Christopher Bernardon v. Windsor Police Service, 2017 CanLII 37593

ONTARIO CIVILIAN POLICE COMMISSION

DATE: May 25, 2017

CASE NAME: CHRISTOPHER BERNARDON AND WINDSOR POLICE SERVICE

FILE: OCPC-15-ADJ-0349

In the Matter of an Appeal Under Section 87 (1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended

PC Christopher Bernardon APPELLANT

-and-

Windsor Police Service RESPONDENT

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair Ted Crljenica, Vice-Chair Karen Restoule, Member

Hearing Date:

August 24, 2016

Hearing Location:

Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3

Representatives:

Glen S. Donald and Lucas O’Hara, Counsel for the appellant David M. Amyot, Counsel for the respondent

Introduction

1This appeal arises from the conviction of the appellant on October 31, 2014 after his plea of guilty to the following allegation of misconduct:

It is alleged that on Sunday June 2, 2013 while interviewing a sexual assault victim you acted in a disorderly manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force as prescribed in section 2(1)(a)(xi) of the Code of Conduct, Ontario Regulation 268/10 (the Code), under section (1)(a) of the Police Services Act, R.S.O. 1990, c.P.15 (the PSA).

2In exchange for the plea of guilty to this charge, a second charge of misconduct for insubordination was withdrawn. The hearing before Superintendent (Retired) Richard Finn (the Hearing Officer) proceeded on the basis of an Agreed Statement of Facts (the ASF). Counsel for the parties also agreed to a joint proposal on the penalty which the Hearing Officer accepted ordering on January 27, 2015 that the appellant be reduced in rank from First Class Constable to Second Class Constable for a period of nine months.

3The only issue then left to be decided by the Hearing Officer was the commencement date for the reduction in rank as the appellant had been taken off active duty on October 23, 2013 and had not yet returned to work as of the date of the penalty hearing on January 12, 2015. The Hearing Officer ordered that the reduction in rank would commence upon the appellant’s return to regular duty.

4The appellant, through new counsel appealed to the Commission both the finding of guilt and the penalty imposed. He brought a motion, heard with the appeal, to “introduce new or additional evidence under section 87(5) of the PSA” in support of his principal position that the guilty plea should be struck because of the ineffectiveness or incompetence of his former counsel, hereinafter referred to a Ms. A. The proposed fresh evidence consisted of affidavits from the appellant, Dr. Barron, Dr. Bridgeo and Dr. Burke.

5The respondent, in turn, sought to introduce an affidavit from Inspector Jim Farrand of its Professional Standards Branch. This affidavit had attached various documents from the file of Ms. A.

Ruling

6For the reasons that follow, we allow the appellant’s motion for the introduction of the fresh evidence and further accept the affidavit of Inspector Farrand.

7We confirm the finding of guilt based on the appellant’s plea of guilty and the penalty imposed by the Hearing Officer.

Background

8On the afternoon of June 2, 2013 the appellant and his partner Cst. MacPhee responded to a call about an assault in progress upon a fifteen year old female, E.W. The appellant and his partner interviewed E.W. at the Sexual Assault Treatment Centre (the SATC) at Windsor Regional Hospital (WRH). During this interview they received information that E.W. was being prostituted and sexually assaulted by certain male individuals.

9The SATC is in a segregated area of WRH and is staffed primarily by registered nurses certified as sexual assault nurse examiners. Two of these nurses, Pierozynski and Porto, assisted in the treatment of E.W. at the SATC. The appellant upon arriving at the SATC entered an adjoining interview room then removed his kevlar vest and uniform shirt placing them on a piece of furniture. There was some suggestion that he also removed his duty belt which had his firearm attached, but he strenuously denied doing so.

10The appellant remained out of uniform while in the area of the SATC for about one hour. He was observed by nurses Pierozynski and Porto, E.W., his partner and two Children’s Aid Society workers.

11The appellant left the SATC on “several occasions” during the course of his investigation to call his Staff Sgt. and have a cigarette. While not specifically set out in the ASF, the appellant’s counsel acknowledged during the hearing of the appeal that he left the SATC three times getting fully dressed each time then again removing his vest and shirt (while still wearing a plain T-shirt) upon returning to the area.

12On June 12, 2013 another nurse who worked in the SATC but who was not present on June 2nd, wrote the following letter to the respondent’s Professional Standards Branch:

I was informed by 2RN’s, SANE, that on June 2, 2013 at 1710 hours, Constable Chris Bernardon while in the Sexual Assault Treatment Centre did remove his uniform shirt and vest, stating “I am hot and sweaty”. Also in front of all present did say “I need to go out for a smoke and call my staff”.

I have worked as a community partner with the Windsor Police Services and have found the officers to be professional, caring and compassionate. This unprofessional behaviour is both concerning and discreditable to the Windsor Police Service.

13The appellant was served with a Notice of Hearing on October 4, 2013 alleging that he committed discreditable conduct and insubordination. He was also served with a Notice pursuant to section 85(4) of the PSA which read in part: “…that if misconduct is proved on clear and convincing evidence in relation to any of the allegations with which you are currently charged, a penalty of demotion or dismissal may be imposed.”

14Earlier, on May 10, 2012, the appellant had pleaded guilty to two counts of discreditable conduct, arising from an unrelated incident, for which he received a one month demotion to Second Class Constable. On the same day he pleaded guilty to two additional counts of discreditable conduct, one count of damage to equipment and one count of insubordination. He received a further eleven month demotion to run consecutively to the one month demotion. This discipline history would have been relevant to the Hearing Officer’s consideration of an appropriate penalty in the appeal before us.

Issues

15The appellant framed the issues to be decided as follows:

1. Should the appellant be permitted to introduce new evidence on the appeal designed to challenge the validity of the hearing process?

2. Has the appellant discharged the onus of demonstrating that the plea was not valid and that the plea should be struck?

3. Alternatively, has the appellant demonstrated that there is evidence which, if properly considered, would have caused the Hearing Officer to conclude that the joint submission exceeded the appropriate range of penalties for the offence before him?

Analysis

1. Should the appellant be permitted to adduce new evidence on the appeal designed to challenge the validity of the hearing process?

16Counsel for the respondent advised that if the fairness of the hearing process was an issue, he was content to allow the introduction of the evidence on the narrow issue of the effectiveness of the appellant’s counsel throughout the hearing process. Counsel did not agree, however, that new evidence should be allowed on the issue of the appropriateness of the penalty imposed.

17Section 87(5) of the PSA provides that a hearing before the Commission shall be an appeal on the record but that “…the Commission may receive new or additional evidence as it considers just”.

18The appellant’s principal reason for seeking to introduce the fresh evidence is in support of his submission that Ms. A.’s representation was ineffective or incompetent and that her incompetence caused him to make an “involuntary” guilty plea.

19The traditional four part test for the admission of fresh evidence on appeal was set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 as follows:

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

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

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

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

20The parties were given the opportunity to conduct examinations or cross-examinations on the proposed fresh evidence they sought to introduce but they declined to do so. The respondent did not choose to cross-examine Dr. Barron, Dr. Bridgeo or Dr. Burke.

21The Palmer test cannot be strictly applied in the circumstances of this case. All of the proposed evidence could have been provided had the matter proceeded to a hearing either on the merits of the charge or as part of the submissions during the penalty phase of the proceeding. Palmer is a case involving the admission of evidence in criminal proceedings where the rules of evidence and procedure are necessarily more rigid that in administrative proceedings. Sections 2 and 15 of the Statutory Powers and Procedures Act, allow for a more liberal approach to both evidence and procedural matters. In our view, where the proposed fresh evidence goes to the fairness of the hearing process, in this case specifically the voluntariness of the appellant’s guilty plea, the interests of justice would best be served by allowing its introduction. The hearing process includes the penalty phase. Once evidence is accepted, it should be considered on all issues. Accordingly, we allow the fresh evidence pursuant to our discretion under section 87(5) of the PSA.

2. Has the appellant discharged the onus of demonstrating that the plea was not valid and that the plea should be struck?

22The appellant submitted that his plea of guilty was not voluntary, was equivocal, was made even though he had a defence, was uninformed and his counsel’s ineffective representation resulted in a miscarriage of justice requiring the plea to be struck. This issue requires a further review of the history of the proceeding through to the guilty plea and the imposition of the penalty.

23According to the appellant, he has suffered from anxiety, accompanied by major depressive episodes, since about 2008. His conditions have been managed by Dr. Bridgeo (his family physician), Dr. Barron (a psychologist) and since June 2014 by Dr. Burke (a psychiatrist).

24Paragraphs 24-38 of the appellant’s affidavit set out his version of what occurred with E.W. and the staff at the SATC. He claimed that he suffered a panic attack when he realized he was “in the same area” of WRH where his former wife had previously made allegations of violent conduct against him. He admitted to removing his vest and uniform shirt after he began to experience what he says was “an overwhelming feeling of stress and anxiety”. He acknowledged that he told a nurse that he was feeling “hot and sweaty” but added that he felt like he was going to pass out.

25The appellant did not mention in his affidavit that when he left the SATC on at least three occasions he put his vest and uniform shirt back on only to remove them each time he returned. There is no suggestion that the appellant reported the panic attacks to his Staff Sgt. when he spoke with him during the course of his attendance at the SATC. He was able to return to his normal duties after leaving WRH and in fact assisted in the arrest of one the males mentioned by E.W. on the charge of human trafficking.

26The appellant was given a memorandum by the respondent on July 4, 2013 requiring that he respond to the letter from the nurse who wrote the June 12th letter complaining about his conduct. His written response was attached to his affidavit. He did not claim that he suffered a panic attack but instead that he was feeling the side effects of some medication and removed his shirt and vest because the SATC was hot and he was sweaty. He also indicated that when he left the SATC to “speak with the staff several times” he was in full uniform. He also wrote that he simply wanted to cool down in order to fulfill his responsibilities.

27The appellant also stated in his affidavit that he did not want to explain that he had a panic attack in his report because he wanted “to continue to preserve my right to privacy concerning my condition”.

28The affidavit goes on to describe the appellant’s version of his dealings with Ms. A. and his inability to participate fully or in person in the proceeding before the Hearing Officer. He believed that he had a complete defence to the charges based on is medical condition and that, at least initially, Ms. A. supported his belief. He expected that she would make arrangements to put forward the evidence of his treating doctors at the hearing.

29The hearing into the charges was originally scheduled to begin on May 27, 2014 but was adjourned to August then again to October 29, 2014. The adjournments were based on a letter form Dr. Barron who wrote that it would be “deleterious to [the appellant’s] mental health to force him to participate in a hearing”. Dr. Barron also wrote about the appellant’s moderate to severe anxiety which impacted his ability to make decisions at times regarding his employment.

30The appellant began seeing Dr. Burke in June 2014. In a report dated July 14, 2014, in support of the appellant’s claim for disability benefits, Dr. Burke wrote that the appellant “remains with moderate depression, anxiety, panic and avoidance”.

31Dr. Barron wrote another letter dated October 21, 2014 opining that it would not be in the appellant’s best interest from a mental health perspective to attend the hearing scheduled for the following week as requiring him to do so would have a “deleterious impact” on his mental health status.

32Ms. A. had written to the appellant on October 22nd indicating that she was aware that he had consulted another lawyer. She wrote that she required written instructions, advised him of the “possibility” that he would lose if they proceeded with the hearing and that if he lost, the prosecutor would seek his dismissal. She also advised the appellant that if he did retain other counsel the hearing would be adjourned.

33The appellant sent Ms. A. a lengthy email on October 26th stating that he did not wish to plead guilty, repeating his position that he had a panic attack on the day of the incident and asking Ms. A. if they were prepared to go to trial.

34Ms. A. wrote to the appellant again on October 27th, once more requesting written instructions because she did not believe that he was “viewing the matter realistically”. She advised him that he was not required to plead guilty but that he needed to understand the consequences of being found guilty.

35Counsel prosecuting the charges wrote to Ms. A. that same day indicating that the Cst. MacPhee would testify that when she asked the appellant why he had removed his vest and shirt he replied that it was hot and that he expected to be there a while. She was not aware of him making any reference to not feeling well.

36On October 27th the appellant provided Ms. A. with written instructions indicating that he wanted to proceed with the hearing and did not intend to plead guilty. He did not attend the first day of the scheduled hearing on October 29th. He stated in his affidavit that he had left a message with Ms. A.’s secretary that he was too sick to attend.

37The appellant’s Association representative attempted repeatedly to contact him on the 29th even attending at his home. Ms. A. emailed the appellant at 1:49 that afternoon telling him that it was imperative that he contact her immediately. He did so and within two hours Ms. A. wrote to the prosecutor advising that the appellant would plead guilty to the charge of discreditable conduct. She also advised the prosecutor that her position on penalty would be a demotion in the range of six to twelve months.

38The appellant, in his affidavit, set out his version of his conversation with Ms. A. when he agreed to plead guilty to the one charge in exchange for the second charge being withdrawn. He stated that she told him the following:

• If the hearing proceeded the Service would likely be granted the termination it was seeking.
• The opinions of Dr. Barron and Dr. Burke would not be of any assistance.
• If he did not attend the following day she would remove herself as counsel of record.
• His livelihood was at risk unless he pleaded guilty.

He further wrote that he felt he had no reasonable alternative but to plead guilty while still asserting his innocence to Ms. A.

39Unfortunately, we do not have Ms. A.’s version of what advice she gave him when he agreed to plead guilty.

40The appellant e-mailed Ms. A. on the morning of October 30th. Some extracts from this e-mail are as follows:

2. It must be an agreed statement of facts that I agree to. Last time, I never got to read the facts till 20 minutes before and told it was too late to dispute them. I trust this won’t happen this time because I have some solid representation (you) and I know you are working hard for me. There are also several points that I want to be included in the facts.

3. I will not acknowledge the gun part as you indicate to Amyot that I will not. My gun was on me the whole time.

4. With respect to penalty, I understand that you be arguing a demotion in rank for a period of between 6-12 months. I know when we first talked that you indicated that you believed 7 days pay would be appropriate. I would like it to be hours that I loose [sic] and not a demotion. I am financially strapped now and this would hurt me financially. I would like it if you could argue less than six months and cap the demotion at six month [sic]. But again I would like the hours instead of demotion.

41The ASF was prepared and submitted to the Hearing Officer on October 31st when the appellant personally attended the hearing to plead guilty. The appellant had expressed his concerns with the ASF as there was no reference to his being ill the afternoon of the incident at the SATC. According to the appellant, Ms. A. advised him that as there was no evidence to support his claim that he was ill the prosecution would not agree to its inclusion in the ASF. The matter was then adjourned to allow submissions as to penalty.

42Ms. A. had obtained a letter from Dr. Bridgeo dated November 30, 2014 for use at the penalty hearing. Dr. Bridgeo wrote the following in reference to the incident with E.W.:

Regarding the question of whether or not his symptoms could have been the result of a panic attack, I would state that based on his history over the past several years, and given the circumstances and location on the day in question, it is very possible and quite likely that the circumstances could lead to an exacerbation of his symptoms.

43For reasons that are not clear, despite instructions from the appellant, this letter was not presented to the Hearing Officer. Nor did Ms. A. present a letter the appellant prepared intending that it be given to the Hearing Officer, providing his version of what happened the afternoon of the incident with E.W. At the risk of speculating, it may have been that this material was not tendered because of the joint submission that was going to be presented to the Hearing Officer. Ms. A. had earlier expressed her concerns to the appellant that the nature of the medical evidence might lead the respondent to take the position that he was not fit to serve.

44The appellant submitted that he discharged the onus of demonstrating that his guilty plea was not “valid” and should be set aside. He submitted that the fresh evidence was sufficient to establish that the plea was involuntary, equivocal and uninformed. He further submitted that he had a defence to the charges that could have or should have been advanced but was not because of the ineffectiveness of his representation by Ms. A.

45In our view, the appellant has not discharged the onus on him to establish that his counsel before the Hearing Officer provided ineffective representation.

46Several criminal cases were relied upon by the appellant in support of his position that his plea of guilty should be struck. In R. v. Barwick [2005], O.J. No. 5400 the court wrote the following:

The plea must also be voluntary, in the sense that it is a conscious, volitional decision of the accused to plead guilty for those reasons which he or she regards as appropriate. Ordinarily, a plea of guilty involves certain inherent and external pressures. Plea negotiations in which a prosecutor pursues a plea of guilty in exchange for foregoing legal avenues open to it, or agrees not to pursue certain charges, do not render the subsequent plea involuntary. What is unacceptable is coercive or oppressive conduct of others or any circumstance personal to the individual that unfairly deprives the accused of free choice in the decision not to go to trial.

There is no closed list of circumstances calling into question the voluntariness of a guilty plea…examples [are] pressure from the court, pressure from defence counsel, incompetence of defence counsel, cognitive impairment or emotional disintegration…

47The appellant in his factum acknowledged that his medical disorder did not render him unfit to stand trial and did not render him incapable of pleading guilty. He submitted, however, that his diagnosed mental illness incapacitated his ability to think rationally and to withstand the pressures to plead guilty while in fact he was innocent or at least had a plausible defence.

48In R. v. M.A W. 2008 ONCA 555, [2008] O.J. 2738 the Court of Appeal made the following comments in considering whether a plea of guilty was voluntary:

A guilty plea is valid if it is voluntary, informed and unequivocal; conversely a plea that is not voluntary, not informed or not unequivocal is invalid and may be set aside on appeal. An appellant has the onus of showing invalidity on a balance of probabilities.

49The court in M.A.W. considered conflicting medical evidence as to whether the accused’s major depressive disorder affected the voluntariness of his guilty plea. In the matter before us, there is no such conflicting evidence. Dr. Barron did write that the appellant agonized over making decisions fearing that he might make the wrong one. However, nowhere does she, Dr. Bridgeo or Dr. Burke indicate that, whatever the extent of the appellant’s medical condition was, his ability to make a conscious, volitional decision was impaired to the point that he could not make such a decision. Agonizing over making a decision would not be unique to the appellant.

50We acknowledge that at the time of the hearing the appellant was on disability leave and under treatment from the above-noted health professionals. However, being on leave from the rigorous duties of a police officer does not equate to being unable to make a voluntary decision as to the disposition of the charges against him. This is especially so in view of the appellant’s acknowledgement above that he was fit to stand trial which would have included the ability to understand the proceedings and to provide instructions. Such instructions would include agreeing to a negotiated plea deal resulting in one of the charges against him being withdrawn while assuring that the prosecution would not ask for his dismissal.

51The appellant also submits that the ineffectiveness of his representation rendered his plea invalid. The usual protocol when an appellate body is asked to consider the effectiveness of trial counsel is to obtain an affidavit from that counsel, after a waiver of solicitor/client privilege, which would be subject to cross-examination: see R. v. Graham, 2014 ONCA 566. That protocol was not followed in this matter so there was no evidence from Ms. A. for us to consider other than the documents included in the Farrand affidavit. The Court of Appeal in Graham did state that the provisions of the protocol are not cast in stone. The court also wrote the following:

The critical issue is to ensure that sufficient evidence is placed before the court in respect of an ineffective assistance claim so as to permit the proper adjudication of the claim and to ensure the fairness to all parties, including the trial counsel whose assistance at trial is impugned by an appellant. In some cases, these objectives will be met without full compliance with the protocol.

52We accept that the ineffectiveness or incompetence of trial counsel could be a basis for setting aside a plea of guilty. We recognize that in some cases an affidavit from trial counsel will not be possible and other evidence may be considered as required. However, we do not find that the appellant has provided sufficient evidence that his representation by Ms. A. was incompetent in all of the circumstances.

53In R. v. Joanisse (1996), 1995 CanLII 3507 the Ontario Court of Appeal set out the following three components to be considered when a claim of incompetent representation is made:

1. The appellant must establish the facts on which the claim is made;

2. The appellant must establish that the representation provided was incompetent; and

3. The appellant must establish that the incompetent representation resulted in a miscarriage of justice.

54The court went on to state:

Incompetence is determined by a reasonableness standard measured by reference to counsel’s performance in the particular circumstances of the case from the point where counsel made the decision challenged on appeal. The wisdom of hindsight has no place in this assessment. This approach recognizes that in many situations counsel will have a wide range of options any of which if taken will constitute competent representation. Appellate courts must give deference to counsel and the competence assessment must be informed by a presumption in favour of competence.

55A miscarriage of justice was defined by Doherty J. in R. v. Archer, 2005 CanLII 3644 as follows:

A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict.

56To consider whether a miscarriage of justice occurred it would be useful to review the situation faced by the appellant and Ms. A. The appellant had just completed a lengthy period of reduction in rank because of earlier findings of misconduct. There was conflicting evidence as to what he said to his partner and the nurses present when he removed his vest and shirt. His partner did not support his position that when he removed these items he told her that he was ill. He left the area of the SATC at least three times to speak to his Staff Sgt. or to have a cigarette. At no time did he tell his Staff Sgt. that he was ill or in the throes of a panic attack. He subsequently blamed this panic attack on being in the “area” of WRH where his former spouse made “fictions [sic] complaints” about him. It is worth noting that the appellant did plead guilty to a domestic assault charge arising from these allegations, a fact not set out in his affidavit.

57Ms. A. advised the appellant that he could obtain new counsel prior to the start date of the hearing and importantly that if he chose to do so, the hearing would be adjourned.

58The plea deal negotiated by his counsel resulted in a projected financial loss to the appellant of, we are advised, of approximately $5,200.00 as opposed to the potential loss of his position, although a possibility that we do not consider was realistic in all of the circumstances.

59The appellant submitted that the letters from Dr. Barron and Dr. Bridgeo established that he suffered from a debilitating medical issue at the time of his involvement with E.W. at the SATC. Whatever information they had about what occurred that day came from the appellant. The letters they wrote do not set out many of the facts, reviewed above, that militated against a finding that his actions were the result of a panic attack. Neither physician went so far as to conclude that he did suffer such an attack at the time.

60The Record contains the notes of Dr. Burke taken at his first appointment with the appellant on June 27, 2014. He did not diagnose that the appellant suffered a panic attack and indeed it would have been difficult for him to make such a diagnosis months after the event. This was the reality faced by the appellant and Ms. A.

61We should also note that the resolution of the charges was a negotiated plea deal that akin to a settlement in what is essentially an employment matter. The Commission has previously expressed a reluctance to interfere with such a settlement: see Turpin and the Durham Regional Police Service, 2016 Can LII 13878 (ONCPC).

62To conclude on the ineffectiveness of counsel argument, we are not satisfied that the appellant has met the evidentiary burden to establish that his guilty plea should be set aside on the basis of the alleged ineffectiveness of counsel. We find that in all of the circumstances there was no miscarriage of justice.

3. Alternatively, has the appellant demonstrated that there is evidence which, if properly considered, would have caused the Hearing Officer to conclude that the joint submission exceeded the appropriate range of penalties for the offence before him?

63There is no need for us to repeat all of the circumstances of the offence in dealing with this submission. In order to succeed on this argument the appellant would have to establish the ineffectiveness of his counsel and that a miscarriage of justice occurred. The appellant was aware of the joint submission and participated by teleconference when the joint submission was presented to the Hearing Officer. The decision not to present evidence as to the appellant’s mental health when there was what we find to have been a reasonable joint submission as to penalty was one that cannot be faulted, especially given the appellant’s recent discipline history.

Decision

64The motion to adduce fresh evidence is allowed.

65Pursuant to section 87(8)(a) the Commission confirms the decision of the Hearing Officer finding the appellant guilty of discreditable conduct and confirms the penalty of a demotion to Second Class Constable for a period of nine months to commence upon his return to regular duty.