the evidence and summarized it in a thorough and accurate manner. In drawing conclusions, the Hearing Officer considered all of the relevant evidence. No relevant evidence was ignored.

56. In addition, the Hearing Officer provided clear, logical and detailed reasons to support her findings of credibility and her factual finding that the Appellant initiated the altercation with the Respondent Officers. As such, her analysis was both intelligible and transparent.

57. The Hearing Officer’s assessments of credibility and findings of fact therefore satisfy the reasonableness standard.

58. Further, we find that the Hearing Officer understood and applied the correct burden of proof.

59. Therefore, considering the reasons for decision in totality, we can find no manifest error in principle in the interpretation and application of the facts or law.

Conclusion

60. In summary, on the issues posed in paragraph 43, we would answer all in the negative.

61. For the above reasons, we dismiss the appeal.

DATED AT TORONTO, THIS 13th DAY OF JUNE, 2013

Zahra Dhanani Member, OCPC

Jacqueline Castel Member, OCPC