Chouryguine v. Toronto Police Service, 2016 CanLII 63925

ONTARIO CIVILIAN POLICE COMMISSION

ORONTO POLICE SERVICE

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

BETWEEN:

POLICE CONSTABLE DMITRY CHOURYGUINE APPELLANT

-and-

TORONTO POLICE SERVICE

RESPONDENT

DECISION

Panel: D. Stephen Jovanovic, Associate Chair

Zahra Dhanani, Member

Hearing Location: Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, ON M7A 2T3

Hearing Date: 14 March 2016

Appearances:

Lawrence Gridin, Counsel for the Appellant

Sharon Wilmot, Counsel for the Respondent

Introduction

1. This decision arises from the Appeal by Constable Dmitry Chouryguine (“the appellant”) from his conviction on January 30, 2015 by Hearing Officer Superintendent D. Preston (“the Hearing Officer”) of insubordination contrary to section 2(1)(b)(ii) of the Schedule Code of Conduct, O. Reg. 268/10 under the Police Services Act, R.S.O. 1990, c. P.15 ("the PSA”). The appellant has not appealed the penalty of a reprimand with additional training imposed by the Hearing Officer in a second decision dated June 16,

Decision

2. Pursuant to section 87(8)(a) of the PSA, the Commission confirms the finding of insubordination and therefore the penalty imposed.

Background

3. Late in the evening of November 29, 2010, the appellant and his partner responded to a call for assistance from a member of the Toronto Anti-Violence Intervention

Strategy Team (TAVIS), who was involved in a confrontation with a suspect, Basman Elias, at a gas station.

4. The appellant arrived at the scene at about the same time as another TAVIS vehicle with three officers. He observed Elias assault the first officer who had called for assistance by hitting him in the chest with his hand prior to his attempt to flee the gas station parking lot where the incident was taking place.

5. As Elias left the parking lot in his vehicle, one of the officers was struck on the left elbow by the vehicle’s side view mirror. Another officer’s legs were struck by the vehicle’s driver’s side door. The appellant believed that Elias may have been armed and “traced” his leaving the scene with his own service pistol.

6. The appellant was not aware that Elias had, in fact, been identified. In an attempt to see the license plate, the appellant pursued the vehicle north on Jane Street and through side streets, eventually stopping at a parking lot on the northeast corner of Jane and Lawrence. The appellant’s police vehicle was not equipped with a radio, but he was able to communicate with his Division using a hand-held mitre until it fell under his seat, at which point, he lost communication with the Division.

7. The appellant believed that he could not stop his vehicle safely behind Elias in the parking lot, so he pulled alongside the driver’s side of the Elias vehicle, exited his vehicle, moved to the front passenger side a few feet in front of the Elias vehicle, pointed his firearm at Elias and ordered him to get out of the car with his hands up. While the appellant was in the process of doing this, his partner reached into the Elias vehicle through the open driver’s side window in an effort to take physical control of and

arrest Elias. This attempt was ineffective and Elias began to accelerate to again flee the scene.

8. The appellant believed that his partner might be crushed between the two vehicles and as Elias was accelerating towards him, he aimed his firearm at the vehicle believing that there was an imminent threat of death or grievous bodily harm to either him or his partner. The appellant then discharged his firearm three times striking the vehicle in the front driver’s side door, the rear driver’s side door and the trunk. Based on the location of the damage caused by the rounds, as found during a subsequent examination, it was determined that Elias was driving away from the appellant at the time the shots were fired. Elias was not apprehended at the scene.

9. Following an investigation into the shooting, the appellant was charged with insubordination in that he did, without lawful excuse, disobey, omit or neglect to carry out a lawful order.

10. The lawful order was in the form of the respondent’s

Procedure 15-04, which reads in part as follows:

“The discharging of a firearm at a motor vehicle is an ineffective method of disabling the motor vehicle. Discharging a firearm at a motor vehicle presents a hazard to both the officer and to the public. Members are prohibited from discharging a firearm at a motor vehicle for the sole purpose of disabling the vehicle.

Members are prohibited from discharging a firearm at the operator or occupant(s) of a motor vehicle unless there exists an immediate threat of death or grievous bodily harm to the officer(s) and or members of the public by a means other than the vehicle.”

Members shall be cognizant that disabling the operator of a motor vehicle, thereby disabling the control over that motor vehicle, may also present a hazard to both the officer and the public.

Except while in a motor vehicle, members shall not place themselves in the path of an occupied vehicle with the intention of preventing its escape. Additionally, members should not attempt to disable an occupied vehicle by reaching into it.

11. The appellant initially brought a motion to have the charge dismissed on the basis that the Procedure was unlawful. A different Hearing Officer heard and dismissed the motion writing in part:

I find much of Defence counsel’s argument, specific to justification and good faith, to be compelling. While not specifically referred in oral argument, contained in Defence counsel factum is the matter of Wolfe v. Ontario (Provincial Police) 2008. I find the application of justification arguments are dependent upon sufficient information placed before the trier of fact to present the subjective belief existent at the time and relied upon by the person seeking justification. The information in the Agreed Statement of Facts falls short of that threshold and I do not have sufficient information before me to assess the appropriateness of justification or good faith.

12. According to the appellant, the trial before the Hearing Officer was conducted precisely for the purpose of expanding the evidentiary record in order to allow the Hearing Officer to decide whether he had a subjective belief that his life was in danger and thereby, the only real issue to be decided would be the nature of his subjective belief.

13. The appellant testified before the Hearing Officer that when he fired his weapon, he believed he was going to die and that he “…absolutely had no time to think about procedures or policies. At that time, I had to save my life.”

14. The appellant called evidence from an instructor at the Ontario Police College, Chris Lawrence, as to the psychological and physiological impacts of high-stress encounters, the fight or flight mechanism, limitations on cognitive decision-making, perceptual narrowing and looming. Looming was described as a perceptual phenomenon that causes an object to appear bigger, faster, closer and more dangerous when it is moving towards the viewer, as opposed to when the same object is viewed from a different angle. Lawrence, who was accepted as an expert witness, also testified to a study in reaction time for officers to begin and stop firing their weapons in response to lights being turned on and off.

15. For a better understanding of the situation the appellant and his partner were facing when they pulled alongside the Elias vehicle, we are attaching as Schedule “A”, a graphic simulation of the scene that was before the Hearing Officer.

Reasons and Analysis

16. The appellant does not dispute, in this Appeal, the findings of fact by the Hearing Officer, nor does he argue that the Procedure was unlawful, as he did on his unsuccessful motion to have the charge dismissed.

17. The appellant did, however, question the rationale of the Procedure submitting that Toronto Police Officers are restrained from using their firearms to “preserve” themselves and are rendered effectively defenceless against such a threat. He contrasted this situation with what he submitted was the unrestrained right of civilians

under the Criminal Code to preserve themselves from a threat of grievous bodily harm or death posed by a driver using a vehicle as a weapon.

The Issues

18. The issues identified by the appellant, in his factum and oral argument, are as follows:

A) What is the applicable standard of review?

B) Did the Hearing Officer commit an error by treating insubordination as an absolute liability offence?

C) Did the Hearing Officer commit an error in holding that the appellant’s honest fear for his life was not a lawful excuse for violating the Policy? Specifically, the appellant argues:

i) The failure to apply a subjective analysis was an error;

ii) The appellant’s actions were objectively reasonable;

iii) The Hearing Officer erred by focusing on the time before the shooting and then applied the wrong analysis;

iv) The Hearing Officer erred in applying too high a standard to the appellant in a high-stress incident that unfolded in less than two seconds;

v) The Hearing Officer failed to appreciate or apply the expert

evidence on the timing of the decision to shoot.

A. The Standard of Review

19. The parties agree that the standard of review for the Commission with respect to the Hearing Officer’s findings of fact is reasonableness, but differed on the standard of review that applies to the interpretation of law. The appellant submitted that, whether the facts amounted to insubordination was a question of law which attracted a correctness standard. The respondent submitted that whether the conduct complained about amounted to insubordination was a question of mixed fact and law, where reasonableness was the standard of review. In our view, the Hearing Officer’s finding of insubordination is a question of mixed fact and law and a standard of reasonableness applies. Support for this conclusion can be found in Ontario Provincial Police v. Purbrick, 2013

ONSC 2276 where the Divisional Court wrote the following:

11The authorities relied on by the appellant with respect to a correctness standard for questions of law, predate the Supreme Court of Canada’s seminal decision in Dunsmuir v. New Brunswick, [2008] S.C.C. 9. In light of Dunsmuir and subsequent decisions, in particular Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 35 C.R. 654, we find that even on questions of law where related to interpretations of its home statute, the standard of review may be reasonableness. The one area in which a standard of correctness may apply is on questions of law not within the special area of expertise of the Commission.

Also see Dunsmuir v. New Brunswick, [2008] 1

S.C.R. 190

B. Did the Hearing Officer commit an error by treating insubordination as an absolute liability offence?

20. The appellant relies on P.G. v. Ontario (Attorney- General), [1996] O.J. No. 1298 (Div.Ct.); Blowes- Aybar and Toronto Police Service (February 28, 2003

O.C.C.P.S.); Rowe and Sault Ste. Marie Police Service (April 23, 2003, O.C.C.P.S.) None of these cases deal at length or in any substantial way with the concept of an absolute liability offence, but rather deal with when an “honest mistake” may amount to a defence to a charge or whether it may amount to a lawful excuse.

21. Section 2(1)(b)(ii) of the Schedule Code of Conduct in effect provides that a lawful excuse is a defence to a charge of insubordination:

(b) INSUBORDINATION, in that he or she,

(ii) without lawful excuse, disobeys, omits or neglects to carry out any lawful order;

This negates the concept of an absolute liability offence, a concept not discussed by the Hearing Officer. Accordingly, we do not accept the appellant’s submission on this point.

22. Exhibit 11 before the Hearing Officer was the Final Report, dated January 2008, on Pursuit and Firearm Discharge Review, which sets out the rationale for Policy 15-04. The appellant denied receiving any specific training on shooting at vehicles. He submitted that the Hearing Officer committed an error when she relied on her own personal knowledge as to the training which officers received since the Policy was introduced, therefore concluding that the appellant must have received the training, contrary to his evidence.

23. The Hearing Officer wrote that she did not believe that the appellant had not been trained on the Policy. She indicated that, during her own annual requalification at the Toronto Police College, she did receive training on the respondent’s Policy on shooting at vehicles. She concluded that, as the appellant testified that he attended every use of force requalification, she was confident that, in fact, he had received the training.

24. The respondent submitted that Hearing Officers are entitled to use their own experience in assessing evidence: Stevenson and York Regional Police, OCPC, November

7, 2013.

25. What is important in this matter is that the appellant, a member of the respondent Service since December, 2006, did not deny, in his evidence, that he was aware of the Policy. In fact, the focus of his evidence was that he did not have the time to think about policies when he and his partner were facing an imminent threat from Elias. Accordingly, we need not decide whether the Hearing Officer’s reliance on her own training and experience was appropriate.

26. The Policy is straightforward: Members are prohibited from discharging a firearm at the operator or occupant(s) of a motor vehicle unless there exists an immediate threat of death or grievous bodily harm to the officer(s) and/or members of the public by a means other than the vehicle [emphasis added]. The blanket prohibition is not difficult to understand.

27. The appellant believed Elias was armed and testified that he and his partner did not discuss what they would do once they stopped his vehicle. It seems inexplicable that

his partner would then reach into the open window of the potentially armed suspect’s vehicle, while the appellant positioned himself in front of the vehicle.

C. Did the Hearing Officer commit an error in holding that the appellant’s honest fear for his life was not a lawful excuse for violating the policy? Specifically, the appellant argues:

i) The failure to apply a subjective analysis was an error.

ii) The appellant’s actions were objectively reasonable;

iii) The Hearing Officer erred by focusing on the time before the shooting and then applied the wrong analysis;

iv) The Hearing Officer erred in applying too high a standard to the appellant in a high-stress incident that unfolded in less than two seconds;

v) The Hearing Officer failed to appreciate or apply the expert evidence on the timing of the decision to shoot.

28. The appellant submitted that a purely subjective belief can, in some circumstances, constitute a lawful excuse and a defence to a charge of insubordination, but acknowledged that this remains an open question. He then submitted that if objective reasonableness is a factor in the analysis, his belief that he was faced with the

imminent threat of grievous bodily harm or death was reasonable in the circumstances.

29. The Hearing Officer carried out an analysis of the appellant’s actions and considered his belief that he was facing an imminent threat both on a subjective and on an objective basis. She accepted his subjective belief when she wrote: “I will not take away his subjective belief as to the degree of harm he encountered.” She held, however, that a subjective belief alone could not constitute a lawful excuse and that the actions of an officer, viewed objectively, must be reasonable as well. We agree with the Hearing Officer that it is proper to consider an officer’s actions and beliefs on a reasonable or objective basis when deciding the defence of a lawful excuse.

30. We also agree with the appellant’s submission that the reasonableness of the beliefs or actions should be judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight. The Hearing Officer found that as Elias drove towards the appellant, he was able to remove himself from the imminent threat before he fired at the vehicle, even considering the reaction time. The Hearing Officer found that when the appellant removed himself from potential danger and shot at Elias after approximately six to eight feet of the vehicle had passed him, his action of discharging the firearm three times, including once to the trunk of the vehicle, was clearly wrong and there was no lawful excuse for this. We agree with this conclusion.

31. We do not accept the appellant’s submission that the Hearing Officer committed an error that would justify our revoking the finding of insubordination in that she placed too much emphasis or focus on the events leading up to the shooting. We note that the Agreed Statement of Facts

and the appellant’s own evidence dealt extensively with the events from the time the appellant responded to the first officer’s call for assistance at the gas station, through the high speed pursuit of Elias, ending with the confrontation and the shooting in the parking lot.

32. While the antecedent events were necessary to set the stage for the shooting, the Hearing Officer placed them in some perspective when she wrote:

The scope of this decision falls on a narrow period of time between the decision of the suspect to accelerate, the resulting actions of [the appellant and his partner when the appellant made] the decision to shoot at the vehicle. Many of the actions highlighted do not fall within the scope of the Notice of Hearing and have not been used to determine the outcome of this Hearing.

33. We are not satisfied that the Hearing Officer erred in applying too high a standard to the admittedly high stress situation that “unfolded” in less than two seconds, or that she failed to “appreciate” the expert evidence as to the timing of the decision to shoot.

34. The Hearing Officer, in fact, carefully analyzed the actions of the appellant in what she described as a fluid situation where decisions had to be made quickly within seconds. She, in fact, reviewed in some detail the expert evidence of Mr. Lawrence, but was free to draw her own conclusions on the evidence presented.

35. We find that in all of the circumstances the decision of the

Hearing Officer was reasonable.

Disposition

36. Pursuant to section 87(8)(a) of the PSA, the Commission confirms the finding of insubordination and therefore the penalty imposed.