Christopher Farkas v. Ontario Provincial Police, 2017 CanLII 53954

ONTARIO CIVILIAN POLICE COMMISSION

DATE: August 17, 2017

CASE NAME: CHRISTOPHER FARKAS AND ONTARIO PROVINCIAL POLICE

FILE: OCPC-16-ADJ-003

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 Farkas

APPELLANT

-and-

Ontario Provincial Police

RESPONDENT

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair

John Kromkamp, Member

Karen Restoule, Member

Hearing Date:

16 March 2017

Representatives:

James Girvin, Counsel for the appellant

Brian Whitehead, Counsel for the respondent

Kegan Chang, Student-at-law

Introduction

1. This appeal arises from the decision of Superintendent Robin D. McElary-Downer (the Hearing Officer) dated June 17, 2015, in which she found the appellant guilty of two counts of misconduct. The Appellant had pleaded guilty to one count of neglect of duty contrary to Section 2(1)(c)(i) and not guilty to one count of deceit contrary to Section 2(1)(d)(i) of the Code of Conduct, Ontario Reg. 268/10 (the Code) under the Police Services Act (the PSA).

2. The appeal relates only to the finding of guilt on the charge of deceit. The penalty imposed will stand if the finding of guilt is upheld, as acknowledged by the parties.

Disposition

3. For the reasons that follow, we confirm the finding of guilt on the charge of deceit.

Background

4. The particulars to the charge of deceit as “edited” by the Hearing Officer were as follows:

Between November 8, 2011 and June 8, 2013 he entered 18 inaccurate records into the Daily Activity Reporting (DAR) system by indicating that:

. He worked a shift when he did not (6 records); and

. He recorded an inaccurate absence code on days not worked (12 records).

. He knew or reasonably ought to have known that his misconduct was inappropriate.

5. Given one of the appellant’s defences to this charge, the particulars of the neglect of duty charge are relevant. These were as follows:

Between September 11, 2009 and August 5, 2013, he failed to maintain his notebooks in accordance with his duties, including that:

. There were 690 calendar days which were unaccounted for;

. He reported for at least 225 scheduled shifts for which he did not make an entry in his daily journal;

. He failed to make entries for days on which he was scheduled to work, but actually took time off;

. His notes were not in chronological order, were not made contemptuously [sic] and important events during his shift, such as vehicle stops, were not recorded as a matter of routine;

. There were a total of 163 blank pages dispersed over five notebooks with numerous blank lines and incomplete entries dispersed throughout;

. There were two occasions, on September 11, 2009 and June 18, 2010, where he made duplicate notes for the same date in different books or on different pages.

He knew or reasonably ought to have known that his conduct was inappropriate.

6. The substance of the defence to the deceit charge was that the actions or inactions of the appellant were just an extension of his neglect of duty, and that he did not intend to mislead, which intention was a necessary component of the charge.

7. The prosecution called seven witnesses who testified, in part, as to their knowledge or review of various documents or records, including the appellant’s notebooks, duty rosters, DARs, Niche (police records maintenance system) audits, C8 logs (long gun records), ICON (Integrated Court Offences Network) audits and PCC (Provincial Communications Centre) Logon audits. These other records provided independent evidence of the appellant’s attendance on the days in question.

8. The Hearing Officer found that the appellant was guilty of deceit for the six DAR records he completed showing that he had worked a shift when he was in fact off-duty and for six of the twelve times he recorded an inaccurate absence code.

Issues

9. The appellant submitted the following five issues for our determination:

i) The Hearing Officer did not properly apply the legal test for a finding of guilt on the charge of deceit, and in particular incorrectly analyzed the intent component.

ii) The evidence that was presented could not reasonably support a finding of guilt on the “clear and convincing evidence” standard.

iii) The Hearing Officer improperly interpreted section 83(6) of the PSA and considered and utilized the compelled statement of the appellant.

iv) The Hearing Officer failed to properly assess credibility and reliability of the witnesses’ evidence and the documentary evidence presented.

v) The Hearing Officer misapprehended the evidence by failing to identify evidentiary gaps in the prosecution’s case, which resulted in errors in her reasoning leading to incorrect conclusions that culminated in an incorrect finding of guilt on the charge of deceit.

Analysis

10. The Hearing Officer began her analysis of the evidence and issues by setting out the burden of proof on the prosecution. She wrote “[b]earing in mind the evidence presented, I need to ask if clear and convincing evidence exists, meaning weighty, cogent and reliable evidence, to make a positive finding of guilty for deceit”.

11. The Hearing Officer noted that the appellant was charged with one count of deceit pertaining to 18 DARs, separated into two particulars. She wrote that a finding of misconduct “in any one of these issues, or a combination thereof, is sufficient for a finding of guilt, if determined on clear and convincing evidence they constituted misconduct”.

12. The Hearing Officer considered that she had to decide three key issues in determining if the appellant was guilty of deceit, i.e. knowingly made or signed a false statement in a record. These issues were as follows:

i) Did the appellant make or sign a false statement in a record?

ii) If he made a false statement, did he do so knowingly?

iii) If he knowingly made a false statement, did he do it with intent to deceive?

13. The Hearing Officer reviewed the evidence regarding the six occasions set out in the particulars where the appellant recorded in the DARs that he was working but the respondent alleged that he was not. Two of these occasions should suffice to give a flavor of the appellant’s recordkeeping. The Hearing Officer wrote the following, at p. 24 of her decision:

On March 4, 2013, PC Farkas reported on DAR he worked the 0700 to 1900 hours shift and completed the duties: Shift Preparation; Shift Conclusion; Patrol; Patrol; Patrol; and, Career Development. His notes indicate he reported for duty at 0650 hour, signed out cruiser 4-427, checked emails, tasks and occurrences, left and returned to the detachment between 0745 and 1130, and 1200 and 1750 hours before booking off-duty at 1900 hours. The Niche, PCC Logon, ICON and C8 records bear no evidence of PC Farkas being on-duty. Contrary to the DAR and his notes, the duty roster indicated PC Farkas was off-duty on a CTO day.

On March 5, 2013, PC Farkas reported on DAR he worked the 0700 to 1900 hours shift and completed the duties: Shift Preparation; Shift Conclusion; Patrol; Patrol; Patrol; and, Career Development. The Niche, PCC Logon, ICON Audits, C8 Log and PC Smith’s notes bear no evidence of PC Farkas being on-duty. Farkas’ notes indicate he reported for duty at 0650 hours, read emails, tasks and occurrences; left the office between 0750 and 1405 hours and 1518 and 1810; drove unit 4-427; and, went off-duty at 1900 hours. Other than stopping at his residence for lunch, there was no other activity reported. Contrary to the DAR and his notes, the duty roster indicated PC Farkas had called in sick.

14. Sgt. Lavoie testified on behalf of the prosecution. He was placed in charge of the appellant’s shift in September 2012. Shortly afterwards, he became concerned about the Appellant’s use of sick leave as, if he exceeded the threshold, he would be placed on the respondent’s Attendance Management Program (AMP). Sgt. Lavoie reviewed the appellant’s DAR entries for March 4 and 5, 2013, among others, and determined that the appellant was not in fact at work as he had recorded.

15. Sgt. Lavoie spoke to the appellant about his DAR entries in July and August 2013. The appellant admitted to him that the DAR entries made by him were wrong, but stated that he did not make inaccurate entries intentionally, and blamed personal problems that he was experiencing for the inaccuracies. Sgt. Lavoie testified in cross-examination that he did not believe that the appellant was trying to be deceitful.

16. Based on her assessment of the oral and documentary evidence, the Hearing Officer concluded that the appellant had not worked on the six occasions he recorded in his DARs as having worked. She concluded that he was on an approved leave on four of those days and had called in sick on the other two. The Hearing Officer was satisfied that there was “clear and convincing” evidence that the DARs completed by the appellant were falsified. These six occasions were sufficient to support a finding of guilt to the charge of deceit.

17. The Hearing Officer then addressed the second set of particulars alleging that the appellant inaccurately recorded absence codes on twelve other DARs. On seven of the questionable shifts, the duty roster indicated the appellant was sick while his DAR indicated he was on a float day, a rest day or a vacation day. On the other five shifts, the duty roster showed that the appellant was on a CTO (Compensatory Time Off) day while his DARs recorded float or vacation days.

18. Ultimately, the Hearing Officer concluded as follows:

I find PC Farkas’ dishonest activity claims, such as RIDE, Radar Patrol, Directed Patrol, General Patrol, Shift Preparation, Career Development, and Shift Conclusion, on six of the eighteen DARs evidence of conscious and deliberate acts of deception. I couple this with the remaining DARs where he falsely reported time off as CTO, vacation and floaters, and find that collectively, over a nineteen month period they illustrate a pattern of behavior which points to an intent to deceive, effectively eliminating the possibility of an honest mistake.

For all these reasons, I find the evidence clear and convincing that PC Farkas intended to deceive on thirteen of the eighteen DARs.

19. The Hearing Officer had also concluded that as she could not find that the appellant derived any benefit from five of the inaccurately recorded DARs, she was “reluctant” to establish intent on the appellant’s part.

20. Before we deal with the five issues raised by the appellant, one comment should be made about the factum. After these issues were listed, there is a mélange of some thirty-nine paragraphs of conflated arguments with little or no indication which argument relates to which issue. It would be helpful if, in the future, factums were written so as to show some demarcation as to where arguments on issues begin and end. Sub-headings would be especially useful.

21. Turning to the issues raised by the appellant we would first make some general comments about the role of the Commission on appeals.

22. It is now well established that the standard of review to be applied by the Commission is reasonableness on questions of fact, correctness on questions of law and reasonableness on questions of mixed fact and law: Ottawa Police Services v. Diafwila, 2016 ONCA 627.

23. In assessing the reasonableness of a decision, the question to be addressed is “Does the decision fall within a range of possible, acceptable outcomes that are defensible in respect of the facts and law”? See Dunsmuir v. New Brunswick, 2008 SCC 9. The Court also wrote: “In judicial review, reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process”. These same principles apply to the Commission’s review of a Hearing Officer’s decision.

Issue i)

The Hearing Officer did not properly apply the legal test for a finding of guilt on the charge of deceit, and in particular incorrectly analyzed the intent component.

24. The Hearing Officer referred in her reasons to a number of decisions relied upon by the appellant in support of his position that intent to mislead was a necessary component of the charge of deceit. For example, see Precious and Hamilton Police Service, (OCCPS) May 2002 and the cases cited therein.

25. The Hearing Officer concluded that the appellant knowingly completed false DARs and that he did so with the intent to mislead. She found, at pp. 27-29 of her decision that the detail contained in the six DARs when he recorded that he was at work but in fact was off-duty pointed to a deliberate fabrication of duties performed as well as “evidence of conscious and deliberate acts of deception”.

26. An examination of the detailed events described by the appellant on shifts where it was established that he was not at work certainly supports the Hearing Officer’s conclusions.

27. D/Sgt. Watson had testified as to the importance of the DARs. They are used for payroll, serve as tracking mechanisms for contract locations and are integral to intelligence-led policing and the deployment of officers.

28. The Hearing Officer found as an indicia of the appellant’s intent to deceive the fact that he “benefited from his false reports by not reaching the attendance program as quickly and not having to reduce his vacation and CTO bank”: see p. 28.

29. Barring an outright admission, an intent to mislead can only be inferred from all of the circumstances of a particular case. Finding a motive or a potential benefit for signing a false statement is such a circumstance that can be considered, as the Hearing Officer did here.

30. The Hearing Officer’s conclusion that the appellant knowingly, and with intent to deceive, falsified thirteen of the eighteen DARs is a finding of mixed fact and law that in our view was reasonable.

Issues ii) and v)

The evidence that was presented could not reasonably support a finding of guilt on the clear “clear and convincing evidence” standard.

The Hearing Officer misapprehended the evidence by failing to identify evidentiary gaps in the prosecution’s case, which resulted in errors in her reasoning leading to incorrect conclusions that culminated in an incorrect finding of guilt on the charge of deceit.

31. These issues may be conveniently dealt with together. The Hearing Officer directed herself as to the necessity of basing a finding of guilt on clear and convincing evidence. She made findings of fact that were open to her to make and that in our view were justifiable on the evidence. We heard nothing during oral argument to warrant our now finding that her decision was not based on clear and convincing evidence.

32. The appellant submitted that there were a number of evidentiary gaps that the Hearing Officer failed to consider. These gaps included the prosecution’s failure to introduce the appellant’s full attendance records, the lack of evidence as to the training the appellant received in completing DARs, not introducing the AMP into evidence and the failure of D/Sgt. Watson, who testified as to the investigation he carried out into the appellant’s records, to review his findings with the appellant’s supervisors for verification.

33. The appellant’s submission that the AMP should have been introduced into evidence relates to what he called confusion in the evidence as to when he would have crossed the attendance threshold, which were either 6 absences or 9.2. As explained by the respondent, the 6-day threshold referred to the point where an officer would take a 25% reduction in pay if more than 6 sick days were used in a calendar year. The 9.2 days in the AMP was the point where there would be a meeting with an officer who crossed that threshold.

34. Given the appellant’s statement to D/Sgt. Watson detailed below, little turns on this difference.

Issue iii)

The Hearing Officer improperly interpreted section 83(6) of the PSA and considered and utilized the compelled statement of the appellant.

35. Section 83(6) reads as follows:

The police officer who is the subject of the hearing shall not be required to give evidence at the hearing.

36. D/Sgt. Watson conducted an investigation into the appellant’s records. On December 9, 2013, he met with the appellant in what has been called a compelled interview. Part way through his evidence in chief, the appellant’s defense counsel objected to his testifying as to what the appellant said to him in this interview.

37. This objection came after D/Sgt. Watson testified as follows:

He [the appellant] was of the understanding that if-if he had a high number of sick days, he was going to be entered into the career enhance-or the Attendance Enhancement program. He felt that would be negative, and he wanted to avoid that.

He said he wanted to avoid being placed on – into the Attendance Enhancement program

38. The basis for the objection, which the Hearing Officer did not allow, was in effect, that the protection afforded to an officer by section 83(6) would be illusory if statements given during compelled interviews could then be used at a disciplinary hearing.

39. The respondent submitted that while the appellant was ordered to attend the interview with D/Sgt. Watson he was not ordered to answer questions and did so voluntarily. During oral argument, the respondent refined this position somewhat by indicating that, while the interview may have been compelled, the appellant was not under any duress during the interview.

40. The parties indicated that they were not aware of any decision directly on point interpreting the extent of the section 83(6) protection. The respondent submitted that the Commission has previously considered compelled statements in Bargh v. Ottawa Police Service, (22 February 2011), OCPC 11-04. However, it appears that the extent of the possible reach of the section was not argued.

41. In the text Ontario Police Services Act (Saltspring Island: Earlscourt, 2017) the authors wrote the following about section 83(6) at p. 279:

First, the police officer may be required to provide a duty statement, or answer questions of a police officer superior in rank, as part of a discipline investigation, and these answers would be admissible at the hearing.

42. The authority cited for this comment is Nason v. Hamilton-Wentworth Board of Commissioners of Police (31 August 1984), (Ont. Co. Ct.) where the following statement was made:

The fact that the police officer in the course of his duty is required to make reports when requested to do so does not therefore prevent such report from being admissible in evidence in disciplinary proceedings under the Police Act.

43. However, it does not appear that section 83(6) or any similar predecessor section was in effect at the time the decision was made.

44. The appellant relied on Erskine v. Police Complaints (6 February 1998) (Board of Enquiry #PC004/97), where the following statement was made:

In the Board’s view, in the particular circumstances of this case where the officer was ordered to respond in considerable detail to numerous questions from an investigator from the Police Complaints Commission following a number of public complaints, it would appear unfair that such a response could later be used to incriminate the officer at a disciplinary hearing if he decides not to testify. Even if the officer does testify at the hearing, it would appear unfair to allow this compelled report to incriminate the officer.

45. The officer in Erskine apparently was not initially aware that he was the target of the investigation. The decision is of course not binding on the Commission.

46. In our view, on a plain reading of section 83(6), the protection afforded to an officer is from having to testify at a hearing and the protection does not extend to statements made during the course of an investigation into the officer’s conduct. If that was the intention of the section, it could have been drafted to be clear on its extent. We note that the appellant apparently, in the context of a compelled interview, did not object to answering questions from D/Sgt. Watson and in fact gave some answers that were helpful to his position, if accepted by the Hearing Officer.

Issue iv)

The Hearing Officer failed to properly assess credibility and reliability of the witnesses’ evidence and the documentary evidence represented.

47. The appellant’s position as set out in his factum is “…while counsel may challenge the credibility and reliability of witnesses whether or not that happens it does not obviate the requirement [on the Hearing Officer] to independently assess the evidence and articulate the reasoning why the evidence is being accepted, rejected and the amount of weight that will be placed on that evidence”. In particular, the appellant questions why the Hearing Officer ascribed no weight to the evidence of Sgt. Lavoie that he did not believe the appellant intentionally made the errors in the DARs.

48. A stated above, the Hearing Officer found there was “clear and convincing” evidence to support the conviction of the appellant for deceit. It was open to her to accept or reject what was the opinion of Sgt. Lavoie. There was in our view sufficient evidence available to her to support her conclusions.

ORDER

49. Pursuant to section 87(8) of the PSA the Commission confirms the decision of the Hearing Officer finding the appellant guilty of deceit under section 2(1)(d)(1) of the Code.

DATED at Toronto, this 17th day of August 2017.

D. Stephen Jovanovic

Associate Chair

John Kromkamp

Member

Karen Restoule

Member