ONTARIO CIVILIAN POLICE COMMISSION
CASE NAME: Adam Nobody v. Cst. Babak Andalib-Goortani and Toronto Police Service
FILE: OCPC-15-ADJ-015
In the Matter of an Appeal Under Section 87 (1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended
Adam Nobody APPLICANT (PUBLIC COMPLAINANT)
-and-
Constable Babak Andalib-Goortani #9859 and the Toronto Police Service RESPONDENTS
-and-
The Independent Police Review Director INTERVENER
DECISION ON A MOTION
Panel: D. Stephen Jovanovic, Associate Chair
Hearing Date: By Written Submissions
Representatives: Mr. Adam Nobody Applicant (Public Complainant) Mr. Harry Black, Q.C. Counsel for Cst. Babak Andalib-Goortani, #9859, Respondent Ms. Sie-Wing Khow Counsel for the Toronto Police Service (TPS), Respondent Ms. Jean C. H. Iu Counsel for the Independent Police Review Director (OIPRD), Intervener
I. Introduction
[1]. This decision deals with a motion brought by the appellant to introduce fresh evidence at the hearing of this appeal currently scheduled for October 5, 2017. Pursuant to an order made by the Commission at a Pre-Hearing Conference on March 29, 2017 the motion was to be dealt with by way of the written submissions of the parties.
II. Ruling
[2]. For the reasons that follow, the motion is dismissed.
III. Background
[3]. This is another case that arose from the actions of a Toronto police officer during the G20 conference, just over seven years ago. The respondent officer pleaded guilty to one count of misconduct under Code of Conduct pursuant to the Police Services Act (the PSA) following his conviction on a Criminal Code charge of assault with a weapon. The appellant was the victim of the assault.
[4]. The hearing as to the penalty to be imposed on the respondent officer took place on October 6 and 28, 2015. The appellant was represented by counsel who made submissions as to penalty before Mr. Justice Ferrier (the Hearing Officer). In a decision dated November 10, 2015 the Hearing Officer imposed a penalty of the forfeiture of five days’ pay
[5]. Counsel on behalf of the appellant delivered a Request for Leave to Appeal the penalty on December 7, 2015. The Commission granted leave to appeal pursuant to section 87(4) of the PSA on June 6, 2016.
[6]. An issue arose as to the failure of the appellant’s counsel to file a Notice of Appeal within the prescribed time which issue was resolved in the appellant’s favour. The Commission set time guidelines for the parties to deliver their factums and scheduled the hearing of the appeal for March 29, 2017.
[7]. The appellant sent an email to the Commission and the parties on March 17, 2017 advising that he was no longer represented by counsel and requested an adjournment of the hearing of the appeal in order to file new evidence.
[8]. The Commission granted the appellant’s request for an adjournment and set time lines for the parties to deliver their factums on the motion.
IV. Issues
[9]. The appellant seeks to introduce the following “fresh” evidence, most of which was not before the Hearing Officer.
Video footage of the appellant “punching and choking” a prisoner before he was a police officer.
A petition entitled “Toronto G20: Do Not Allow Officer Babak Andalib-Goortani to return to the Police Force” and media articles referenced in the petition.
A letter from a retired police officer Thomas Gallant, the appellant’s uncle.
Testimonials from Dr. Golbarg Araghi and Dr. Teresa Sota.
Photographic evidence of the appellant’s bruising and assorted medical records.
Correspondence from the Toronto Police Legal Services and media articles entitled “It’s Time for Cops to Break the Blue Code of Silence” and “Breaking the Blue Code of Silence”.
The report on the Toronto G20 of 2010 by the Ontario Ombudsman Andre Martin.
Photos of the respondent officer about to strike W.B.M. with his baton on June 26, 2010.
Documentation of the involvement of Constables Luke Watson and Todd Storey who had custody of the appellant after the incident with the respondent officer.
Internal correspondence from the respondent officer to Inspector Anthony Riviere dated 2010/10/26 and an accompanying media article.
The appellant also proposes to call three witnesses to give oral evidence at the hearing of the appeal. The first, Dr. Carol Vipari is to be called as an expert witness on the mental health and stability of police officers. The two other witnesses are police officers who had some involvement with the appellant on June 26, 2010.
[11]. The sole issue to be decided on this motion is whether the appellant should be permitted to introduce this fresh evidence at the hearing of the appeal.
V. Analysis
[12]. The respondent officer and the Toronto Police Service (the TPS) request the dismissal of the motion while the Independent Police Review Director (the Director) requests that the appellant be given a further opportunity by way of a teleconference or by way of further written submissions to, in effect, address the objections of the respondent officer and the TPS. The Director otherwise takes no position on the merits of the motion.
[13]. The starting point for this analysis is section 87(5) of the PSA which provides:
A hearing held under this section shall be an appeal on the record, but the Commission may or receive new or additional evidence as it considers just.
[14]. In considering whether to allow new or fresh evidence on an appeal, the Commission has generally applied the four part test taken from R. v. Palmer, [1980] 1 S.C.R. at page 775. The four parts are as follows:
The evidence should generally not be admitted if by due diligence, it could have been adduced at trial. Although this principle will not be applied with the same strictness in criminal trials as it would be in a civil trial;
The evidence must be relevant in that it bears upon a decisive or potentially decisive issue;
The evidence must be credible; and
The evidence must be such that if believed, it could, when taken with the other evidence adduced at trial, reasonably be expected to have affected the result.
[15]. The Commission has held that if the first part of the test cannot be met there is no need to consider the other parts and that, in any event, all four parts of the test must be met: Mulholland and the Peel Regional Police Service, 2014 CanLII 100627.
[16]. The appellant was represented by experienced counsel throughout the original hearing and he had the opportunity to present whatever evidence he thought was helpful to his position. An appeal to the Commission is not a second chance to make up any perceived shortcomings in a party’s case. The due diligence test was designed, in part, to strictly control any such attempts.
[17]. Turning to the proposed fresh evidence, it appears that items 1, 2, 3, 7, 8 and 9 pre-date or would have been available at the time of the hearing, with due diligence. Item 4 was part of the Record before the Hearing Officer and is already before the Commission. So too was the internal correspondence which is part of item 10. The media article also part of item 10 fails part 2 of the Palmer as its relevance has not been established. The Hearing Officer ruled that the photographs and records comprising item 5 were not admissible and accordingly cannot be considered as fresh evidence. Item 6 fails parts 1 and 2 of the Palmer test.
[18]. Lastly, dealing with the proposed oral evidence of Dr. Vipari and the two police officers, this evidence clearly was available at the time of the original hearing, with the exercise of due diligence. Its relevance is questionable at best. This evidence does not meet parts 1 and 2 of Palmer.
[19]. Writing that much of the proposed fresh evidence failed to meet the due diligence test, is not to be taken as a criticism of the appellant’s counsel before the Hearing Officer. There may have been any number of reasons why his counsel took the approach that he did, with the relevance of the proposed evidence certainly being one of them.
VI. Order
[20]. The motion brought by the appellant to adduce fresh evidence at the hearing of this appeal is dismissed.
DATED at Toronto, this 12th day of July 2017.
D. Stephen Jovanovic Associate Chair