O'Reilly v. Ottawa Police Service, 2014 CanLII 100625

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: O’Reilly v. Ottawa Police Service, 2014 ONCPC 20

BETWEEN:

CONSTABLE MICHAEL O’REILLY APPELLANT

-and-

OTTAWA POLICE SERVICE RESPONDENT

DECISION

Panel: David C. Gavsie, Associate Chair Jeffrey L.D. King, Member

Hearing Date: July 30, 2014 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:

William Carroll for the Appellant. Robert Houston for the Respondent.

ISSUES

1. At issue in this appeal is whether the findings by Deputy Chief Terence Kelly (ret.) (the “Hearing Officer”) that the release by Const. Michael O’Reilly (“Const. O’Reilly” or sometimes, the “Appellant”) of Leigh Todd Graveline (“Mr. Graveline”) after stopping and questioning him on the morning of November 28, 2011 constituted:

a) Neglect of Duty; and

b) Discreditable Conduct,

were reasonable.

The second issue is whether the penalty imposed by the Hearing Officer was harsh and excessive in the circumstances of this case.

INTRODUCTION

2. Constable O’Reilly, of the Ottawa Police Service (the “Service”) was charged with one count of Neglect of Duty and one count of Discreditable Conduct under sections 2(c)(i)(a) and 2(1)(a)(x), respectively, of the Code of Conduct being a Schedule to Ontario Regulation 268/10 as amended, and therefore contrary to section 80(1) of the Police Services Act, R.S.O. 1990, c.P.15, as amended (the “Act”).

3. The detail of the Neglect of Duty charge was that Const. O’Reilly failed to investigate and apprehend Mr. Graveline where reasonable grounds existed to do so.

4. The detail of the Discreditable Conduct charge was that Const. O’Reilly did not fulfill his duties as a police officer to apprehend criminals and assist victims of crime.

5. A hearing was held before the Hearing Officer. Const. O’Reilly pled not guilty to both charges.

6. In his decision as to Findings dated April 22, 2013, the Hearing Officer found Const. O’Reilly guilty of both charges.

7. The Hearing Officer in his penalty decision of September 10, 2013 imposed, for the Neglect of Duty finding, a reduction in rank to Second Class Constable for a period of three months, returning to the current rank of First Class Constable on completion of the three months. For the Discreditable Conduct finding, the Hearing Officer imposed a similar reduction in rank. Both penalties were ordered to run concurrently.

8. Const. O’Reilly is appealing both the findings of, and the penalties imposed by, the Hearing Officer.

DECISION

9. For the reasons that follow, the appeal is allowed as to the findings, making it unnecessary to deal with the penalty issue.

BACKGROUND

10. Some time before 8:00 a.m. on November 28, 2011, C.P.* placed a 9-1-1 call to the Service stating that her ex-boyfriend, Mr. Graveline, was at the back door of her residence, that he was not supposed to be there and that she suspected he was trying to forcibly open the door.

11. Const. O’Reilly, Const. Joseph Defranco and Const. Denise Couperus responded to the 9-1-1 call.

12. Before arriving at the residence, Const. O’Reilly stopped Mr. Graveline in his car in a parking lot across the street from the Service’s Greenbank Road police station.

13. Const. Couperus attended C.P.’s residence and talked with C.P. En route, Const. Couperus received reports from dispatch that there had been ongoing harassment issues involving Mr. Graveline and C.P.

14. Const. Couperus testified in chief that there were reasonable grounds for an attempt break and enter charge against Mr. Graveline. She spoke to Const. O’Reilly by telephone advising him of ongoing harassment issues, her observations at C.P’s residence, telling him that Mr. Graveline was not supposed to be there. However, during cross-examination, Const. Couperus testified that she did not see on her computer any legal restriction to Mr. Graveline being at C.P.’s residence, and that while at C.P.’s residence that morning, she did not have a state of mind that would have allowed her to arrest Mr. Graveline.

15. Const. Defranco received information en route to C.P.’s residence that an ex-partner of hers was trying to break into her residence. He also received information that Const. O’Reilly had stopped Mr. Graveline’s car. Const.

*Initials used for anonymity

Defranco then proceeded to where the stop occurred. On arriving, Const. Defranco saw Const. O’Reilly’s cruiser in the parking lot parked immediately behind Mr. Graveline’s car, with Const. O’Reilly standing at the driver’s door of Mr. Graveline’s car, talking with Mr. Graveline.

16. Const. Defranco testified that he spoke to Const. O’Reilly within two or three minutes after arriving in the parking lot. He advised Const. O’Reilly that the Partner Assault Unit of the Service was investigating Mr. Graveline for harassment against C.P. and that he was also being investigated for theft of gasoline. He advised Const. O’Reilly to contact Const. Couperus who was at C.P.’s residence.

17. Earlier in November, Detective Kenneth Haddow (“Det. Haddow”) had commenced an investigation into thefts in the Ottawa area. The thefts involved a hospital donation box, a poppy donation box, an 18 litre bottle of water and the theft of gasoline by a driver who did not pay. Det. Haddow’s investigation identified Mr. Graveline as the perpetrator of those thefts.

18. Det. Haddow spoke to Mr. Graveline who agreed to turn himself in to be arrested on theft charges on November 28, 2011 at noon. Det. Haddow testified that he had entered a prosecution summary onto the Service’s computer system which if accessed by an officer would show that a warrant was to be sought.

19. Starting on October 24, 2011, C.P. had complained to the Service about being harassed by Mr. Graveline. Mr. Graveline was under investigation for harassment by the Partner Assault Unit. The investigation was headed by Detective Lissa Baldwin (“Det. Baldwin”).

20. Det. Baldwin put a premise history on C.P.’s residence address on the Service’s system, which is a flag or alert that is either read over the radio or brought up in a car lap top. She did not prepare or file a prosecution summary with respect to the alleged harassment until November 30, 2011, two days after the November 28, 2011 stop and release of Mr. Graveline by Const. O’Reilly.

21. Const. O’Reilly testified that after he stopped Mr. Graveline, he received information from a CPIC search and from Const. Couperus and Defranco. Before receiving information from Const. Couperus, Const. O’Reilly found there were no related restraining orders or court orders applicable to C.P.’s residence on his computer. From the information he received from Const. Couperus, Const. O’Reilly determined that Mr. Graveline had not gained entry to C.P.’s residence and that there was no visible damage to the exterior of the residence. Therefore to his mind there were no reasonable or probable grounds to arrest Mr. Graveline for attempt to break and enter.

22. A further computer search by Const. O’Reilly told him that the Partner Assault Unit had been investigating Mr. Graveline for about a month but no charges had been laid.

23. Const. O’Reilly testified that he knew from the media that Mr. Graveline was the suspect in some thefts. He called up Det. Haddow’s prosecution summary about the hospital box and poppy box thefts and also the gas drive-off theft. He concluded from this summary that Mr. Graveline had been arrested, processed and released. He admitted this was a mistake on his part.

Appellant’s Submissions

24. Mr. Carroll stated that the Hearing Officer’s findings of fact were not supported by the evidence. He submitted as examples that Const. Couperus could not have passed on advice to Const. O’Reilly to arrest Mr. Graveline for attempt break and enter because she was not sure herself. Also, while Sgt. Rolofs, Const. O’Reilly’s supervisor, stated in direct examination that Const. O’Reilly should have arrested Mr. Graveline, on cross-examination, Sgt. Rolofs said it was not a clear cut case that Mr. Graveline should have been arrested for harassment. We find that neither of these doubts was taken into account by the Hearing Officer.

25. Mr. Carroll argued that without any factual foundation, the Hearing Officer rejected the evidence of Const. O’ Reilly.

26. He submitted that the Hearing Officer erred by ignoring the subjective component of the test for reasonable and probable grounds. An arresting officer must subjectively have reasonable and probable grounds on which to base an arrest without a warrant. The grounds must also be justifiable from an objective point of view – see R. v. Storrey, [1990] 1. S.C.R. 241, at paras. 15-17.

27. The Hearing Officer in finding that Const. O’Reilly had the requisite grounds to arrest Mr. Graveline focused on the objective grounds. We find that neither the report of Det. Baldwin nor Const. Couperus’ observations at the residence were sufficient to convince Const. O’Reilly to find that, subjectively, he had reasonable and probable grounds to arrest Mr. Graveline that morning for attempt break and enter or harassment.

28. Regarding the Neglect of Duty Charge, Mr. Carroll submitted it is a two part test. First it must be shown that an officer was required to perform a duty and failed to do so because of neglect, or did not perform the duty in a prompt or diligent manner. If that is proven, then to avoid discipline, the officer must show that he or she had a lawful excuse for not performing the duty – see Soley and Ontario Provincial Police (May 27, 1996, OCCPS).

29. Mr. Carroll argued that Neglect of Duty is not an absolute liability offence. There must be willfulness in the neglect or to a degree that makes it cross the line from a performance matter to one of misconduct. Mere failure to comply is not enough. There must be some evidence of deliberateness or recklessness. An honest mistake is an answer to the charge – see P.G. v. Attorney General of Ontario, [1996] O.J. No. 1298, paras. 83-84.

30. Const. O’Reilly read Det. Haddow’s report about the thefts of the boxes and water bottle on his in-car computer. Based on his review, he came to the erroneous conclusion that Mr. Graveline had been arrested, processed and released. Det. Haddow’s evidence was that he puts documents into the Service’s system once he is satisfied there is going to be a charge without waiting for the charge to be laid. This practice is not pursuant to any directive of the Service. It is Det. Haddow’s practice and the practice of investigators, which is known by officers who spend time in some investigations. Mr. Carroll submitted those in patrol, like Const. O’Reilly, would not know about this practice. Any neglect by Const. O’Reilly was not wilful. It was an honest mistake.

31. Regarding the criminal harassment report of Det. Baldwin, Const. O’Reilly reviewed this report on the morning of November 28, 2011 but it did not at that time show reasonable and probable grounds to arrest Mr. Graveline. The Hearing Officer took issue with the fact that Const. O’Reilly did not attempt to contact anyone from the Partner Assault Unit to seek clarification.

32. Mr. Carroll submitted that the Hearing Officer has a duty to give reasons – see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para 39. No reasons were provided on the finding of Discreditable Conduct. He failed to set out the evidence on which this finding was based.

33. Mr. Carroll stated that the Hearing Officer failed to provide cogent reasons as to why he found Const. Defranco and Const. Couperus “truthful and credible”, but found Const. O’Reilly not to be a “credible witness”. The Hearing Officer cannot rely on the demeanour of a witness in assessing credibility – see Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1951] B.C.J. No. 152 at paras. 10-11.

34. Mr. Carroll argued that the Hearing Officer held that the actions of Const. O’Reilly were motivated by him not wanting to get involved rather than his preserving evidence. This was not factually borne out. Further, the Hearing Officer gave lip service to Const. O’Reilly’s career.

35. Mr. Carroll submitted that the Hearing Officer misapprehended the evidence. He made a mistake regarding reasonable and probable grounds. The Commission has the power to vary, confirm, revoke or substitute its own decision – see Dingman and Ontario Provincial Police (September 16, 2003, OCCPS).

36. Mr. Carroll stated that the penalty in this case should have been a loss of pay, not a reduction in rank for three months – see Maguire and Peterborough-Lakefield Community Police Service (July 28, 2008, OCCPS), Dinsdale and Ontario Provincial Police (December 30, 2004, OCCPS), and Berger and Toronto Police Service (May 24, 2007, OCCPS).

Respondent’s Submissions

37. Mr. Houston submitted that there are no errors in the Hearing Officer’s decision. His decision is based on the evidence before him. The Panel should not re-try the case.

38. The Neglect of Duty charge came about because Const. O’Reilly failed to investigate and apprehend Mr. Graveline. The Discreditable Conduct arose in that Const. O’Reilly did not fulfill his duty to apprehend a criminal and assist a victim of crime.

39. Mr. Houston said that later in 2011 and in 2012, Mr. Graveline pled guilty to harassment, theft and fail to attend charges.

40. Mr. Houston submitted that Const. O’Reilly could have found more information from Det. Baldwin regarding the harassment, but did not. He knew from newspaper reports that Mr. Graveline was under investigation for thefts. Const. O’Reilly told Const. Defranco that in his opinion Mr. Graveline was on a drug binge and living out of his car. He also knew that an unwanted person had shown up earlier that morning at C.P.’s residence.

41. Mr. Houston argued that the length of time Const. O’Reilly stopped Mr. Graveline is important. Const. O’Reilly gives no information as to time in his notes. Mr. Graveline drove off with a warning by Const. O’Reilly not to go to C.P.’s residence. Mr. Houston asked, if Const. O’Reilly was unsure of Det. Baldwin’s investigation, why would he tell Mr. Graveline not to go there?

42. Mr. Houston said that Const. O’Reilly did not commence his search on the computer system until after he let Mr. Graveline go. He started at 8:21 a.m. Yet Const. O’Reilly testified that he did not release Mr. Graveline until after he had made the computer search.

43. Mr. Houston submitted that Const. O’Reilly used his cell phone in talking to Const. Couperus. However he chose not to use it when he did not make a call to the Partner Assault Unit. Similarly, Const. O’Reilly could have called to find out more regarding the theft charges when he was unsure what the information on the computer meant. Instead, Const. O’Reilly concluded that Mr. Graveline had been arrested, processed and released.

44. Const. O’Reilly attended at parade on the morning of November 29, 2011 during which Sgt. Rolofs read out a “be on the lookout for” or BOLO report about Mr. Graveline. Const. O’Reilly did not immediately bring to Sgt. Rolofs’ attention that he had an interaction with Mr. Graveline the day before.

45. Mr. Houston argued that the jurisprudence is clear that the Commission should not retry the case. The evidence before the Hearing Officer led him to draw the conclusions he did. Const. O’Reilly’s evidence was held not to be credible.

46. Mr. Houston referred to Mowers and Hamilton-Wentworth Regional Police Service (March 18, 1999, OCCPS). Const. Mowers was found to have committed two separate acts of misconduct arising from the same incident: he failed to arrest a complainant’s husband for breach of recognizance, and he failed to conduct a complete and thorough investigation. Const. Mowers had received previous discipline. He received in this case a reduction in rank from First to Second Class Constable for a period of six months. His appeal to the Commission was dismissed.

47. Mr. Houston referred to Harmer and Sarnia City Police Force (March 5, 1981, OPC) in which the officer took 44 minutes to arrive at a dispatched call. He was told the call was a “Code 2”, being of an urgent nature. It should have taken Const. Harmer 16 minutes to arrive at the call. He was demoted from First to Second Class Constable. The officer appealed and his demotion was confined to five months. His further appeal to the Commission was dismissed.

48. Mr. Houston referred to Andrus and Metropolitan Toronto Police (July 21, 1985, OPC) in which the officer was getting his hair cut when his partner told him they were asked to attend a bank alarm. The officer remained in the barber’s chair and refused to assist. He was found guilty of Neglect of Duty and received a penalty of reduction in rank from First to Second Class Constable for one year. On appeal, the length of the demotion was reduced to six months which the Chief could review after three months.

49. Mr. Houston submitted that the three month reduction in rank given to Const. O’Reilly was both reasonable and appropriate.

Appellant’s Reply

50. Mr. Carroll submitted that none of the cases cited by the Respondent came close to being comparable with the facts of this case. Mowers, supra, was much more egregious. The officer also had five prior discipline matters over a nine year period. Harmer, supra, had the penalty of reduction in rank reduced to five months on appeal. Andrus, supra, received 12 months reduction in rank with a good record, reduced to six months on appeal.

51. Mr. Carroll argued that Const. Couperus said in her testimony that she ultimately came to the same conclusion as Const. O’Reilly, namely that when she was at C.P.’s residence that morning, there were no reasonable and probable grounds to charge Mr. Graveline with attempt break and enter. She also testified that she did not use the word “harassment” when talking that morning to Const. O’Reilly.

REASONS

52. The Commission has consistently stated that:

a) for a hearing officer’s findings of fact and imposition of a penalty the standard of review is reasonableness: see Dunsmuir v. New Brunswick supra; and,

b) for a hearing officer’s interpretation and application of the general law the standard is correctness: see Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3rd) 1 (Ont. C.A.).

53. The Supreme Court of Canada described the standard of reasonableness in Dunsmuir v. New Brunswick, supra, in the following terms:

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.

54. 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.).

55. In certain limited cases it may be open to a panel to reach a different conclusion from the hearing officer. However, a panel should only intervene if there has been an error in principle, or relevant factors have been ignored: see Wilson and Ontario Provincial Police (November 20, 2006, OCCPS) affirmed 2004 CanLII 34173 (ONCA), Favretto and Ontario Provincial Police (February 13, 2002, OCCPS), and Karklins and Toronto Police Service (September 25, 2007, OCCPS).

56. 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 hearing officer’s conclusions cannot reasonably be supported by the evidence: see Toronto Police Service v. Blowes-Aybar, 2004 CanLII 34451 (Div. Ct.).

57. The issues for the Panel to consider in this appeal are the following:

a) based on the evidence, did reasonable and probable grounds exist on the morning of November 28, 2011 for Const. O’Reilly to arrest Mr. Graveline?

b) did the Hearing Officer determine credibility of witnesses in an appropriate manner?

c) were the Hearing Officer’s factual findings based on clear and cogent evidence?

d) was there duplicity in the two charges against Const. O’Reilly?

e) were the Hearing Officer’s decisions on findings and as to penalty reasonable in the circumstances?

Did Reasonable and Probable Grounds to Arrest Exist?

58. Both charges against Const. O’Reilly relate to his not apprehending Mr. Graveline on the morning of November 28, 2011. But, did reasonable and probable grounds exist to do so?

59. In order for Mr. Graveline to be arrested without a warrant being issued, as was the case here, Const. O’Reilly was required to have reasonable and probable grounds both subjectively and objectively that an offence had been committed: see R. v. Storrey, supra.

60. There were three possible offences: theft, criminal harassment, and attempt break and enter.

61. Regarding theft, Const. O’Reilly testified he read Det. Haddow’s online prosecution summary indicating a warrant would be sought. Const. O’Reilly, not being an investigator, understood from this document that Mr. Graveline had been arrested, processed and released on the theft charges.

62. Sgt. Rolofs, who was Const. O’Reilly’s supervising officer, testified he did not criticize Const. O’Reilly’s understanding of Det. Haddow’s prosecution summary about the thefts. In their discussion on November 29, 2011, Sgt. Rolofs told Const. O’Reilly that the practice related to posting prosecution summaries differed from investigator to investigator and that he had to be careful when reviewing such summaries as they may not be complete or they may be premature.

63. It is not clear whether Const. O’Reilly was or became aware that Mr. Graveline was to turn himself in at 12 noon on November 28, 2011, to be charged with theft. That in fact happened.

64. Regarding criminal harassment, on the morning of November 28, 2011, Const. O’Reilly reviewed Det. Baldwin’s harassment report online. There were many emails over a month, but there was no indication that Mr. Graveline was to be arrested. Const. O’Reilly concluded that the report did not provide him at that time with reasonable and probable grounds to arrest Mr. Graveline for harassing C.P. Const O’Reilly was greatly influenced by the fact that based on his online review, the harassment matter had been with Det. Baldwin for 30 days and no charge had been laid.

65. Also on the morning of November 28, 2011, Const. Defranco reviewed Det. Baldwin’s report about the alleged harassment of C.P. He agreed there was nothing in the report about charges pending against Mr. Graveline for criminal harassment.

66. Det. Haddow reviewed Det.Baldwin’s report on November 20, 2011. He described it as “bare bones” and said the report, at that date, did not provide enough information to form reasonable grounds to arrest Mr. Graveline for harassment. He called Det. Baldwin. She did not provide any additional information about the harassment other than that set out in the report. Det. Baldwin agreed that her report was “bare bones”, prior to her completing it on November 29 or 30, 2011, subsequent to the events of November 28.

67. Det. Baldwin testified she formed reasonable grounds to arrest Mr. Graveline on a date between November 17 and 20, 2011. She testified that when she has grounds to arrest a person, she puts out a broadcast for that person’s arrest. She did not put out a broadcast to arrest Mr. Graveline because the premise history was already in place, and because Det. Baldwin was away from work on a course. She agreed that had she put out a broadcast to arrest Mr. Graveline for harassment of C.P., the fact there were reasonable grounds to arrest Mr. Graveline for harassment would have come to the attention of officers on patrol on the road, like Const. O’Reilly.

68. Sgt. Rolofs testified that on November 28, 2011, Det. Baldwin’s harassment report was a “work in progress”, a “working draft”, and did not say anything about arresting anyone.

69. Regarding the attempt break and enter, Const. Couperus testified that when she attended C.P.’s residence on the morning of November 28, 2011, the interior door at C.P.’s residence had not been opened, she saw no damage to the interior door, there were no signs of forcible entry, and Mr. Graveline had not gained entry that morning. Const. Couperus also testified that when she was at C.P.’s residence that morning, she did not have a state of mind that would have allowed her to arrest Mr. Graveline for attempt break and enter.

70. Const. Defranco testified he never found reasonable and probable grounds to arrest Mr. Graveline for break and enter or for attempt break and enter.

71. Given all of the circumstances, we find that on the morning of November 28, 2011 Const. O’Reilly reasonably concluded that reasonable and probable grounds to arrest Mr. Graveline for attempt break and enter did not exist.

72. From an objective standard, reasonable and probable grounds to arrest Mr. Graveline for criminal harassment did not exist on the morning of November 28, 2011. Similarly, given the non-standard manner that investigators of the Service put theft information online, it is not difficult for a person like Const. O’Reilly with no training in investigations to make a mistake and conclude, as he did, that no reasonable and probable grounds existed that morning to arrest Mr. Graveline for theft (i.e. that he had already been arrested and released). With regard to an arrest for attempt break and enter, none of the officers who answered the 9-1-1 call that morning thought there were reasonable and probable grounds for such an arrest.

Did the Hearing Officer Determine Credibility of the Witnesses in a Reasonable Manner

73. The Hearing Officer’s findings as to credibility of witnesses appearing before him are to be given deference: see Toronto Police Service v. Blower-Aybor, supra.

74. However, if the Hearing Officer fails to set out cogent reasons for believing or disbelieving evidence, the Commission will intervene: see Carriere and Greater Sudbury Police Service (February 7, 2007, OCCPS); Law Society of Upper Canada v. Neinstein, supra, and Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services 1985 CanLII 2053 (ON HCJ), 51 O.R. (2nd) 302 (Div. Ct.). Demeanour of a witness is not sufficient for a trier of fact to rely on to assess credibility: see Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1951] B.C.J. No. 152 at paras. 10-11.

75. The Hearing Officer stated in his Decision as to Findings:

(I) closely observed the demeanour of Constables Couperous and Defranco… I found them to be truthful and credible when recollecting the events of November 28, 2011. The manner in which they gave their evidence was straightforward and there was no indication of embellishment. Their testimony bore a sense of reason under the circumstances.

76. With respect to Const. O’Reilly, the Hearing Officer wrote: Having closely observed…O’Reilly testify… I do not find him to be a credible witness.

77. A hearing officer must give reasons for his or her credibility findings, not simply that he or she preferred one over other of the witnesses appearing before them. As the British Columbia Court of Appeal stated at para. 10 of Faryna v. Chorney, supra:

If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box… the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness…A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth…

78. The Hearing Officer’s decision turned on his credibility findings. We find that there is no basis in the record for these findings. Nor are there reasons for his finding that Const. O’Reilly was not credible, except for a comment or two about Const. O’Reilly’s demeanour/conduct while testifying during the hearing.

79. As set out in Pitts, supra, the Hearing Officer should have considered the following factors and given appropriate reasons:

a) the appearance and demeanour of the witness;

b) the extent of the witness’ opportunity to observe the matter or matters about which he testified;

c) has the witness any interest in the outcome of the case?

d) does the witness exhibit any partisanship or any leanings towards the side that called him?

e) did his evidence make sense?

f) was the evidence of the witness contradicted by the evidence of another witness whom the adjudicator considers more worthy?

g) was a previous statement given that is inconsistent with his evidence at the hearing?

80. The Hearing Officer did not give reasons, other than demeanour or conduct, for his credibility findings. He should have. As a result this is, in the view of the Panel, a serious error on the Hearing Officer’s part.

Were the Hearing Officer’s Findings Based on Clear and Cogent Evidence

81. We find that based on his credibility findings, the Hearing Officer focused on the information available to the other Service officers and their opinions of what action Const. O’Reilly should have taken that morning rather than letting Mr. Graveline go.

82. In making his findings against Const. O’Reilly, the Hearing Officer failed to focus on the information then available to Const. O’Reilly, and whether his decision not to further detain or arrest Mr. Graveline that morning, based on the information he knew, saw, heard or was told, was reasonable.

83. Det. Baldwin testified she had reasonable and probable grounds to arrest Mr. Graveline for harassment on or about November 17 to 20, 2011. The Hearing Officer made no mention that Det. Baldwin’s information available to Const. O’Reilly on the morning of November 28, 2011 on his in-car computer made no mention of an arrest or there being reasonable and probable grounds to arrest Mr. Graveline for criminal harassment. Const. O’Reilly did not know that Det. Baldwin had formulated her opinion on November 17 to 20. Her report was “bare bones” until a day or two after November 28, 2011.

84. In finding that Const. Defranco believed there were reasonable and probable grounds to arrest Mr. Graveline on the thefts, the Hearing Officer did not give effect to the evidence that Const. O’Reilly’s supervisor, Sgt. Rolofs, did not criticize Const. O’Reilly’s understanding of Det. Haddow’s online prosecution summary regarding the thefts, namely, that Mr. Graveline had already been arrested and released on the theft charges. Sgt. Rolofs testified he told Const. O’Reilly that investigators often put prosecution summaries online prematurely and said reports cannot be relied upon. He did not dispute or criticize Const. O’Reilly’s appreciation of Det. Haddow’s online report, which is what Const. O’Reilly relied upon, and which was premature and inaccurate in that it included information about steps that had not yet been taken, namely arresting Mr. Graveline.

85. More importantly, the Hearing Officer failed to give Const. Couperus’ admission under cross-examination, that while in C.P.’s residence the morning of November 28, 2011, she did not have reasonable and probable grounds to arrest Mr. Graveline, any weight. Const. O’Reilly’s assessment of the information obtained in responding to the 9-1-1 call is consistent with Const. Couperus. There were no reasonable and probable grounds to arrest Mr. Graveline for attempt break and enter. The Hearing Officer misapprehended Const. Couperus’ testimony.

86. Consequently, we find that the factual findings by the Hearing Officer were not based on clear and cogent evidence, and were made in error.

Was There Duplicity in the Two Charges Against Const. O’Reilly?

87. In his Decision, the Hearing Officer did not discuss the evidence in relation to the two charges separately. The Neglect of Duty charge was issued because Const. O’Reilly failed to investigate and apprehend Mr. Graveline where it was alleged reasonable grounds existed to do so. The Discreditable Conduct charge was issued because Const. O’Reilly did not fulfill his duties as a police officer to apprehend criminals and assist victims of crime.

88. Both charges revolve around the same omission, namely Const. O’Reilly’s failure to arrest or detain Mr. Graveline when he stopped him in his car on the morning of November 28, 2011.

89. However the Hearing Officer after putting down Const. O’Reilly’s evidence and motives for not apprehending Mr. Graveline simply concludes:

After careful consideration of all the facts in this case, I find the prosecution has proved its case on clear and convincing evidence, and, therefore, I find Police Constable Michael O’Reilly, Badge Number 1271, guilty on the charges of Neglect of Duty, and Discreditable Conduct.

90. There is no discussion of the elements of each charge until the concluding paragraph.

Were the Hearing Officer’s Decisions as to Findings and Penalty Reasonable

91. The Panel finds that the Hearing Officer’s decision on findings was not reasonable. His decision was based on his finding that Const. O’Reilly lacked credibility, and his finding that Const. Couperus, Const. Defranco and Sgt. Rolofs were credible.

92. In our view, in arriving at his Decision as to Findings, the Hearing Officer made clear his contempt for Const. O’Reilly with regard to how Const. O’Reilly handled Mr. Graveline:

In this particular case the witnesses, fellow officers, together with other documented evidence available to Constable O’Reilly on his online computer, gave him all the necessary grounds to arrest and/or detain Leigh Todd Graveline for further investigation. However, he chose to disregard all of this.

A witness’s information may be disregarded only when the officer who receives it has a justifiable reason to believe that the witness has poor creditability. In this set of circumstances that is clearly not evident.

During his testimony in-chief Police Constable O’Reilly appeared comfortable and in control. However, under cross-examination, he became visibly annoyed and, on several occasions, had to be told to answer questions asked of him by the Service prosecutor.

Having closely observed Police Constable O’Reilly testify in this Tribunal, I did not find him to be a credible witness, rather one who clearly had no intention of dealing with the situation involving the ongoing investigations of Leigh Todd Graveline, and his actions on the day in question at the home of C.P. I found his evidence defied reason and common sense.

The actions, or rather the inaction, of Police Constable O’Reilly in this investigation, were obviously motivated by him not wanting to get involved in this incident. He was content to caution Leigh Todd Graveline that there were ongoing investigations and there may be charges forthcoming.

The extent of the notes made by O’Reilly, compromised the name of the complainant, comprised the name of the complainant and her address, along with a case note in the margin of his notebook. This was wilfully inadequate. He did not see fit to document in his notes the information he received from Constable Couperus and Defranco, updating him on the status of the Graveline investigation. His total disregard of proper notes and procedures showed his lack of concern and interest in pursuing the investigation of Leigh Todd Graveline.

93. In the above summation, the Hearing Officer paid no attention whatsoever to the evidence of Const. Couperus and Const. Defranco that grounds for an attempt break and enter may have not existed, and that of Sgt. Rolofs telling Const. O’Reilly after November 28, 2011 that when reviewing investigators’ summaries, one had to be careful because they not be complete, or they may be premature. Sgt. Rolofs also testified that Det. Baldwin’s harassment report was a “work in progress” and there was nothing known about arresting anyone. Finally, Sgt. Rolofs testified that based on the information available to Const. O’Reilly on the morning of November 28, 2011, in his opinion it was not clear cut that Const. O’Reilly had reasonable grounds to arrest Mr. Graveline. None of this was mentioned in the Hearing Officer’s summation, or in his findings about credibility of witnesses.

94. Pursuant to s. 87(8) of the Act, the Commission may confirm, vary, or revoke the decision being appealed, or substitute its own decision.

95. The Panel has considered the Decision as to Findings of the Hearing Officer and finds significant errors were made. Further the Decision was not reasonable given the testimony of the witnesses, particularly in cross-examination. The evidence that the Hearing Officer referred to in his decision was not clear and convincing to result in a decision of guilty on either of the two counts.

96. The Panel chooses to substitute its own decision for that of the Hearing Officer.

97. Based on the reasons stated above, the Panel finds Const. O’Reilly not guilty on both charges against him. As a result, there is no need to consider whether or not the penalty was reasonable.

DATED AT TORONTO, THIS 5TH DAY OF DECEMBER, 2014

_ David C. Gavsie Jeffrey L.D. King Associate Chair, OCPC Member, OCPC