Acton v. Cavanaugh, Graff and Durham Regional Police Service, 2013 ONCPC 6

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Acton v. Cavanaugh, Graff and Durham Regional Police Service, 2013 ONCPC 6

BETWEEN:

ROBERT ACTON

-and-

APPELLANT

CONSTABLE JASON CAVANAUGH AND CONSTABLE DEREK GRAFF

and DURHAM REGIONAL POLICE SERVICE

RESPONDENTS

DECISION ON MOTION

Panel: Roy Conacher Q.C., Member

Zahra Dhanani, Member

Hearing Date: February 26, 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 Appellant

Joseph Markson, Counsel for the Respondent Officers

David Cowling, Counsel for the Respondent Service

Introduction

1. Robert Acton (also “Mr. Acton” or the “Appellant”), brings a Motion (the “Motion”) to obtain an Order that new or additional evidence be permitted to be adduced on appeal and that the Durham Regional Police Service acquire and provide this evidence. The Durham Regional Police Service (the “Respondent Service”) and Constable Jason Cavanaugh (“Const. Cavanaugh”) and Constable Derek Graff (“Const. Graff”) (the “Respondent Officers”) contest the Motion.

2. The new or additional evidence sought to be permitted consists of the transcripts of a criminal trial held into criminal charges against the Appellant, at which the Respondent Officers provided evidence.

3. This evidence was not produced by the Appellant at the time of the hearing of the Motion. The Appellant stated in his motion materials that he could not afford the transcripts and that his expectation was that the Respondent Service would acquire and provide them.

Decision

4. At the end of the hearing of the Motion, we stated that the Motion is dismissed with written reasons to follow. These are those reasons.

Background

5. On April 18, 2009, it was alleged that the Appellant uttered a threat to a third party. The police were called and the Respondent Officers attended at the Appellant’s residence. There was an altercation between the Appellant and the Respondent Officers, which lead to two criminal charges of assault police against the Appellant. A criminal trial into these charges was held and the Appellant was acquitted.

6. The Appellant made a complaint to the Respondent Service about his arrest on April 18, 2009, alleging that it was an unlawful arrest. The Service investigated the complaint and concluded that it was unsubstantiated in a decision issued on December 18, 2009.

7. The Appellant filed a request for a review of that decision with the Ontario Civilian Commission on Police Services, now the Ontario Civilian Police Commission (the “Commission”), which directed the matter proceed to a disciplinary hearing. The Respondent Officers were charged with misconduct under section 74(1) (a) of the Police Services Act (the “Act”) by engaging in discreditable conduct for using unlawful or unnecessary exercise of authority in making an unlawful arrest contrary to s.2(1)(g)(i) of the Code of Conduct contained in the schedule to Ontario Regulation 123/98, as amended (the “Code”).

8. The factual circumstances 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.

9. In her decision dated May 2, 2012, C/Supt. Susan George (the “Hearing Officer”) found Const. Cavanaugh and Const. Graff not guilty of the charges.

10. The Appellant appeals the Hearing Officer’s decision and now brings this Motion.

Submissions

11. The Appellant admits that he was afforded the opportunity to adduce the transcripts into evidence at the disciplinary hearing but chose to proceed with the hearing without this evidence. He states he did this because he did not want further delays to the hearing process.

12. The Appellant submits that he did not have the financial means to obtain the transcripts for this Motion and that he believes the Service should be responsible for providing them.

13. The Appellant states that he is not a lawyer and that he did the best he could at the disciplinary hearing. He thought, at that time, that he had enough evidence to lead

to a finding of guilt regarding the Respondent Officers’

conduct.

14. The Appellant submits that the prosecutor was ineffective in assisting him at the disciplinary hearing and went even further to allege that there was prosecutorial misconduct at the disciplinary hearing because the prosecutor appeared to him to be trying to protect the police officers rather than putting forth an effort to obtain convictions.

15. Mr. Acton urged the Commission to exercise its discretion to allow the transcripts to be admitted on this appeal because he is not experienced in the disciplinary process and he made an error in judgment in agreeing to proceed

with the hearing without the use of the transcripts of the criminal proceedings.

16. Mr. Cowling rejected outright that there was “prosecutorial misconduct”. He asserted that it was the Appellant’s own actions that resulted in the transcripts not being part of the record. He argued that the Appellant was given the opportunity both by the prosecutor and the Hearing Officer to bring forward the evidence which Mr. Acton declined several times.

17. Mr. Markson submitted that the first branch of the four

part test outlined in Palmer and Palmer v. The Queen 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 has not been met, and therefore the Motion should be dismissed. This approach is consistent with Commission precedent and has recently been affirmed in Mauro v. Thunder Bay Police Service (January 24th,

2013, OCPC).

18. Mr. Markson submitted that Mr. Acton was a party to the proceeding and he did not order the transcripts from his criminal trial before the disciplinary hearing commenced on November 29th, 2011. Furthermore, the proposed new or additional evidence is not before the Commission at this hearing either, so it cannot be reviewed to meet the other three branches of the Palmer test.

19. Mr. Markson argued that the prosecutor expressly raised the Appellant’s request for the transcripts from his criminal trial before the Hearing Officer. The Hearing Officer offered to adjourn the hearing to permit the transcripts to be obtained. Mr. Markson read from 9 pages of the hearing transcript which illustrated that Mr. Acton expressly declined the offer of an adjournment and wished to proceed without the transcripts. At that stage the Respondent Service was even prepared to pay for the transcripts.

misconduct is completely without basis as demonstrated by the transcripts.

21. He argued that the criminal trial was about Mr. Acton and

his actions, not those of the Respondent Officers. In other police disciplinary hearings, transcripts from criminal trials are only produced if the police officers were criminally charged with offences related to the disciplinary charges. Mr. Markson stated that the transcripts in question had no relevance to the disciplinary hearing or this appeal.

22. Mr. Markson asserted that Mr. Acton agreed to be bound by an agreement that the criminal transcripts would not form part of the disciplinary proceeding. This was confirmed at the November 29, 2011 hearing date and again on March 8,

24. Mr. Cowling again referenced the Palmer test. The evidence was available to be presented at the hearing. Therefore, the first branch of the test has not been met.

25. The Respondent Service and Respondent Officers submit that the motion should be dismissed.

Reasons

25. S. 70(5) of the Act provides:

A hearing held under this section shall be an appeal on the record, but the Commission may receive new or additional evidence as it considers just.

26. S. 2 of the Statutory Powers and Procedures Act R.S.O.

1990, c.S.22 states:

This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be

liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

27. The leading case in Canada on whether or not to admit new or additional evidence, or “fresh” evidence as it is called elsewhere, is Palmer, supra. The Supreme Court of Canada articulated the test to be met before new or additional evidence is to be permitted on an appeal as follows:

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

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

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

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

28. The Commission has adopted and applied this test on many motions to allow new or additional evidence on an appeal.

29. It is well settled that the Appellant must meet all four branches of the test to be successful on the motion. Therefore if the first branch of the Palmer test is not met, other elements of the test become moot; see Mauro, supra.

30. Mr. Acton did not provide any information that would convince the Panel as to how the new or additional evidence

particular, we find that the Appellant fails absolutely on the first branch of the test.

31. We sympathize with the Appellant, who is not a lawyer.

However from a review of the record of the discipline hearing, we find that the Hearing Officer and the Prosecutor made reasonable efforts to ensure procedural fairness and to make sure Mr. Acton understood the process and the impact of his actions.

32. Mr. Acton himself stated that he had the opportunity to adduce the transcripts at the disciplinary hearing but made the choice not to do so. He made that choice based on an assumption that he would not need them, and now believes, after the disposition, that he should have had them introduced. This is not a compelling reason to overlook procedural fairness for all parties.

33. This issue was canvassed thoroughly at the disciplinary hearing. There is no doubt that the proposed new or additional evidence could have been adduced at the disciplinary hearing and the only reason it was not was Mr. Acton’s decision in the matter. We quote the relevant portions of the transcript to illustrate the fulsome canvassing of this issue by the prosecutor, the Hearing Officer and the defence counsel:

pg. 56

MR. JOHNSTONE: ...But before I do end, Mr. Acton raised an issue in terms of, of transcripts from the criminal trial, I just want to address that.

pg. 57

HEARING OFFICER: Yes.

MR. JOHSTONE: So, so, you know, in an abundance of caution, and in an abundance of procedural fairness, Mr. Acton has requested these transcripts, and I think that what the DRPS should do is make attempts to acquire these transcripts for the purpose of, and I believe the purpose of Cross-examination of the officers when they take the stand... So not to delay this matter any further, but in terms of calling witnesses, I mean it would be for the purpose, I take it, Mr. Acton of Cross- examination of the officers when they take the stand? Would that be correct?

MR. ACTON: Yes pg. 61 and 62

MR. JOHNSTONE: And, in an abundance of caution, perhaps you know they should be provided, you know. I don’t know of the value, but I wasn’t there at the criminal trial. And, and I know in terms as a prosecutor, my experience, I, I found them typically to be of limited value, but Mr. Acton’s for them, nevertheless.

Mr. ACTON: Yes. The email I sent Mr. Johnstone was probably sent a good two weeks ago, and Mr. Markson got a copy of that email....I also mentioned that I thought the transcripts were going to be important to this hearing. I do not want another postponement...I thought they’d be important but I don’t want another postponement.

HEARING OFFICER: Well, I guess I need to clarify for you that Mr. Johnstone is correct. As a

public complainant, if the transcripts are something that you believe are important with respect to this matter, then they likely should be obtained. However, if you your e-mail to the prosecutor and defence earlier, a couple of weeks ago, as you say, were simply suggesting that the transcripts would be helpful, it might, it might have

pg. 63-65

HEARING OFFICER: been a bit of confusion on the part of the recipients of your e-mail. So I guess for our record, I just want to be very clear, if you would like the transcripts, then we will have to adjourn so that they can be obtained. Transcripts are not something that are easy, nor quickly obtained usually because reporters are involved in many, many things.

MR. ACTON: I don’t want an adjournment. That’s my answer.

HEARING OFFICER: I understand that, Mr. Acton. MR. ACTON: So no transcript.

HEARING OFFICER: But this hearing is all about fairness, and fairness to you and fairness to you and fairness to the officers and everybody else involved in this. So I want to be abundantly clear and I want you to be very cautious. This is not about adjournments. This is about what’s fair for you. So in making your decision about transcripts, you need to understand that going forward you won’t have those if you don’t choose to continue with that request.

MR. ACTON: I’ve always got six different statements from the two officers. I think we can go with that.

HEARING OFFICER: Great. Thank you. I think that issue of transcripts is then put to rest. Mr. Johnstone, ball is in your court.

MR. MARKSON: What I -- the defence expectation would be that if this....that this is a final decision in respect to the issue of transcripts, that I won’t have to worry about having to reopen the evidence or to call my clients back to revisit Cross-examination or Examination in-Chief further to some production of the transcripts at a later date, that this is a binding understanding for both sides that transcripts will not form part of this proceeding for the purpose and the sole purpose of challenging witnesses in respect of prior inconsistent statements.

HEARING OFFICER: Seems to me that Mr. Acton has been quite clear. Prosecution was simply making comments to assist the public complainant, who is Mr. Acton. He understand that....

MR. ACTON: Yes, I do.

HEARING OFFICER: ....he will not have access to those things, and he has other statements that he can use. So I think the matter, I am clear; the matter is at an end for the purpose of this proceeding.

34. Based on the above record, the conclusion to this issue is very clear. We agree with Mr. Markson and Mr. Cowling that the first branch of the Palmer test has not been met. There is no dispute that the proposed new or additional evidence could have been adduced at the hearing.

35. With respect to the allegations of prosecutorial misconduct, we find that the Appellant misunderstood the roles of the parties. The prosecutor is not the legal counsel for the public complainant. While the two roles may coincide to some extent the duties are still different. Furthermore, the complainant has an obligation to present evidence to support the allegations of prosecutorial misconduct. The Appellant provided no such evidence and therefore these allegations cannot be supported. From our examination of the record there was no misconduct on the part of the prosecutor and indeed the prosecutor did much by way of ensuring procedural fairness for the public complainant.

36. We find the Hearing Officer acted reasonably in dealing with the issue of the transcripts and that both the Prosecutor and the defence counsel canvassed the issue of the transcripts in a diligent and prudent manner.

37. While it is not necessary to support our Decision, we note that it is imperative that the proposed new or additional evidence sought to be introduced be presented at the hearing of the motion. Otherwise there is no way to assess whether such evidence meets branches 2, 3 and 4 of the Palmer test. In this case it was not necessary because we did not move beyond the first branch of the test. However, for all motions for leave to introduce new or additional evidence on a disciplinary appeal, procedural fairness requires that the other parties be provided an opportunity to review that material.

38. The Motion is dismissed.

DATED AT TORONTO, THIS 8th DAY OF April, 2013

Roy Conacher, Q.C. Zahra Dhanani

Member, OCPC Member, OCPC