ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O.
1990, C.P.15, AS AMENDED
BETWEEN:
SERGEANT GARY LAVOIE
-and-
GREATER SUDBURY POLICE SERVICE
APPELLANT
RESPONDENT
DECISION
Panel: David C. Gavsie, Associate Chair
Zahra Dhanani, Member
Jeffrey King, Member
Hearing Date: August 26, 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:
Sgt. Gary Lavoie, self-represented.
David Migicovsky, Counsel for the Greater Sudbury Police Service.
Introduction
- Sergeant Gary Lavoie (“Sgt. Lavoie” or the “Appellant”), a member of the Greater Sudbury Police Service (the “Service”) was charged with:
a) two counts of Discreditable Conduct and one count of Neglect of Duty in a Notice of Hearing dated May 30, 2011;
b) 29 counts of Discreditable Conduct and three counts of Breach of Confidence in a Notice of Hearing, dated December 23, 2011; and
c) one count of Insubordination in a Notice of
Hearing dated March 14, 2012,
all counts being alleged under the Code of Conduct set out as a Schedule to Ontario Regulation 268/10 enacted under the Police Services Act, R.S.O. 1990, c. P.15, as amended (the “Act”).
Sgt. Lavoie pled not guilty to all charges.
Including appearances, conference calls, motions, orders, evidence and submissions, the hearing before Inspector Dan Markiewich of the Service (the “Hearing Officer”) took approximately 35 days to complete. Fourteen witnesses testified and 139 exhibits were entered.
In his Decision as to findings rendered on July 12, 2013 (the “Findings Decision”), the Hearing Officer found Sgt. Lavoie guilty on all 36 counts as charged.
In his decision on penalty dated November 7, 2013 (the “Penalty Decision”) the Hearing Officer imposed a penalty on Sgt. Lavoie of immediate dismissal from the Service.
By amended Notice of Appeal filed with the Commission on November 26, 2013, Sgt. Lavoie asks that all findings made against him be quashed or be stayed, and that the penalty imposed by the Hearing Officer be revoked, quashed or in the alternative, reduced.
Decision
- For the reasons set out below, the Panel dismisses the appeal against the findings made by the Hearing Officer and the penalty imposed by him.
Background
In his Findings Decision consisting of 111 pages, the Hearing Officer set out the 36 allegations against Sgt. Lavoie. He then reviewed the evidence regarding the charges including that arising from cross-examinations and re-examination. The Hearing Officer then set out testimony of witnesses that did not relate to a specific charge against Sgt. Lavoie. The Hearing Officer continued by assessing the credibility of the witnesses, followed by a discussion about the standard of proof. He completed the Findings Decision by making findings on all 36 charges.
There is little point in the Panel reviewing the evidence in this Decision, in toto. Rather the Panel will consider the issues raised by the Appellant in his Amended Factum, the Appellant’s submissions and the Respondent’s submissions, and then deal with each of those issues.
Issues and Reasons
The Appellant indicates there are 12 issues which lead to his appeal.
The Commission’s standard of review is well settled:
a) for a hearing officer’s finding of fact and imposition of a penalty, the standard is reasonableness: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190; and
b) for a hearing officer’s interpretation of the general law, the standard is correctness: see Law Society of Upper Canada v. Neinstein (2010), 99 O.R. (3rd)
1 (Ont. C.A.).
- The Role of the Commission in appeals to it from decisions from hearing officers has been well stated in Precious and Hamilton Police Service (May 10, 2002, OCCPS) at page 7:
It is a well-established principle that an appellant authority or body like the Commission should only intervene if the Hearing Officer has made a manifest error, ignored conclusions or relevant evidence, misunderstood the evidence or drawn erroneous conclusions from it.
- The role has also been explained in the case of Williams and Ontario Provincial Police (December 4, 1995, OCCPS) at page 11:
Our role or function in such matters is not to second guess the decision of the Adjudicator. In certain limited cases, it would be open for us to reach a different conclusion from the trier of fact. However, that must be based on the strongest
ground. In other words, there can be no other determination than the conclusions of the Adjudicator, as to the credibility of the witnesses, cannot be reasonably accepted.
- The Commission also stated in Precious, supra, at page 8:
Only in exceptional cases where the reasoning itself is evidently wrong, contains error, or cannot reasonably be accepted, will the Commission interfere with the conclusions made by the Hearing Officer on such matters.
- The 12 issues raised by the Appellant are the following:
a) There was private and inappropriate communication between the Prosecution and the Hearing Officer.
b) The Hearing Officer should have recused himself in the beginning;
c) The Hearing Officer was not impartial;
d) The Hearing Officer erred in partially recusing himself of some of the charges;
e) Disclosure was refused or withheld;
f) The rules of evidence were not consistently applied;
g) The Hearing Officer incorrectly applied the rules of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, as amended (the “SPPA”);
h) The Service lacked jurisdiction to serve the
Notices of Hearing for the December 23, 2011 and
March 8 (or 14th as amended), 2012 Notices of
Hearing;
i) Many charges were duplicated;
j) There can be no misconduct for disobeying an officer of equal rank;
k) The Hearing Officer improperly assessed witness credibility; and
l) The penalty was unduly harsh.
(a) Private and Inappropriate Communication Between the Prosecution and the Hearing Officer.
The Appellant’s Position
The Appellant submits that on January 24, 2013, the Hearing Officer admitted he had a conversation with Insp. Todd Zimmerman, a member of the Service. Insp. Zimmerman had been designated as a prosecutor regarding all of the allegations against Sgt. Lavoie (Ex.3).
The Appellant takes the position that this communication is in direct breach of s. 83(12) and (13) of the Act.
The Respondent’s Position
- The Respondent submits that the conversation did not relate to this case, but rather to further Notices of Hearing which are the subject of different allegations of misconduct against Sgt. Lavoie. The Hearing Officer recused himself from hearing the additional charges and a different hearing
officer, Deputy Chief (Ret.) Terrence Kelly, was designated and in fact arraigned Sgt. Lavoie on those additional charges.
- The Respondent argues that the “private communication” pertained to a different proceeding than this case, and further, that the communication to the Hearing Officer was only to inform him that the Chief of the Service had designated a new hearing officer for the additional charges. This was solely an administrative matter.
The Panel’s Analysis
S. 83 (12) of the Act states that a hearing officer “shall not communicate directly or indirectly in relation to the subject matter of the hearing with any person” unless there is notice to the parties and they have an opportunity to participate in the communication. There is an exception in s.83(13) regarding the seeking of legal advice, but that does not apply here.
In the transcript from the hearing on February 4, 2013 commencing at 10:07 a.m., present were Deputy Chief (Ret.) Kelly (who was referred to in the transcript as the “Hearing Officer”), the Hearing Officer (Insp. Markiewich), Sgt. Lavoie, David Migicovsky and one or two members of the PSB. At the bottom of page 2, Insp. Markiewich said the following:
Okay. On the 24th of January ’13 I was informed by Inspector Todd Zimmerman that Exhibits Number 32, Exhibits 90 and 91 of the Notice of Hearing for Sergeant Lavoie in regards to the charges applicable to that exhibit that I was going to recuse myself on today’s date. So in regards to the Notice of Hearing on Exhibit 32 and Exhibit 90
I have now recused myself in regards to just those matters.
- There is no evidence that the Hearing Officer discussed the subject matter of the case before him with one of the prosecutors, namely Insp. Zimmerman. We find no error. This issue has no merit in the view of the Panel.
(b) The Hearing Officer Should Have Recused Himself in the Beginning
The Appellant’s Position
- The Appellant put forward a motion at the hearing on June
5, 2012 to recuse the Hearing Officer “for reasons of
apprehension of bias and institutional factors” (Ex. 14 and
15). The Hearing Officer denied the motion stating that “The allegation of bias in the case before me is based on conjecture and supposition” but, in the Appellant’s submission, the Hearing Officer’s reasons for his decision were also based on conjecture and supposition as the prosecution brought no evidence, and no witnesses were called, to dispute Sgt. Lavoie’s arguments.
The Hearing Officer stated there were inconsistencies between the affidavit of Joe Lavoie and the evidence before him. He also felt there were inconsistencies between that affidavit and Joe Lavoie’s notes. No evidence was presented to dispute Joe Lavoie’s testimony.
The Appellant argues that the Hearing Officer accepted as a fact that Joe Lavoie could not remember speaking to a member of the Service when a general occurrence report was taken. This was put forward by the prosecution and accepted by the Hearing Officer without corroboration.
The Appellant further submits that the Hearing Officer failed to consider his argument that the Hearing Officer’s involvement in an employment-related matter suggested his bias. There was also a failure by the Hearing Officer to take into account that as an Inspector with the Service, he had a hand in drafting all policies including those which Sgt. Lavoie is alleged to have breached.
The Appellant argues that the Hearing Officer oversaw the Unit of the Service of which Sgt. Lavoie was in charge. This leads to a bias conclusion.
The Appellant concludes by stating someone answering directly to the Chief of the Service like the Hearing Officer “might hesitate to entertain any conclusion other than guilty, when clearly the Chief wanted me fired (all Notices of Hearing stated that dismissal was being sought)”.
The Respondent’s Position
The Respondent argues that the existence of or apprehension of bias must be proved by the party claiming it on clear evidence. Suspicion or speculation is not enough. The threshold is high.
In Blowes–Aybar and Toronto Police Service (March 7,
2003, OCCPS), the Commission adopted the following test for a reasonable apprehension of bias:
…the apprehension of bias must be a reasonable one, held by reasonable and right–minded persons, applying themselves to the question and obtaining thereon the required information. That test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.
Would he think that it is more likely than not that [the decision–maker], whether consciously or unconsciously, would not decide fairly”.
The Respondent further states that prior administrative involvement does not establish bias: see Wewaykum Indian Band v. Canada 2003 SCC 45, [2003] 2 S.C.R. 259 (S.C.C.), and R. v. A (J.L.) 2009 ABCA 344.
The Respondent submits that the Appellant’s arguments that the Hearing Officer, as an Inspector, had a hand in preparing policies that the Appellant was accused of breaching, that an interaction by the Hearing Officer with a member of his family over ten years ago, and the Hearing Officer’s involvement with the Appellant as to overtime entitlement, were all matters that had long ago been resolved or were conjecture by the Appellant.
The Respondent argues that the legislative scheme of the Act allows institutional bias where there are overlapping functions: see Brosseau v. Alberta (Securities Commission) 1989 CanLII 121 (SCC), [1989] 1 S.C.R. 301, paragraphs 18-22, and Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch) 2001 SCC 52, paragraph 22.
The Respondent submits that the Appellant has failed to rebut the presumption of impartiality. No evidence was presented that the Hearing Officer showed a leaning or inclination toward one party or the other.
The Panel’s Analysis
- The Panel finds the Appellant’s arguments on this issue are unsubstantiated. His position that the Hearing Officer was somehow involved years ago regarding a matter referred to the Service by his father, Joe Lavoie, and that the Hearing Officer was also involved years ago in an employment
dispute relating to overtime claimed by the Appellant which the Appellant did receive, does not meet the requirement that apprehended or actual bias existed in the hearing.
The Appellant did not establish that the Hearing Officer had a hand in drafting the policies that the Appellant was alleged to have breached. Even if in fact he did, why then would the Hearing Officer be biased against the Appellant in deciding whether or not the Appellant committed misconduct as alleged here? We agree with the Hearing Officer’s finding that the Appellant’s arguments were based on supposition and conjecture and without foundation.
With regard to Appellant’s institutional bias arguments, the Appellant did not establish a direct reporting relationship to the Hearing Officer when he was in the Traffic Unit, nor why his indirect reporting relationship with the Hearing Officer created a bias by the Hearing Officer against him.
Under the Act, the chief of a police service on a chief’s complaint, which is the complaint against Sgt. Lavoie, designates a hearing officer and also designates a prosecutor. Investigations into misconduct were carried out by the Service, and that is also envisaged by the Act. There is an option for a chief of a service to refer an investigation to a different service, but this is not a requirement.
As stated in Brosseau, supra, and in Ocean Port Hotel, supra, courts should defer to legislation which shows what Parliament or a legislature, as the case may be, intended. To show institutional bias, one must establish that a hearing officer or a police service went beyond the statutory duties contained in the Act and/or regulations enacted thereunder. That was not established by the Appellant.
We find no evidence before us that would lead to a conclusion that the Hearing Officer should have recused himself.
(c) The Hearing Officer Was Not Impartial
The Appellant’s Position
The Appellant argues that the Hearing Officer assumed the role of his superior officer while adjudicating, thus creating a bias. When disclosure was released to Sgt. Lavoie, the Prosecution requested Sgt. Lavoie sign a confidentiality undertaking.
Further, the Appellant submits that the Hearing Officer ordered an exclusion of witnesses from the hearing room but allowed Insp. Weber to remain as an advisor to the prosecution. On the other hand, Insp. Zimmerman had been designated as a co-prosecutor and should have been the advisor to the Prosecutor.
The Appellant also submits that his lawyer attended the hearing on July 19, 2012 and had an Association representative with him. The Hearing Officer ordered the Association representative to leave due to an earlier ruling that witnesses were excluded, even though such person had not been summonsed to be a witness.
The Hearing Officer refused to consider Sgt. Lavoie’s medical notes when he sought an adjournment, and instead summonsed his doctor to ask her questions. The Appellant’s claims of privilege as to his medical condition were ignored and then exploited by the Hearing Officer. However the Hearing Officer granted privilege to a conversation between Insp. Weber and the Chief.
The Appellant says that the Hearing Officer denied his request for time to prepare closing arguments, yet the prosecution was granted a 30 day delay automatically “as he had scheduled another matter on dates that were set”.
The Respondent’s Position
The Respondent refutes
the Appellant’s position. The
information disclosed to
Sgt. Lavoie contained personal
information, arrest and
occurrence reports, etc. The
prosecution sought an undertaking from Sgt. Lavoie and an
order from the Hearing Officer that he was not to share information with anyone other than legal counsel. Sgt. Lavoie agreed.
The Hearing Officer permitted both the prosecution and Sgt. Lavoie to have a single advisor present. Sgt. Lavoie had his father, Joe Lavoie, with him. Insp. Weber was the prosecution’s adviser.
Regarding the Association representative being ordered to leave the hearing room, Sgt. Lavoie had previously indicated the representative would be a witness, and an order excluding witnesses had previously been made.
The Respondent submits that Sgt. Lavoie did not claim privilege over his medical information. In any event there is no such privilege in law. As for Insp. Weber claiming privilege, that was in respect of a conversation she was asked about that she had with legal counsel.
The Respondent argues that the Appellant’s position that he was denied an adjournment is unfounded in that he requested and was granted numerous adjournments during the hearing.
The Respondent asserts that there is no basis for the Appellant’s argument that he was denied time to prepare closing arguments. He had more than ample time to prepare his case.
The Panel’s Analysis
- We find that the Appellant has not proven that the Hearing
Officer was anything but impartial.
On the issue of Sgt. Lavoie having to agree to and sign a confidential undertaking, he acknowledged and agreed to the conditions under which he was being given disclosure due to the confidential information in the material. Sgt. Lavoie requested that his wife be exempted from the undertaking but was refused because she was assisting him.
Regarding
the issue of the Hearing
Officer’s order of
exclusion
of witnesses, individuals
who were either
suggested or actual witnesses to be called, were excluded
from the hearing room until called. The exceptions were Joe Lavoie who was assisting Sgt. Lavoie and Insp. Weber who was assisting counsel for the Service, Mr. Migicovsky. This is common in legal proceedings as not to taint any of the testimony of witnesses. We can find no error with this practice.
Sgt. Lavoie’s medical information was not privileged. It was the subject of an adjournment request by Sgt. Lavoie. Some information was initially sent only to the Hearing Officer by Sgt. Lavoie and when Mr. Migicovsky was asked if he consented to the adjournment, he requested to see the information given to the Hearing Officer. This was fair that the opposing party have access to this information. Again we find no error here.
Sgt. Lavoie raised as a prejudice against him that a claim of privilege was upheld by the Hearing Officer with regard to a conversation that Insp. Weber had with others including legal counsel. Solicitor-client privilege is a well established legal principle and the fact that it was invoked and upheld cannot be the basis for a successful claim by Sgt. Lavoie that this was discriminatory towards him.
Regarding the additional time requested to prepare closing arguments, there were scheduled dates for the hearing to continue on March 19, 20 and 21, 2013. The evidence was complete on March 18, 2013 so that normally, submissions would be heard commencing on March 19. Sgt. Lavoie requested and was granted an adjournment of the March dates. The Hearing Officer then confirmed that the hearing would proceed on previously scheduled dates of April 15 and 16, and May 1 and 2, 2013.
After Sgt. Lavoie finished his oral submissions on April 16,
2013, the Respondent’s counsel indicated he wished to reply on May 1 or 2, 2013. However the Hearing Officer said he was unavailable on either of those days.
- Sgt. Lavoie had complete patience from the Hearing Officer.
We find no evidence that the Hearing Officer was partial to the prosecution.
(d) The Hearing Officer Erred in Partially Recusing
Himself of Some of the Charges
The Appellant’s Position
- The Appellant submits that the Hearing Officer was seized when he accepted his designation on the matters in the Notice of Hearing dated May 30, 2011, December 23,
2011, March 15, 2012 and September 27, 2012 and asked the Appellant how he pleaded on the charges.
- A new hearing officer is hearing some of the charges. The Hearing Officer’s recusal represents an error in law and a denial of natural justice.
The Respondent’s Position
The Respondent submits that Sgt. Lavoie was served with a Notice of Hearing on June 25, 2012 alleging two counts of Insubordination. The hearing of earlier Notices of Hearing was underway. On September 27, 2012, Sgt. Lavoie was served with another Notice of Hearing alleging he had committed three additional acts of Misconduct.
The parties argued that the charges in the Notice of Hearing served on June 25, 2012 would be adjourned to be heard at a hearing after the first set of charges in the earlier Notices of Hearing were concluded. The Respondent said that the Appellant did not object.
The Respondent submits that Sgt. Lavoie had also been charged criminally in relation to the matters contained in the Notice of Hearing served on him on September 27,
The Crown Prosecutor requested these alleged charges be stayed. Sgt. Lavoie did not object to the adjournment.
The Respondent argued that at the outset of the hearing on February 4, 2013, the Hearing Officer said he would be recusing himself on both of the aforementioned additional
Notices of Hearing. The Respondent said Sgt. Lavoie specifically confirmed he was satisfied.
The Respondent submits that while the Hearing Officer explained he had been told to recuse himself, it is the Chief of Police who can rescind a designation of a hearing officer and who can appoint a new hearing officer.
The Respondent argues that under s. 9(1)(a) and (b) SPPA different proceedings can only be combined or heard together if the parties consent. The Respondent did not consent.
The Panel’s Analysis
The Appellant did not provide any evidence to substantiate this argument, nor did he provide any legal argument to support his position. For those reasons alone, we find there is no merit to this ground of appeal.
The Panel has reviewed the transcript of February 4, 2013 commencing at 10:07 before hearing officer Deputy Chief Terence Kelly (Ret). Mr. Kelly asked Sgt. Lavoie if he was satisfied with his authorization from the Chief of the Service to act, to which Sgt. Lavoie said he was.
Mr. Kelly made it quite clear that he would be the hearing officer for the allegations contained in the Notice of Hearing served on Sgt. Lavoie on June 25, 2012 and September 27,
We agree with the Respondent that the Chief of the Service may delegate his or her ability to conduct a discipline hearing under s. 94(1) of the Act. We also agree with the Respondent that the Chief may revoke a designation which
is a sub-delegated authority – see Brown and Evans, Judicial Review of Administrative Action in Canada.
- By the dates on which the two additional Notices of Hearing were served, the hearing which had stated on June 13,
2011, was well underway. In fact by June 25, 2012, ten hearing days had been held, and by September 27, 2012, eight more hearing days had been held.
Augmenting the first hearing with the additional charges would have entailed further delay which would not have been in the public interest nor would it have served any just cause at that stage.
In addition, we find that the recusal of the Hearing Officer on the additional charges served on June 25, 2012 and September 27, 2012 was not an error in law, nor was it a denial of natural justice to Sgt. Lavoie.
(e) Disclosure was Refused or Withheld
The Appellant’s Position
- The Appellant submits that the Hearing Officer erred by hastily dismissing his arguments for disclosure and in accepting the Respondent’s statements that they had disclosed everything or that documents sought were irrelevant. No specific examples are provided by the Appellant.
The Respondent’s Position
- The Respondent submits that the standard of disclosure for discipline matters is found in s. 83(5) of the Act.
83 (5) Before the hearing, the police officer shall be given an opportunity to examine any physical or documentary evidence that will be produced or any report whose contents will be given in evidence.
- The Respondent relies on the decision in Cardi and Peel Regional Police (September 12, 2013, OCPC) in which the Commission held that the Stinchcombe principles of disclosure in criminal cases do not apply to administrative hearings before it, such as this one.
The Panel’s Analysis
- Given he failed to identify any documents improperly withheld, the Panel finds there is no merit in this issue raised by the Appellant.
(f) The Rules of Evidence Were Not Consistently Applied
The Appellant’s Position
- The Appellant submits there are nine examples of the Hearing Officer failing to apply the rules of evidence, as follows:
i. regarding MT, a witness, the Appellant was given no will-say statement and no disclosure;
ii. the Hearing Officer allowed documents to be introduced through Sgt. Dicaire that she had neither authored nor investigated;
iii. the Hearing Officer said that evidence could only be entered through witnesses, but allowed the Respondent to enter transcripts for LMT without calling that person as a witness;
iv. Sgt. Lavoie was not permitted to enter any statements that were part of disclosure unless he called the person interviewed as his witness. He called CW but was not permitted to enter what he had received in disclosure;
v. Sgt. Lavoie was not permitted to enter statements of persons he is charged with querying on the Service’s information system improperly. Only documentary evidence was entered as evidence.
vi. the Hearing Officer erred in not signing summonses to witnesses for Sgt. Lavoie. The order by the Hearing Officer to Sgt. Lavoie to disclose his entire defence, failing which he would not be able to call any witnesses, constitutes an abuse of authority and breach of procedural fairness;
vii. the Hearing Officer did not personally assess the relevance of documents requested to be disclosed before ruling on their relevance or admissibility, choosing instead to defer the decision to the Prosecution;
viii. The Hearing Officer erred by unnecessarily delaying signing Sgt. Lavoie’s summonses to witnesses until the Prosecution finished with its witnesses; and
ix. Sgt. Lavoie’s objections to the Hearing Officer’s decisions or orders were “shut down”. Objections by the Prosecution were usually granted.
The Respondent’s Position
- The Respondent answered the Appellant’s nine alleged examples as follows:
i. MT had not provided the Respondent with a statement. The Respondent provided the Appellant with notes of efforts to obtain information from MT;
ii.
Respondent submits
Sgt. Dicaire gave
uncontradicted evidence
about NICHE and CPIC
queries conducted by Sgt. Lavoie. Sgt. Dicaire had
prepared these documents;
iii. the Appellant opened the door in his cross- examination questions by asking about the interview of LMT. The interview transcripts were then marked as an exhibit;
iv. Sgt. Lavoie was not prohibited from putting forward any relevant documents as exhibits;
v. Sgt. Lavoie was found guilty of conducting unauthorized CPIC and NICHE searches. The evidence was documentary. In many cases in his compelled interview, Sgt. Lavoie confirmed the searches were conducted not for authorized police purposes but rather for his own. The Appellant’s allegations that the rules of evidence were not consistently applied are unsupported by any references to the Record;
vi. to viii. a tribunal under the SPPA retains the power and discretion to determine whether or not the issuance of a summons to a witness is for the
purpose of obtaining relevant evidence. The Tribunal may therefore ask the party requesting the summons to articulate the basis for calling the witness – see Re Khan 2013 CarswellOnt 14920 (Ontario Securities Commission). It is clear that the authority of a hearing officer to issue a summons is discretionary – s. 12 SPPA. Sgt. Lavoie intended to issue summons to 32 individuals most of whom had no relevant evidence to provide;
ix. The Respondent refers to the Hearing Officer directing Sgt. Lavoie not to tape the proceeding as he could possibly pick up private conversations of the Prosecutor, but the whole proceeding was recorded by a court reporter. Another example was when Sgt. Lavoie provided medical evidence to the Hearing Officer, but not the Prosecutor, in support of an adjournment request. When it was made clear that Sgt. Lavoie had not provided this information to the Prosecution, the Hearing Officer directed the adjournment request be supported by evidence. After hearing the evidence, the Hearing Officer granted the adjournment.
The Panel’s Analysis
- The examples identified by the Appellant have all been appropriately answered by Respondent. The Panel finds, based on the evidence and rulings of the Hearing Officer, that the rules of evidence were not inconsistently applied to the detriment of the Appellant as he alleges.
(g) The Hearing Officer Incorrectly Applied the Rules of the SPPA
The Appellant’s Position
The Appellant submits that the Hearing Officer permitted the Prosecutor to deliver his rebuttal submissions on a Saturday in a room at Sudbury City Hall, a building which is closed on Saturdays. This did not comply with s. 9(1) of the SPPA which calls for hearings to be open to the public.
The Appellant argues that the Hearing Officer permitted a change to a Notice of Hearing citing that s. 25.0.1 of the SPPA permitted him to do so. Only s. 21(1) of the SPPA allows correction of clerical errors, but not to court documents previously tendered in evidence.
The Appellant submits that on June 28, 2012 he requested that the charges set out in the Notice of Hearing served on him on June 25, 2012 be heard along with the previous charges set out in previous Notices of Hearing. The Hearing Officer refused that request quoting s. 9.1 (1) of the SPPA. Yet the Hearing Officer let the charges in the three previous Notices of Hearing be heard together.
The Respondent’s Position
The Respondent submits that the SPPA does not set a prohibition against having a hearing on a Saturday. The entire hearing was open to the public. No evidence was presented that the building was normally closed.
The correction permitted by the Hearing Officer to change the name of the search stated to be the subject of the allegation, was requested and made after the first witness for the Prosecution gave evidence in chief.
Sgt. Lavoie did not consent to having the charges in the first three Notices of Hearing heard together. He was served with two additional Notices of Hearing. It was made clear to him the new charges would not be combined with the existing charges, as the hearing for the latter was well underway.
The Panel’s Analysis
- We find that the Hearing Officer did not misapply the rules of the SPPA. There was no evidence that the hearing on Saturday was closed to the public. The correction to the Notice of Hearing permitted by the Hearing Officer was minor, made early in the proceeding and did not cause any prejudice to Sgt. Lavoie. Finally, the Hearing Officer made the correct decision in not permitting the charges set out in the two additional Notices of Hearing to be added to the charges set out in the first three.
(h) The Service Lacked Jurisdiction to Serve the December 23, 2011 and March 8, 2012 (as amended on March 14, 2012) Notices of Hearing
The Appellant’s Position
- The Appellant submits that his argument that the charges were laid beyond the six months prescribed in the Act was not addressed by the Hearing Officer. In his closing argument, Sgt. Lavoie argues that he drew attention to many exhibits and witness statements to support his position that the six month time period started sometime between January 2011 and March 28, 2011. In his factum, Sgt. Lavoie lists numerous examples over 10 pages.
The Respondent’s Position
- The Respondent submits that the Appellant wants the Commission to reweigh the evidence and draw inferences different than the Hearing Officer. The Appellant’s argument is based on an inaccurate recitation of the facts and misstatements as to what is contained in the transcripts. In addition, the Respondent refutes the Appellant’s arguments basically one by one over four pages in its factum.
The Panel’s Analysis
This Panel may not reweigh the evidence to come to a decision different from the Hearing Officer. The Panel should only intervene if the Hearing Officer’s decision is unreasonable in that there has been an error in principle or relevant factors have been ignored (emphasis added) – see Dunsmuir, supra, Wilson and Ontario Provincial Police (November 20, 2006, OCCPS), Favretto and Ontario Provincial Police (February 13, 2002, OCCPS), and Karklins and Toronto Police Service (September 25, 2007, OCCPS).
An appeal to the Commission is an appeal on the record.
We do not hear the witnesses and the giving of their evidence. Deference is given to the Hearing Officer’s factual findings, especially in a hearing of this length and time frame. Does an examination of the Record show that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence? That is the question we have to ask – see Blowes – Aybar and Toronto (City) Police Service, 2004 CarswellOnt. 1583 (Div. Ct.).
- Further, the Panel is not to second guess a hearing officer.
Rather our role is 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 logically – see Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div. Ct.).
- More will be said later in this decision in reviewing the decisions of the Hearing Officer in this case. However, at this point, the Panel notes that the Respondent refutes the examples on this issue raised by the Appellant and also his arguments. These matters were determined by the Hearing Officer and the Panel sees no error to an extent that would permit it to intervene in the Findings and Decision of the Hearing Officer.
(i) Many Charges were Duplicated
The Appellant’s Position
- The Appellant submits that one should not be convicted twice based on the same delict – see Dempsey and Waterloo Regional Police (July 19, 1991, OCCPS). The Appellant argues that the Hearing Officer erred in not quashing the duplicate charges. He states that some charges are duplicates as they are based on the same facts. He argues that 12 sets of charges are duplicates.
The Respondent’s Position
The Respondent submits that NICHE and CPIC are entirely different record keeping systems. CPIC is managed and monitored by the RCMP. NICHE contains records of other police services and the OPP. Each record keeping system provides different information.
The Respondent argues that Sgt. Lavoie was charged with discreditable conduct for each one of the CPIC and NICHE searches he conducted on 18 people. Sometimes Sgt. Lavoie conducted a search on CPIC, sometimes just on NICHE, sometimes on both albeit at different times on the same day.
In Dempsey and Waterloo Region Police Service, supra, dulpicate charges were held to exist where the offences occurred at the same time, related to the same acts and were not separated by location or another distinction.
The Panel’s Analysis
- We find that the charges against him are not duplicates.
Rather he was charged, in some cases, for conducting a CPIC search and a NICHE search on the same person, but at different times on the same day. The two search platforms are different and contain different information from different sources. Sgt. Lavoie carried out CPIC and NICHE searches separately on 18 individuals.
(j) There Can Be No Misconduct for Disobeying an Officer of Equal Rank
The Appellant’s Position
- Sgt. Lavoie submits that he was charged with disobeying or disregarding an order from Sgt. Dicaire to place his notebooks into storage. Sgt. Dicaire is of similar rank as Sgt. Lavoie. On the same day he was charged, Sgt. Lavoie was given an order by Insp. Weber to place his notebooks into storage. This order subsequently became the basis of a charge against him.
The Respondent’s Position
The Respondent argues that the two charges referred to here by the Appellant are entirely different charges based on entirely different misconduct. The first charge is not for disobeying an officer of equal rank. It is for not complying with Service procedure and memoranda from the Chief and Deputy Chief directing officers to place their old notebooks in Central Records.
The Respondent submits that the second charge referred to here by the Appellant pertained to a failure by him to comply with policies of the Service which contained requirements for note taking by officers. Sgt. Lavoie’s notebooks during the period 2008-2011 do not comply with the policies.
The Panel’s Analysis
- The Panel finds there is no merit in the Appellant’s position
on this issue.
(k) The Hearing Officer Improperly Assessed Witness
Credibility
The Appellant’s Position
The Appellant argues that the Hearing Officer’s decision on what basis he found witnesses credible or reliable is too vague, when weighed against the inconsistencies in their evidence which were highlighted during closing arguments.
In the case of one witness, C.W., the Appellant states that the Hearing Officer failed to address her motive, that being
to gain some form of retribution or cause problems for Sgt. Lavoie.
- The Appellant submits that the Hearing Officer further erred in relying on his compelled statement as the basis for determining that the Appellant was unreliable or deceitful, despite the fact the statement was recorded under threat of charge, when the Appellant was under duress, and against medical advice.
The Respondent’s Position
The Respondent submits that the Hearing Officer dealt with the credibility of all witnesses who testified. In doing so, he considered the motives, their relationships, and inconsistencies and contradictions in their evidence in relation to evidence from other witnesses.
The Respondent argues that in 31 of the 36 counts of misconduct and findings against him, unauthorized CPIC or NICHE searches were the subject. Documentary evidence largely substantiated these charges. In many cases, Sgt. Lavoie admitted the searches were unauthorized or conducted not for work related purposes. He gave explanations in his compelled interview which the Hearing Officer found were not credible.
The Respondent argues that with regard to the evidence of C.W., she was called as a witness by Sgt. Lavoie. Her testimony in all material aspects was corroborated by other witnesses. Inspector Weber testified that there was independent evidence to support the fact that Sgt. Lavoie had searched the names of the 18 individuals including those given to the Service by C.W.
Further, the Respondent submits that there was no evidence to indicate Sgt. Lavoie’s compelled statement was given under duress and against medical advice.
The Panel’s Analysis
The Hearing Officer heard viva voce evidence and was in a position to evaluate the testimony of the witnesses.
An appeal to the Commission is an appeal on the record.
Unlike a hearing officer, the Commission does not have the advantage of hearing and observing the witnesses. Deference must be accorded to the findings of credibility of a hearing officer unless an examination of the record shows that a hearing officer’s conclusions cannot reasonably be supported by the evidence – see Blowes- Aybar and Toronto (City) Police (March, 7, 2003, OCCPS).
The Hearing Officer begins his analysis of the facts and issues by dealing with the credibility of the witnesses stating that “an important element in this case is credibility.” He cites Faryna v. Chorny (1952) 2 D.L.R. (B.C.C.A.) and refers to other factors to take into account when assuming credibility of witnesses – motive, relationship with the parties, inconsistencies and contradiction in relation to other evidence, and the observation of the manner in which witnesses gave their evidence.
The Hearing Officer then referred to the witnesses who appeared before him, concluding whether each witness was credible or not and giving reasons for his findings.
We disagree with the Appellant that the Hearing Officer’s reasons for his findings of credibility were too vague. We find that the Hearing Officer’s conclusions are well
reasoned and substantiated. His conclusions in this regard can be reasonably accepted.
(l) The Penalty was Unduly Harsh
The Appellant’s Position
The Appellant submits that the Hearing Officer in his penalty decision did not indicate that he considered factors such as the nature and seriousness of the misconduct and the officer’s recognition thereof, the ability to reform or rehabilitate the officer, the damage to the Service, the need for deterrence, the officer’s employment history and experience, handicap or other relevant personal considerations about the officer. Further, the Appellant argues that it is important for the Hearing Officer to consider prior cases dealing with similar types of misconduct to ensure consistency.
The Appellant argues that of the sentencing factors listed by the Hearing Officer, many were based on his own opinion and not supported by the evidence.
The Appellant asserts that the Hearing Officer relied on media articles and comments by readers to support his conclusion that damage to the Service is extreme.
The Appellant submits that the cases relied on by the Hearing Officer were not similar to this case. The Appellant then referred to several cases pointing out why in his view they can be distinguished. He concludes by submitting that the Hearing Officer’s penalty decision was founded on personal unproven theories, unrelated cases and lack of peer support for Sgt. Lavoie throughout the hearing.
The Respondent’s Position
- Respondent submits that the standard of review of a penalty decision is one of reasonableness. Only if the penalty is unreasonable, or amounts to an injustice or unfairness, or if all factors have not been properly and impartially considered, having due regard to the expertise of the Hearing Officer, should the Commission interfere with the Hearing Officer’s decision on penalty – see Ontario Provincial Police v. Favretto, 2004 CarswellOnt 4221 (C.A.), Karklins v. Toronto Police Service, 2010 CarswellOnt 567 (Div. Ct.), and Mamak and Ottawa Police Service (April 13,
2011, OCPC).
The Respondent cites Williams and Ontario Provincial Police, supra, and Ceyssens, Legal Aspects of Policing, setting out the factors which should be taken into account in arriving at an appropriate penalty within the range of acceptable outcomes.
The Respondent argues that a hearing officer weighs the evidence and then decides the degree to which a relevant factor ought to have a mitigating, neutral or aggravating impact on the penalty.
The Respondent submits that the Hearing Officer considered a large number of factors, including consistency of penalty, and found that dismissal was within the range of appropriate penalties. He also determined that in light of the factors he considered, Sgt. Lavoie was no longer of use or value to the Service and the community it serves.
The Respondent cites a number of cases where CPIC and/or other information systems were abused by officers, and the penalties in such cases included dismissal.
The Panel’s Analysis
- The Hearing Officer referred to the public interest, stating the public has the right to protection of their confidential information that officers have access to. When a police officer ignores this, it must be corrected. The Panel fully endorses this finding. The Appellant disregarded this basic right. The Hearing Officer referred to the following quote in Grbich and Aylmer Police Service (August 9, 2002, OCCPS):
A police officer is a professional who is looked upon by the public as a person they can rely upon and trust. When a police officer breaks the rules and violates the public trust, they must be held accountable.
This is fundamental in our view.
The Hearing Officer then discussed the following factors: seriousness of the misconduct, recognition of the seriousness, handicap and other relevant personal considerations of Sgt. Lavoie, Sgt. Lavoie’s employment history, potential to reform or rehabilitate, effect on Sgt. Lavoie and his family, specific and general deterrence, damage to the reputation of the Service, credibility, and consistency of penalty.
The Panel finds that the Hearing Officer properly and impartially considered these factors in arriving at the penalty of dismissal. We find no error.
As for consistency of penalty, the Hearing Officer reviewed cases where an officer made improper database searches, either for personal reasons or disclosed information to others – see Coon and Toronto Police Service (April 10,
2003, OCCPS), Mamak and Ottawa Police Service, supra,
and Bovell and Toronto Police Service (April 15, 2012, OCPC).
In addition, the Panel takes judicial notice of McPhee and Brantford Police Service (August 3, 2012, OCPC) in which there was repeated misuse of CPIC. In that case, the Commission upheld the hearing officer’s penalty of dismissal, stating that “only a substantial meaningful penalty will prevent or reduce the damage to the reputation of the Service.”
We find that the Hearing Officer examined the facts and adequately addressed the mitigating and aggravating factors.
We also find that the Hearing Officer examined the appropriate aspects of the test set out in Williams, supra, and carefully weighed the evidence. He properly analyzed the evidence and applied the relevant sentencing factors. We can find no manifest error: see Trotter v. College of Nurses (Ontario) [1991] 44 O.A.C. 302 (Div. Ct.), and Woolaston v. Canada (Minister of Manpower & Immigration) 1972 CanLII 3 (SCC), [1973] S.C.R. 102.
We are satisfied that the Hearing Officer’s decisions are reasonable, take into account the relevant facts and principles, and the Penalty Decision imposes a sanction consistent with similar misconduct.
The Panel has considered the issues raised by the Appellant and the responses to those issues by the Respondent. For the reasons expressed above under each of the issues, the Panel dismisses this appeal.
DATED AT TORONTO, THIS 20TH DAY OF NOVEMBER, 2014
David Gavsie
Zahra Dhanani
Jeffrey King
Associate Chair,
Member, OCPC
Member, OCPC
OCPC