Jacobs v. Ottawa Police Service and Krupa, 2014 CanLII 100640

minicounsel

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

Citation: Jacobs v. Ottawa Police Service and Krupa, 2014 ONCPC 2

-and-

DECISION

Panel: Jacqueline Castel, Member

Hearing Date: February 21, 2014

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, Ontario M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Appearances

Mark Wallace, Counsel for the Appellant

Eric Granger, Counsel for the Public Complainant Respondent

Mark Krupa

Christiane Huneault, Counsel for the Respondent Ottawa Police

Service

Introduction

1Constable Kevin Jacobs (“Const. Jacobs”) was charged with one count of Unnecessary Exercise of Authority 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” or the “PSA”).

2The details of the charge were set out in the Notice of Hearing as follows:

“… on or about May 10, 2009 [Const. Jacobs] did use unnecessary force against Mr. Mark Krupa, while effecting an arrest, thereby constituting an offence against discipline as prescribed in section 2(1)(g)(ii) of the prescribed Code of Conduct, Ontario Regulation 268/10 as amended, and therefore contrary to section 80(1) of the Police Services Act.”

3A hearing was held before Superintendent Jill Skinner (“Superintendent Skinner” or the “Hearing Officer”), at which Const. Jacobs pled not guilty to the charge.

4On November 16, 2012, Superintendent Skinner found Const. Jacobs guilty of one count of Unnecessary Exercise of Authority.

5On January 7, 2013, Superintendent Skinner imposed a penalty of forfeiture of 12 days’ time.

6Const. Jacobs is appealing both the decisions on conviction and penalty.

Decision

7The appeal is dismissed for the reasons which follow.

Background

8On May 10, 2009, Mark Krupa (“Mark”) was driving a 2005 Subaru Impreza, headed towards his residence via Regional Road 174. At the time, Mark was 22 years of age, 5’11” and weighed 150 lbs. Mark’s 15 year old brother, Zenon Krupa (“Zenon”), was a passenger in the vehicle.

9Constables Jacobs (driver) and Carlos Zapata (passenger) were in plain clothes driving an unmarked police vehicle (black Pontiac) when they observed Mark driving at a high rate of speed. Mark testified that he was driving at 120-130 km/hr, but pled guilty to driving at 147 km/hr in a 100 km/hr zone. The latter speed was determined to be his average speed on the highway.

10At the intersection of Woodroffe Avenue and Baseline Road, the two vehicles were side by side. Const. Jacobs told Mark he was driving over the speed limit and asked him to pull over. Mark testified that he refused to stop because he was unsure he was dealing with police officers. Const. Jacobs called Mark a “15 year old punk driving daddy’s car” and Mark referred to Const. Jacobs’ vehicle as a “piece of shit car”. Mark then drove away, but no longer above the speed limit.

11Subsequently, Const. Zapata contacted the Ottawa Police Service Communications Centre and requested uniformed assistance. Constable Steve McLaughlin (“Const. McLaughlin”), who was in uniform and driving a marked police vehicle, pre-empted the call and headed in the direction of Mark’s vehicle.

12Const. McLaughlin asked Mark to pull over twice before Mark complied. Once the vehicle stopped, Const. McLaughlin went over to the driver’s side of the vehicle and told Mark to exit the vehicle and that he was under arrest. Mark complied and asked what he was under arrest for.

13Next Mark was grounded and handcuffed. There was conflicting evidence on whether Mark resisted being handcuffed and on the actions of Const. Jacobs. Below is a summary of the evidence of Mark, Zenon, Const. McLaughlin and Const. Zapata. There was also evidence from civilian witnesses, but the Hearing Officer did not rely on their evidence in making her decision, and the Appellant took the position that their evidence does not form part of the appeal.

Mark’s Evidence

14Mark testified that when he exited the car, he was standing with his palms facing upward and asked what he was being arrested for. Const. McLaughlin turned him around so he was facing his own vehicle (toward rear left/driver’s side) and began to place handcuffs on Mark’s right hand. According to Mark, Const. McLaughlin told him to stop resisting, although Mark felt that he was not resisting.

15Mark testified that Const. McLaughlin had placed one handcuff on him when Const. Jacobs approached and struck him on the head and chest. Initially, he thought Const. Jacobs had punched him, but at the hearing he testified that he believed it was Const. Jacobs’ knee which had struck his head. This forced him to the ground.

16Once Mark was on the ground, Const. Jacobs “dropped the entire weight of his knee on [his] head” and then administered two knee strikes.

Const. McLaughlin’s Evidence

17Const. McLaughlin testified that he instructed Mark to turn around, after he exited his vehicle, as he was being arrested for dangerous driving. According to Const. McLaughlin, Mark did not comply. Instead, Mark leaned back, using his free hand to push off the vehicle and turn towards Const. McLaughlin.

18Const. McLaughlin testified that he tried to handcuff Mark. However, Mark resisted by moving his hands and did not allow Const. McLaughlin to bring both hands together. Const. McLaughlin characterized Mark as being “actively resistant”. As a result, Const. McLaughlin decided he would disengage from holding Mark’s right hand and ground him.

19Const. McLaughlin testified that he was focusing on taking Mark to the ground by pushing his left shoulder and pulling on his left hand to get him off balance. At the same time as he was grounding Mark, Const. Jacobs came in to assist “like a bull”. Const. McLaughlin testified that he described Const. Jacobs in this way because of his size; Const. Jacobs is bigger than Const. McLaughlin. Const. McLaughlin testified that he is 6”2 and weighs 240 pounds.

20According to Const. McLaughlin, Const. Jacobs pulled Mark to the ground by grabbing his collar or shoulder. Mark stumbled and fell to the ground on his stomach. Const. McLaughlin said he did not witness any blows, kicks or knee strikes during the grounding.

21Const. McLaughlin was able to handcuff his right hand, but Mark’s left arm was under his body.

22Const. McLaughlin acknowledged that when Mark was on the ground, it may have been Const. Jacobs’ weight on top of Mark which prevented Mark from getting his left arm out from under his body. Const. Jacobs was located towards Mark’s head and shoulders and was either kneeling or squatting.

23Const. McLaughlin testified that Const. Jacobs administered two knee strikes across Mark’s shoulder blades. After the knee strikes were delivered, they were able to get Mark’s left arm behind his back and complete the handcuffing process.

Zenon’s Evidence

24Zenon testified that initially he did not hear any verbal exchange between Const. McLaughlin and Mark, with the exception of when Const. McLaughlin told Mark to get out of the vehicle and that he was under arrest.

25According to Zenon, Const. McLaughlin put one handcuff on Mark before the grounding.

26Zenon testified that when he observed Const. Jacobs exit his vehicle and approach Const. McLaughlin and Mark, he moved to the driver’s seat of the Subaru so he could see what was happening. Zenon said he saw Const. Jacobs knee Mark in the head which caused Mark to drop to the ground. According to Zenon, Const. Jacobs was rubbing or grinding Mark’s head into the ground with his knee. Zenon heard Const. Jacobs tell Mark to stop resisting, and he heard Mark say that he was not resisting.

27Zenon was not sure when they cuffed Mark’s left hand. Zenon got out of the car to try and help his brother but Const. Zapata grabbed him and told him he could not do that or he would be arrested too.

Const. Zapata’s Evidence

28Const. Zapata testified that he was holding Mark’s right hand to assist Const. McLaughlin when he observed Zenon get out of the passenger side of the Subaru and heard him say something like “he kneed him in the head, he hit, he hit my brother”. According to Const. Zapata, Zenon was close to tears when he made this statement. At this point, Const. Zapata let go of Mark’s hand and approached Zenon. He moved him away from the vehicle to the side of the roadway.

29Const. Zapata said that he was not in a position to witness any knee strikes by Const. Jacobs before the grounding.

30After moving Zenon away from the vehicle, Const. Zapata said he did not notice any further activity until Mark was stood up in handcuffs.

31After the grounding and handcuffing of Mark, Constables McLaughlin and Jacobs stood Mark up and placed him in the back seat of the police cruiser. An ambulance was called and Mark was brought in the cruiser to the Merivale Mall parking lot where he was assessed by the paramedics. He was taken to the hospital where x-rays showed there were no broken bones. He sustained bruises to his facial area.

Appellant’s Submissions

32Mr. Wallace indicated at the outset of his oral submissions that his position on the standard of proof has changed since he filed his factum, in light of the Supreme Court of Canada’s decision in Penner v. Niagara (Regional Police Services Board) 2013 SCC 19.

33He explained that at the hearing, both the prosecution and defense took the position that the appropriate standard of proof was the balance of probabilities, and the Hearing Officer applied this standard. See: F.H. v. MacDougall, 2008 SCC 53, [2008] 3 S.C.R. 41

34However, Mr. Wallace submitted that as a result of the majority decision in Penner, supra, the correct standard is the standard of “clear and convincing evidence” which is a higher standard than the balance of probabilities.

35Consequently, Mr. Wallace stated that the Appellant’s main ground of appeal is that the Hearing Officer applied the wrong standard of proof and thereby committed an error in law.

36Mr. Wallace reviewed the Penner decision, which deals with the question of issue estoppel in the police discipline context, and highlighted the following passage on the standard of proof, in paragraph 60 of the majority decision:

“…. As the Court of Appeal recognized, because the PSA requires that misconduct by a police officer be “proved on clear and convincing evidence” (s. 64(10)), it follows that such a conclusion might, depending upon the nature of the factual findings, properly preclude relitigation of the issue of liability in a civil action where the balance of probabilities – a lower standard of proof – would apply. However, this cannot be said in the case of an acquittal. The prosecutor’s failure to prove the charges by “clear and convincing evidence” does not necessarily mean that those same allegations could not be established on a balance of probabilities. Given the different standards of proof, there would have been no reason for a complainant to expect that issue estoppel would apply if the officers were acquitted. Indeed, in Porter, at para. 11, the court refused to apply issue estoppel following an acquittal in a police disciplinary hearing because the hearing officer’s decision “was determined by a higher standard of proof and might have been different if it had been decided based on the lower civil standard….”

37Mr. Wallace stated that if the Panel accepts his argument that the Hearing Officer applied the wrong standard of proof, the Panel has two options: (1) to acquit Const. Jacobs; or (2) to send the matter back for another hearing.

38He argued that the Panel should adopt the first option, if it agreed with him that the Hearing Officer’s decision was unreasonable and not supported by the evidence. If the Panel does not deem the Hearing Officer’s findings to be unreasonable on the balance of probabilities standard, which she applied, then the Panel should send the matter back for re-hearing.

39Mr. Wallace submitted that the decision was unreasonable even applying the balance of probabilities standard of proof.

40He pointed out that the Hearing Officer failed to address in her reasons the physical improbability of Const. Jacob, who was bigger than Const. McLaughlin (6’2”), delivering a knee strike to Mark (5’11”) while standing.

41Mr. Wallace stated that the Hearing Officer relied primarily on Zenon’s and Const. Zapata’s evidence to make a finding with respect to the first knee strike. He argued that Zenon’s evidence was neither cogent nor reliable, as Zenon’s evidence about Mark’s arrest was inconsistent with the evidence of Mark, Const. Zapata and Const. McLaughlin.

42Mr. Wallace argued that this was an emotionally charged situation for Zenon, and Const. Zapata described him as upset and crying when he moved him away from the vehicle. His emotional state would have influenced his ability to observe and judge what was occurring, as well as his ability to recollect.

43Mr. Wallace also argued that Zenon was an “interested witness” since he was Mark’s brother. He admitted to not telling Const. Zapata the truth about the speed at which Mark was driving. He also admitted to not being exact when he told Const. Zapata about whether he had told Mark to stop.

44Mr. Wallace argued that the Hearing Officer’s finding, that Zenon’s statement, as repeated by Const. Zapata (“he [Const. Jacobs] kneed him in the head, he hit, he hit my brother”), was contemporaneous to a knee strike to the head, was not established by the evidence. Given how quickly the event occurred, there was nothing in the evidence to suggest that Zenon’s statement was in reference to the time frame when Mark was still upright.

45Mr. Wallace also argued that Const. Zapata’s evidence about assisting Const. McLaughlin and then dropping Mark’s arm to escort Zenon across the street was not reliable, clear or cogent.

46Mr. Wallace further submitted that the Hearing Officer misapprehended Const. McLaughlin’s evidence on the grounding, in using it to support her finding that the first knee strike occurred. Const. McLaughlin testified he did not observe any kicks, punches, knee strikes or blows before Mark went to the ground, and that he did not deliver any strikes himself before the grounding. In cross-examination, Const. McLaughlin accepted there may have been a blow or other use of force which he did not observe and that he could not say such acts did not happen.

47Mr. Wallace argued that the Hearing Officer took the answers to these questions on cross-examination to support her finding that the knee strike occurred. Mr. Wallace submitted that the fact that Const. McLaughlin agreed on cross-examination that the knee strike was possible does not detract from the rest of his evidence. The admission, as to the possibility of an event occurring, does not amount to clear and convincing evidence.

48Mr. Wallace submitted that there is no expectation that an officer will measure carefully the exact amount of force that the situation requires. Consideration must be given to whether the amount of force used is commensurate with a reasonable assessment of the circumstances and dangers at hand - see: Burgess and St. Thomas Police Force (March 22, 1989, OCCPS), and Gallo v. Smuland, [2006] O.J. No. 4511 (OSCJ) at para 45.

49Mr. Wallace clarified, in his factum, that his submissions on the use of force apply to the knee strikes delivered when Mark was on the ground, since it is the Appellant’s position that no knee strike occurred prior to the grounding.

50According to Mr. Wallace, the Hearing Officer erred in finding that the use of force was unnecessary. The Hearing Officer misapprehended the evidence that Mark was not violent, and therefore, that the force applied was unnecessary. By being “actively resistant”, Mark was being violent. Further, the finding that there was no threat of him becoming violent was speculative.

51Mr. Wallace submitted that the Hearing Officer misapprehended the “necessity” test. Const. McLaughlin was clear in his evidence that Mark was resisting and that was why he was grounded in the first place. Mark continued to resist while on the ground by not releasing his left arm for cuffing. Once the knee strikes were employed, Const. McLaughlin was able to gain compliance and complete the handcuffing. Therefore, the knee strikes, while Mark was on the ground, were necessary.

52Mr. Wallace submitted that the Hearing Officer acknowledged that the arrest was lawful and that Mark was resisting. As such, he argued that the Hearing Officer’s finding that Const. Jacobs used unnecessary force was unreasonable in the circumstances.

53Mr. Wallace also argued that the Hearing Officer erred in prohibiting counsel to elicit evidence from the police witnesses about their use of force training. As a result of this ruling, there was no evidence about whether or not the force of Const. Jacobs’ knee strikes was excessive. There was also no evidence before the Hearing Officer about what other options might have been available.

54Mr. Wallace submitted that the penalty imposed was harsh, excessive and out of proportion, given the officer’s history and previous penalties imposed for similar offences – see: Batista and Smith and Ottawa Police Services (May 8, 2007, OCCPS).

55According to Mr. Wallace, the Hearing Officer erred in considering Const. Jacobs’ more than 22 years of service and lack of prior disciplinary history as an aggravating factor on penalty. It is unreasonable to hold an officer’s numerous years of good service against him in determining penalty.

56Mr. Wallace stated that the Hearing Officer also erred in finding that the incident was not “spur of the moment” and that this was an aggravating factor.

57Mr. Wallace submitted that taking into consideration Const. Jacobs’ employment and disciplinary history, as well as similar cases, a penalty of five days would be appropriate.

Submissions of the Respondent Mark Krupa

58Mr. Granger submitted that the Penner decision, supra, does not overrule, modify or even address the Supreme Court of Canada’s prior decision, F.H. v. MacDougall, supra.

59He emphasized that the issue before the Supreme Court of Canada in Penner was issue estoppel, not the balance of proof, and the majority only referenced the balance of proof in one paragraph of its decision. In contrast, in F.H. v. MacDougall, supra, the main issue before the Supreme Court of Canada was whether there exists an intermediate standard of proof in civil cases (higher than the balance of probabilities but lower than the criminal standard of beyond a reasonable doubt).

60He argued that the isolated obiter comments pertaining to the burden of proof in Penner, supra, wherein the court’s own decision of F.H. v. MacDougall, supra, is not even referenced, should not be interpreted as reversing or modifying F.H. v. MacDougall, supra. Further, the case of Porter v. York (Regional Municipality) Police, [2001] O.J. No. 5970 (QL), referenced in Penner, supra, respecting the higher standard of proof under the PSA, predated F.H. v. MacDougall.

61Mr. Granger argued that it does not make sense that the Supreme Court of Canada would overrule its own 2008 decision on the standard of proof in civil cases without even citing, analyzing or considering the case.

62Accordingly, Mr. Granger stated that it is the Respondent’s position that the Hearing Officer applied the correct standard of proof: the balance of probabilities.

63He argued, further, that the Hearing Officer correctly articulated and applied the “clear and convincing evidence” test. The Supreme Court of Canada held in F.H. v. MacDougall, supra, at para 43 – 46 that what is required for evidence to be sufficiently clear, convincing, cogent and weighty is to convince a trier of fact that it is more likely than not that a particular event occurred.

64Mr. Granger argued that there was more than sufficient evidence to enable the Hearing Officer to conclude that it was more likely than not that the Appellant had struck the Respondent in the head with his knee prior to the grounding.

65Mr. Granger submitted that the Hearing Officer was entitled to accept some, all or none of the evidence of each witness. Mark and Zenon both testified that the Appellant struck him in the head with his knee before the grounding. This evidence was uncontradicted, since Const. Zapata was not in a position to see what the Appellant did, and Const. McLaughlin admitted that he did not see a knee strike being applied but also could not say that one was not applied prior to the grounding. Also, Const. McLaughlin testified that Const. Jacobs approached Mark “like a bull”. The latter was consistent with the tenor of what Mark and Zenon said happened, as well as Zenon’s statement, heard by Const. Zapata, that his brother had been kneed.

66Mr. Granger submitted that even though the evidence of Mark and Zenon differed from each other and from the evidence of other witnesses on certain points, the Hearing Officer can still accept their uncontradicted evidence as proof that it was more likely than not that a knee strike was administered to Mark’s head before grounding.

67Mr. Granger submitted that the Hearing Officer did not misapprehend the “necessity” test as it related to the knee strikes, administered after Mark was on the ground. The Appellant conflated the evidence of Mark’s behavior before and after the grounding. There was no evidence that Mark was being actively resistant after he was grounded. The Hearing Officer noted that Const. McLaughlin admitted that Const. Jacobs’ body weight on top of Mark may have prevented Mark from releasing his hand after the grounding.

68Mr. Granger submitted that there was no contradiction in the Hearing Officer’s findings on whether the officers had Mark under control before and after the grounding. Before the grounding, she found that Const. McLaughlin had the “situation in hand”, meaning he had a plan to ground Mark without the assistance of Const. Jacobs. There is no evidence that Const. McLaughlin required assistance in grounding Mark, who was much smaller. After the grounding, Const. McLaughlin still needed to cuff Mark’s left hand for him to be “under control”.

69Moreover, Mr. Granger argued, the issue at the hearing was not whether Mark was under control. Instead, the issue was whether Const. Jacobs’ interventions, in the form of knee strikes, were “necessary” to bring Mark under control. Mr. Granger submitted that the Hearing Officer’s finding that the knee strikes were unnecessary, while Mark was on the ground, was supported by the evidence.

70Mr. Granger stated that the use of force training received by Const. Zapata and Const. McLaughlin was irrelevant to the issues before the Hearing Officer. Their training would not support an inference that Const. Jacobs received the same training or that their understanding of the training was correct. To be relevant, evidence on use of force training would need to be given by a witness qualified as an expert in use of force procedures.

71On the question of penalty, Mr. Granger submitted that the Hearing Officer cited numerous cases and a penalty of forfeiture of 12 days’ pay fell within the appropriate range of available penalties. He argued that to properly denounce and deter police misconduct, there should be much more severe consequences for serious misconduct on the part of police.

Submissions of the Respondent Ottawa Police Service

72Ms. Huneault stated that she agreed with Mr. Granger’s submissions that the law on the standard of proof in civil cases, as stated by the Supreme Court of Canada in F.H. v. MacDougall, supra, still applies and is unaltered by Penner, supra.

73However, Ms. Huneault also noted that the Hearing Officer referenced and applied both the “clear and convincing evidence” test from the PSA in Carmichael and Ontario Provincial Police (21 May, 1998, O.C.C.P.S.) and the balance of probabilities standard in F.H. v. MacDougall, supra.

74Ms. Huneault argued that the Appellant’s arguments and factum can be reduced to a different interpretation of the facts assessed by the Hearing Officer. According to Ms. Huneault, the findings and conclusions of the Hearing Officer are correct in law and reasonable in fact.

75Ms. Huneault submitted that the evidentiary and credibility findings of the Hearing Officer must be accorded considerable deference unless an examination of the record reveals the Hearing Officer’s conclusions cannot reasonably be supported by the evidence – see: Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell Ont. 1583 (Div. Ct.), and McCormick v. Greater Sudbury Police Service (2010) ONSC 270.

76Ms. Huneault stated that the Appellant relied almost exclusively on discrediting the evidence of Zenon. The Hearing Officer relied on Zenon’s evidence in mutual dependence with other evidence to reach her decision. While there are some inconsistencies in his evidence, they were minor in nature, explainable and, in some instances, bolstered his credibility.

77Ms. Huneault argued that Zenon contradicted Mark’s evidence with respect to the conversation they had in the car after the first encounter with Const. Jacobs and with respect to Mark’s positioning during arrest. He also contradicted Mark’s assertion that he had a brief dialogue with Const. McLaughlin at the point of arrest. She argued that these contradictions give further credence to Zenon’s reliability since they were not helpful to Mark and suggest there was no collusion between the brothers, in preparing for the hearing.

78Regarding Zenon’s evidence that Mark was compliant, Ms. Huneault submitted that it is unreasonable to expect a 15 year old boy to differentiate between active resistance and compliance. His brother complied with the demand to exit the car, and he was not assaultive or fleeing. Ms. Huneault argued that it is reasonable that Zenon would perceive Mark’s behavior as compliant, and she argued that he was not lying as the Appellant suggests.

79Ms. Huneault disputed the Appellant’s argument that the Respondent placed undue reliance on Const. McLaughlin’s admission in cross-examination, that it was possible a knee strike occurred while Mark was standing. The Hearing Officer did not make this finding in isolation of the totality of evidence before her. Ms. Huneault urged that the Hearing Officer’s decision be read as a whole and not deconstructed – see: Wilson and Ontario Provincial Police (November 20, 2006, OCCPS), and Hampel and Toronto Police Service (August 14, 2008, OCCPS).

80Ms. Huneault also argued that Const. McLaughlin’s admission that he could not say the knee strike did not happen casts doubt on his powers of observations and credibility with respect to his assertion in examination in chief that no knee strike occurred during grounding.

81Ms. Huneault argued that the Hearing Officer did not err in prohibiting counsel from eliciting “use of force” evidence from police witnesses who were not involved in the delivery of knee strikes. These witnesses were not experts on the use of force and their understanding and/or interpretation of the training they received was irrelevant. The appropriate method of eliciting this information would have been from Const. Jacobs or a use of force expert in the area.

82On the issue of penalty, Ms. Huneault argued that the penalty was appropriate and in proportion with previous penalties imposed for similar offences - see: Batista and Smith and Ottawa Police Service, supra, Bargh and Ottawa Police Service (Supt. (Ret’d) Robert Fitches, November 16, 2007), Turgeon and Ontario Provincial Police (November 5, 1999, OCCPS), Lord and Ottawa Police Service (December 17, 2009 Supt. (Ret’d) Robert J. Fitches), Huard v. Romualdi, Bourd of Inquiry (Police Service Act, September 27, 1993), and Mesic v. Ottawa Police Service, (Supt. (Ret’d) Knowlton Roberts, December 22, 2009)

83Ms. Huneault argued that the Hearing Officer did not err in considering Const. Jacobs’ years of service when determining penalty. She argued that an officer with many years of service should have sound judgment and the ability to use measured force.

84Ms. Huneault also submitted that the Hearing Officer gave reasons to support her conclusion that Const. Jacobs’ involvement was not “spur of the moment”.

Reply

85Mr. Wallace submitted that it is illogical to find that the Hearing Officer applied two different standards of proof. The Hearing Officer stated that she was deciding the case on the balance of probabilities and she did just that.

86Mr. Wallace argued that the standard of proof in civil cases is set by common law whereas legislation normally sets the standard of proof in administrative law cases.

Issues

87The issues in this appeal are:

Did the Hearing Officer apply the wrong standard of proof?
Did the Hearing Officer have sufficient evidentiary foundation to support her finding that Const. Jacobs kneed Mark prior to the grounding?
Did the Hearing Officer misapprehend the “necessity test” in finding Const. Jacobs applied unnecessary force?
Did the Hearing Officer misapprehend the evidence in finding Const. Jacobs guilty of Unlawful Exercise of Authority?
Did the Hearing Officer err in prohibiting counsel from eliciting evidence of their own “use of force” training from the witness officers?
Did the Hearing Officer err in imposing a penalty of 12 days’ pay?

Reasons and Analysis

88The Standard of review for the Commission with respect to the Hearing Officer’s factual findings is reasonableness: see Housen v. Nikolaisen, 2002 SCC 33, and Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190

89The standard of review with respect to the Hearing Officer’s interpretation of the law is correctness: see Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (Ont. C.A.)

90The Supreme Court of Canada described the standard of reasonableness in Dunsmuir v. New Brunswick, supra:

“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.”

91Past 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.)

92In certain limited cases it may be open to the Panel to reach a different conclusion from the trier of fact. However, the Panel should only intervene if there has been an error in principle, or relevant factors have been ignored: see Williams, 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).

93An appeal to the Commission is an appeal on the record. Unlike the trier of fact, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to the Hearing Officer’s findings, unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence: see Blowes-Aybar and Toronto (City) Police Service, supra.

Standard of Proof

94The identification and application of the correct standard of proof are legal issues and the standard of review is correctness – see Hall v. Ottawa Police Service 2008 CanLII 65766, at paragraphs 38 to 43.

95The Appellant submitted that in light of the Supreme Court of Canada’s recent decision of Penner, supra, the Hearing Officer applied the wrong standard of proof. Specifically, the Hearing Officer applied the balance of probabilities when, according to the Appellant, the correct burden of proof was clear and convincing evidence, which is a higher standard. The Appellant acknowledged that at the hearing, both the prosecution and defense took the position that the balance of probabilities was the correct standard of proof, relying on the Supreme Court of Canada’s decision F.H. v. McDougall, supra.

96In Penner, supra, the central question before the Supreme Court of Canada was whether findings made in the administrative/police discipline process – specifically, that Mr. Penner’s arrest was lawful, and the force used during his arrest was necessary – could be applied to estop Mr. Penner, from re-litigating his allegation that the police conduct was unlawful, in his civil action for damages.

97Therefore, Penner, supra, was not about the standard of proof, and the Court did not undertake an analysis of the law on the standard of proof. No mention is made in Penner, supra, of the Court’s leading case on the standard of proof in civil proceedings, F.H. v. McDougall, supra, where in very clear language, the Court determined that in civil proceedings like Part V disciplinary matters, there is a single standard of proof (the balance of probabilities), and evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.

98Only one paragraph of the majority judgment in Penner, supra, makes reference to the standard of proof. In obiter, the majority judgment characterizes the balance of probabilities as a “lower standard of proof” than “clear and convincing evidence” under the PSA. In this same paragraph, the Court refers to Porter, supra, where the court refused to apply issue estoppel, after an acquittal in a police disciplinary hearing, because the hearing officer’s decision “was determined by a higher standard of proof and might have been different if it had been decided based on the lower civil standard.” Significantly, Porter, supra, predates F.H. v. McDougall, supra.

99Given that Penner, supra, was not about the standard of proof, and given that the comments about the standard of proof in one paragraph of the majority decision were obiter and referenced a case which pre-dated F.H. v. McDougall, supra, I agree with the Respondents’ position that the law on the standard of proof in civil proceedings, which would include proceedings under Part V of the Act, is set out in F.H. v. McDougall, supra, and that Penner, supra, does not reverse or alter the law on the standard of proof.

100Section 84 of the Act provides that the charge must be proved on “clear and convincing evidence”. This section describes the nature of evidence required to satisfy the standard of proof. The section does not enunciate a standard of proof - see: Burrows and Ontario Provincial Police (August 13, 2012, OCPC) at para 84 and 85.

101The Hearing Officer stated that in reaching her decision, she relied on Carmichael and Ontario Provincial Police, supra, and “more significantly”, on F.H. v. McDougall, supra. She quoted from the former case as follows at page 20:

“The burden of proof in this case is that of “clear and convincing” evidence. There must be weighty, cogent and reliable evidence upon which a trier of fact, acting with care and caution, can come to a reasonable conclusion that the officer is guilty of misconduct.”

She proceeded to quote, at considerable length, from F.H. v. McDougall, supra, as follows:

“[43] An intermediate standard of proof presents practical problems. As expressed by Rothstein, Centa and Adams at pp. 466-67:

As well, suggesting that the standard of proof is “higher” than the “mere balance of probabilities” inevitably leads one to inquire what percentage of probability must be met? This is unhelpful because while the concept of “51 percent probability”, or “more likely than not” can be understood by decision makers, the concept of 60 percent or 70 percent probability cannot.

44Put another way, it would seem incongruous for a judge to conclude that it was more likely than not that an event occurred, but not sufficiently likely to some unspecified standard and therefore that it did not occur.

In my view, the only practical way in which to reach a factual conclusion in a civil case is to decide whether it is more likely than not that the event occurred.

46Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.” [Emphasis added.]

102Based on the above, I am satisfied that the Hearing Officer identified and applied the correct standard of proof, the balance of probabilities, as outlined in F.H. v. McDougall, supra and also turned her mind to the nature of the evidence required by the Act (“clear and convincing and cogent”).

Evidentiary foundation

103I now turn to the second issue, whether the Hearing Officer’s Decision had a sufficient evidentiary foundation to support the finding that Const. Jacobs kneed Mark before the grounding, on clear and convincing evidence.

104The finding that the evidence satisfies the standard of proof is a question of fact, and the standard of review is reasonableness – see Dunsmuir, supra.

105In finding that Const. Jacobs kneed Mark prior to the grounding, the Hearing Officer relied on the following evidence:

Const. McLaughlin’s testimony that after he had made the decision to ground Mark and had a plan for doing same, Const. Jacobs entered the fray “like a bull”;
Mark’s testimony that he believes Const. Jacobs’ knee struck his head;
Zenon’s evidence that he witnessed Const. Jacobs knee his brother;
Const. Zapata’s evidence that he heard Zenon make the statement, “[Const. Jacobs] kneed him in the head, he hit, he hit my brother”; and
Const. McLaughlin’s admission on cross-examination that although he did not witness Const. Jacobs knee Mark before the grounding, he could not give evidence that it did not happen.

106Mr. Wallace argued that Zenon’s evidence was not reliable because, as Mark’s brother, he was an “interested party”. He also argued that the Hearing Officer put too much weight on Const. McLaughlin’s admission on cross-examination that the knee strike (prior to grounding) was possible.

107The Hearing Officer is in the best position to determine the credibility of witnesses, and it is well established that deference must be accorded to the Hearing Officer’s findings as to credibility. See: Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para 38-39, Blowes-Aybar and Toronto (City) Police Service, supra, and McCormick v. Greater Sudbury Police Service, supra.

108Moreover, the Hearing Officer did not rely on Zenon’s evidence that he witnessed his brother being kneed by Const. Jacobs in isolation. She also considered Const. Zapata’s evidence that he heard Zenon verbalize what he witnessed, as well as Const. McLaughlin’s evidence that Const. Jacobs entered the fray “like a bull”.

109I also cannot agree that the Hearing Officer placed excessive weight on Const. McLaughlin’s admission that it was possible Const. Jacobs kneed Mark prior to the grounding. This was simply one factor which she took into consideration.

110Further, given that Const. McLaughlin’s evidence was that he was in the process of grounding Mark (using another method) when Const. Jacobs entered the fray “like a bull”, and given that Const. Jacobs was considerably taller than Mark, the Hearing Officer’s finding that Const. Jacobs kneed Mark prior to the grounding was not implausible.

111Mr. Wallace advanced a different interpretation of the evidence. However, the Hearing Officer’s finding that Const. Jacobs kneed Mark before the grounding falls within the range of possible acceptable outcomes, defensible in respect of facts and law.

Misapprehension of Evidence - The “Necessity Test” and “Use of Force”

112I have dealt with the third and fourth issues (see paragraph 86) under the same heading, as did the Appellant in his factum.

113As stated in his factum, the Appellant’s position that the Hearing Officer misapprehended the “necessity test” and the evidence on the use of force applies only to the two knee strikes delivered by Const. Jacobs after the grounding, since it was also the Appellant’s position that no knee strikes occurred before the grounding.

114The charge of Unnecessary Exercise of Authority is defined in the Code of Conduct as:

“2(1) Any … police officer commits misconduct if he or she engages in

(g) Unlawful or Unnecessary Exercise of Authority,

in that he or she …

(ii) uses any unnecessary force against a prisoner or other person contacted in the execution of duty;”

115The Hearing Officer relied on the case of Burgess and St. Thomas Police Force, supra, to define “unnecessary”, and quoted as follows at page 22 of her decision:

“The word “unnecessary” as used in the section in question might mean “not absolutely essential” or it might mean “unreasonable under the circumstances” … We find that the word “unnecessary” as used in the section does not mean “not absolutely essential” but rather means something closer to “unreasonable under the circumstances” considering the other options that were in fact available”.

116The Hearing Officer acknowledged that the officers did not have Mark under control, but concluded that the two knee strikes (after grounding) were unnecessary because Const. McLaughlin (6’2” & 240 lbs.) and Const. Jacobs (larger than Const. McLaughlin) were considerably larger than Mark (5’11” and 150 lbs.), and they had Mark in a “prone position with one handcuff engaged”. She also noted that neither Const. McLaughlin nor Const. Zapata made the decision to apply further force to achieve the handcuffing. Based on these considerations, she concluded:

“It is the tribunal’s assessment that Constable Jacobs did not properly assess the need for the application of the use of force including the application of the officers’ body weight upon Mark in order to gain compliance and affect the arrest of Mark.”

117I do not accept the Appellant’s position that the Hearing Officer misapprehended the evidence in concluding that Mark was not violent. The Hearing Officer accepted Const. McLaughlin’s characterization of Mark as being “actively resistant” prior to the grounding. There was no evidence that Const. McLaughlin equated active resistance with violence.

118After the grounding, the Hearing Officer accepted that the officers did not have Mark “under control” until they had handcuffed both of his hands, but she no longer characterized him as “actively resistant”. The officers were unable to immediately cuff his other arm because his arm was pinned under his body. Const. McLaughlin conceded that Const. Jacobs’ body weight on top of Mark may have been the reason Mark’s hand was not released.

119The Appellant also submitted that it was contradictory for the Hearing Officer to find that Const. McLaughlin had the situation in control (before Const. Jacobs entered the fray), but to find that the officers did not have Mark under control after the grounding.

120It is clear from the Hearing Officer’s reasons, read as a whole, that she accepted Const. McLaughlin’s testimony that he had a plan for grounding Mark which did not involve or require Const. Jacobs’ assistance or intervention. In other words, the fact that Const. McLaughlin had a plan for grounding Mark, which he was putting into action, constituted having the situation “in control”. The Hearing Officer did not, however, equate having the situation in control to having Mark completely under control (i.e., both hands cuffed).

121I do not accept Mr. Wallace’s argument that because the Hearing Officer found the arrest to be lawful and Mark to be resisting, then it follows that Const. Jacobs was justified in using force. The Hearing Officer gave clear, well justified and intelligible reasons to support her conclusion that the two knee strikes administered by Const. Jacobs after the grounding amounted to “unnecessary force”.

122The Hearing Officer’s interpretation of the law on the use of “unnecessary force” in the course of duty is correct, and her reasons for concluding that the two knee strikes delivered by Const. Jacobs after the grounding amounted to “unnecessary force” are supported by the evidence and fall well within the range of possible and acceptable outcomes, defensible on the facts and law.

Evidence on Use of Force Training

123The Appellant submitted that the Hearing Officer erred in refusing to allow Constables McLaughlin and Zapata to testify on the training they received on the use of force.

124As the Respondents submitted, neither Const. McLaughlin nor Const. Zapata are experts in the use of force. Their understanding of the training they received would not support the inference that they correctly understood the training. For this reason, their testimony on this point was not relevant.

125If the Appellant wanted to introduce evidence on the training that is provided to officers in the use of force, the Appellant should have called as a witness, among other possible witnesses, a member of the Service who provides such training or oversees the provision of such training.

126As such, the Hearing Officer did not err in prohibiting Constables McLaughlin and Zapata to testify on the use of force training they received.

Penalty

127The standard of review for appeals on penalty is “reasonableness”. The Commission should only intervene where the Hearing Officer has made an error in principle or relevant sentencing factors have been ignored. See: Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047, OCCPS; Favretto and Ontario Provincial Police (September 2001, OCCPS) and Constable McPhee and Brantford Police Service (March 28, 2012, OCPC).

128The Hearing Officer’s decision on penalty must be consistent with other similar cases and must address the appropriate dispositional factors, including seriousness of the misconduct, public trust, damage to the reputation of the service, recognition of the seriousness of the misconduct, potential for rehabilitation, the effect on the officer, specific and general deterrence and the officer’s service record. Mitigating or aggravating circumstances should also be considered. See: Schofield and Metropolitan Police (1984) 2 O.P.R. 613 (O.P.C.) and Williams and Ontario Provincial Police, supra.

129The Hearing Officer considered the cases presented to her where the penalty ranged from 8 days to 15 days and articulated clear and intelligible reasons as to why the appropriate penalty, in this case, should be more or less than what was imposed in those cases.

130The Hearing Officer also addressed the appropriate dispositional factors in her decision.

131Mr. Wallace argued that it was unreasonable for the Hearing Officer to consider Const. Jacobs’ 22 years of service and lack of disciplinary history as aggravating factors on penalty. The Hearing Officer actually considered the fact that this was Const. Jacobs’ first offence and that he has no other “detractors” on his performance record to be mitigating. The Hearing Officer did not consider his prior disciplinary record to be aggravating, which I agree would be unreasonable.

132Rather, the Hearing Officer considered the fact that Const. Jacobs is an experienced officer, requalifies annually on the use of force training, and holds an informal leadership position to be aggravating, as someone with such experience and in such a position “should have known better.” She concluded:

“… it is essential that other members of the police service recognize his behavior in this situation as something that will not be tolerated. I agree with the prosecutor that the reputation of the police service has been tarnished in the mind of Mr. Krupa and his family, the public and other police officers. The aggravating factors speak to the damage to the reputation of the police service, the public interest and the seriousness of the misconduct.”

133The Hearing Officer’s analysis and conclusion are reasonable in the circumstances.

134Mr. Wallace also argued that the Hearing Officer erred in finding that the incident was not “spur of the moment” and that this was an aggravating factor. The Hearing Officer gave clear, intelligible reasons for finding that the incident was not “spur of the moment”. She distinguished the case from Cardinal and Ottawa Police Service wherein Supt. (Ret’d) Robert J. Fitches found it to be mitigating that the assault in that case was momentary:

“Constable Jacobs did not act on the spur of the moment. He had the opportunity to not engage in the first place as Constable McLaughlin was effecting the arrest prior to Constable Jacobs “coming in like a bull”. Constable Jacobs’ decision to use his knee in the prone Mr. Krupa’s upper back was again excessive given that Mr. Krupa was not compliant but offering no threat of violence.”

135While the Hearing Officer did not find the circumstances of the present case and use of force to be mitigating, she also did not state that they were aggravating.

136For all of the above reasons, I answer all of the questions in paragraph 87 in the negative.

137The appeal is dismissed for the above reasons.

DATED AT TORONTO THIS 25TH DAY OF MARCH, 2014

Jacqueline Castel, (OCPC)