ONTARIO CIVILIAN POLICE COMMISSION

Safety, Licensing Appeals and Standards Tribunals Ontario

COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Citation: Khan v. York Regional Police Service, 2018 ONCPC 14

Date: November 13, 2018

Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended

Between:

Constable Noor Khan

Appellant

and

York Regional Police Service

Respondent

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair Dawn Kershaw, Vice-Chair Robert Prior, Member

Appearances:

Cst. Noor Khan, self-represented, appellant Jason Fraser, counsel for the respondent

Place and date of hearing:

Toronto, Ontario June 28, 2018

Introduction

1By way of a decision by Superintendent Graeme Turl, (the Hearing Officer), the appellant was found guilty of four charges under the Police Services Act (the PSA) all of which arose from an encounter with R.C. in the City of Vaughan on January 27, 2011. These charges were set out in the Notice of Hearing as follows:

1. Discreditable Conduct in that on January 27, 2011, contrary to the Police Services Act, Ontario Regulation 268/10 Section 2(1)(a)(xi) acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force, in relation to his conduct towards [R.C.];

2. Deceit in that on January 27, 2011, contrary to the Police Services Act, Ontario Regulation 268/10 Section 2(1)(d)(i) knowingly makes or signs a false statement in a record, in relation to his notes concerning [R.C.];

3. Insubordination in that on January 27, 2011, contrary to the Police Services Act, Ontario Regulation 268/10 Section 2(1)(b)(ii) without lawful excuse, disobeys, omits or neglects to carry out any lawful order, by conducting the search in such a manner as to allow the subject as much dignity as possible, not in accordance with York Regional Police Procedure LE-012, Search of Prisoners;

4. Insubordination in that on January 27, 2011, contrary to the Police Services Act, Ontario Regulation 268/10 Section 2(1)(b)(ii) without lawful excuse disobeys, omits or neglects to carry out any lawful order; searches shall be conducted by a member of the same gender as the person being searched unless exigent circumstances make it impractical to arrange for a member of the same gender to conduct the search in accordance with York Regional Police Procedure LE-012, Search of Persons.

2The Hearing Officer in a decision dated September 30, 2013 ordered that the appellant had seven days to resign or be terminated from any or all employment with the respondent.

3The appellant has appealed to the Commission both from his four convictions and from the penalty imposed by the Hearing Officer.

Disposition

4For the reasons that follow, the appeals from the convictions and the penalty are dismissed.

Background

5On the evening of January 26, 2011, R.C. purchased .5 grams of cocaine for $40.00 at an address in Vaughan. A short time later she was arrested by plainclothes York Regional officers at a nearby shopping plaza for possession of the cocaine. The appellant was called to the scene of the arrest to transport R.C. to the #4 District station. After placing her in the backseat of his vehicle, the appellant, while still in the plaza, opened the rear door of his vehicle and allegedly conducted two pat down searches of R.C., touching her chest, arms and legs.

6The appellant testified and agreed that he did open the rear door of his vehicle and twice went to the backseat to speak to R.C. because she was complaining that the handcuffs were too tight. On the second occasion he checked the tightness of the handcuffs by using what he described as the “pinky” test, placing his little finger between her wrist and the handcuffs.

7On the way to the #4 District station the appellant stopped and again opened the back door of his vehicle. He testified that he did so because R.C. was becoming very loud, rude and once more complaining about the tightness of the handcuffs. The appellant maintained that he had no physical contact with R.C. during this third interaction and just talked to her in an attempt to stop her from complaining.

8According to R.C., during this third stop the appellant patted down her legs then pulled out her black top and looked at her breasts for a couple of seconds. Once she arrived at the #4 District station, she was turned over to Cst. Venetia Flint for a search. According to Cst. Flint, R.C. asked if it was normal to be searched four times. Cst. Flint asked her what she meant by being searched four times. R.C. stated that she was originally searched by the detectives during her arrest and then three times by the officer who drove her to the #4 District station.

9Cst. Flint reported this conversation to S/Sgt. Auld who asked her to write down the details of the conversation in her notebook. A short time later Cst. Flint observed the appellant exit S/Sgt. Auld’s office, walk over to the front desk area, make comments about R.C. and call her a “fucking bitch” in a loud voice. Cst. Levangie was in the area of the front desk at that time and testified that the appellant used the words “stupid bitch.” The appellant denied making either comment when he gave evidence before the Hearing Officer.

10The Hearing Officer heard evidence from R.C., eight York Regional officers and the appellant. He rejected much of the evidence of the appellant and accepted the evidence of R.C. and the other officers as will be discussed below.

11The appellant was also charged with sexual assault under the Criminal Code and atypically, the PSA hearing proceeded before the trial on that charge. He was convicted of sexual assault on R.C. on December 16, 2013 and sentenced to 45 days in jail on October 10, 2014. However, his appeal was allowed and a new trial ordered by Justice Vallee of the Superior Court of Justice. On February 13, 2017 a five judge panel of the Court of Appeal allowed the Crown’s appeal and restored the conviction. The appellant’s application for leave to appeal to the Supreme Court of Canada was dismissed on August 3, 2017. His appeal of the 45 day jail sentence was dismissed by Justice Vallee on April 19, 2018 at which time he was incarcerated, more than seven years after the incident.

Issues

12The appellant was self-represented before us and delivered a factum setting out various arguments. The issues that we are able to discern from that factum and the appellant’s oral submissions are as follows:

1. The Hearing Officer failed to properly assess credibility especially that of R.C. who may have ingested .2 grams of cocaine before her arrest.

2. The Hearing Officer and the trial judge on the sexual assault trial were biased.

3. The appellant was compelled to use inexperienced counsel because of the refusal by the Hearing Officer to grant him an adjournment.

4. The penalty was unfit and inconsistent with penalties in other cases involving the respondent’s officers.

13The appellant acknowledged that with his criminal conviction, which he still does not accept, he cannot serve as a police officer and requests that we order his return to employment with the respondent in an administrative position.

14The respondent submits that we must give full effect to the criminal conviction and that the penalty of dismissal was manifestly reasonable.

Analysis

15The standard of review applied by the Commission to a decision of a Hearing Officer is reasonableness on questions of fact and correctness on questions of law: Ottawa Police Services v. Diafwila, 2016 ONCA 627. Questions as to whether the facts satisfy a legal test are questions of mixed fact and law are also to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Dunsmuir v. New Brunswick, 2008 SCC 190.

16In assessing the reasonableness of a decision, the question to be asked is whether there is “justification, transparency, and intelligibility with the decision-making process” and whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” See Dunsmuir at paragraph 47. Findings of fact and credibility by a Hearing Officer are owed particular deference by the Commission: Paige v. Hanover Police Service, 2017 CanLII 36559 (ONCPC).

17In our view, it would be appropriate to deal first with the respondent’s argument that the appellant’s criminal conviction now forecloses him from any attempt to set aside his PSA convictions. This argument is based on the Supreme Court of Canada decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.

18Briefly, in that case, an employee of the city was convicted of sexually assaulting a minor and then had his employment terminated. The employee grieved the termination which was then set aside following an arbitration. The arbitrator held that the presumption raised by the criminal conviction had been rebutted and that the employee had been dismissed without just cause. The court set aside the arbitrator’s decision concluding that it would be an abuse of process to allow the employee to, in effect relitigate his conviction.

19The following two paragraphs from the decision are particularly instructive:

51. [The] doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

52. In addition, the arbitrator is considerably less well equipped than a judge presiding over a criminal court or the jury, guided by rules of evidence that are sensitive to a fair search for the truth, an exacting standard of proof and expertise with the very questions in issue, to come to a correct disposition of the matter. Yet the arbitrator’s conclusions, if challenged, may give rise to a less searching standard of review than that of the criminal court judge. In short, there is nothing in a case like the present one that militates against the application of the doctrine of abuse of process to bar relitigation of the grievor’s criminal conviction. The arbitrator was required as a matter of law to give full effect to the conviction. As a result of that error of law, the arbitrator reached a patently unreasonable conclusion. Properly understood in light of the correct legal principles, the evidence before the arbitrator could only lead him to conclude that the City of Toronto had established just cause for Oliver’s dismissal.

20The important difference between the C.U.P.E. decision and this matter, however, is that C.U.P.E. and the cases that followed it, involved an attempt to relitigate a criminal conviction in a subsequent civil proceeding. The importance of this difference is underscored by the question asked of the respondent by the panel during oral argument. The question was to the effect of how would C.U.P.E. apply in this matter if we were to find that the appellant was denied procedural fairness or that the decision of the Hearing Officer was littered with legal errors. If that were the situation, what rights, if any, would the appellant have before the Commission? If we were to order a new hearing based on errors by the Hearing Officer, would such an order be moot because at a new hearing the respondent would rely on the conviction and the C.U.P.E. decision?

21Typically, hearings of misconduct charges under the PSA are deferred until the outcome of any criminal charges as a criminal conviction would normally seal the fate of the officer on the PSA misconduct charge. This reality was recognized by counsel for the appellant on a motion heard by the Commission where he successfully argued for an adjournment of the appeal before the Commission on the basis that it should await the result of the criminal case. Paragraph 20 of the Commission’s decision dated May 2, 2014 granting the request for an adjournment was as follows:

Mr. Butt [then counsel for the appellant] also argued that the Commission should hold the appeal in abeyance because there is a realistic possibility that this appeal may become unnecessary. If Const. Khan’s appeals against his criminal conviction and penalty should fail, an appeal to the Commission would not be warranted as he would stand no chance of retaining his employment with the York Regional Police Service as a convicted sexual predator. Therefore, the Commission should wait and see whether an appeal can serve any useful purpose before incurring the public expense of convening an appeal.

22The appellant is in fact now convicted of sexual assault and all of his appeal avenues have been exhausted. However, while the abuse of doctrine as enunciated by the Supreme Court of Canada might very well apply in these circumstances, in our view, it would be preferable to decide the appeal on the issues raised by the appellant.

The Hearing Officer failed to properly assess credibility especially that of R.C. who may have ingested .2 grams of cocaine before her arrest.

23This was a case where the outcome depended to a large extent on credibility findings, principally as to the evidence of R.C. and the appellant. The Hearing Officer reviewed the defence submissions as to the memory lapses and the inconsistencies in the evidence of R.C. He also reviewed the defence theory that R.C. was somehow out to take advantage of the appellant as she recognized that he was a rookie officer.

24The Hearing Officer wrote that R.C. had difficulty at times articulating her responses to questions; became emotional during the hearing crying on several occasions and; gave evidence that was inconsistent in some respects to what was contained in her previous statements. He considered the inconsistencies to be largely irrelevant. He further noted that she stated several times that “she did not want to get anyone in trouble” and did not want to be involved in the hearing.

25He wrote the following about the third search of R.C. by the appellant:

It is this search that is at the crux of the matter and in my view became significantly more intrusive towards [R.C.]. I do accept the fact that Constable Khan did a short cursory search and then for some inexplicable reason chose to open [R.C.’s] shirt and look down her shirt at her breast area with his flashlight. This intrusive physical search by a male officer at the side of the road, at night, without any witness present was completely unnecessary and against all written procedure when dealing with a member of the opposite sex.

26In R. v. Gagnon, 2006 SCC 17, the Supreme Court of Canada made the following comments about credibility assessments:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why the court decided, most recently in L.(H)., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

27We see no palpable and overriding error in the Hearing Officer’s finding that the appellant did pull back R.C.’s top and looked at her breast area.

28Regarding the appellant’s comments overheard by Csts. Flint and Levangie, the Hearing Officer discounted completely the appellant’s suggestions that they were somehow out to get him for some unresolved dispute. There was a slight difference as to what each of the officers heard the appellant say in the public area of the station. The Hearing Officer accepted their evidence that the appellant used the word bitch in describing R.C. We see no reason to interfere with that finding.

The Hearing Officer and the trial judge on the sexual assault trial were biased.

29The appellant submitted that throughout his career with the respondent he had been the victim of institutional racism and discrimination. He submitted that the Hearing Officer, being a member of that institutional setting, was biased against him. After reviewing the record, we see no basis for the submission that the Hearing Officer was biased.

30As we explained to the appellant during his submissions, the Commission is not the forum to allege bias on the part of the trial judge. It is worth noting, however, that the appellant had the benefit of having the criminal proceeding considered by four levels of courts, including the Supreme Court of Canada. He was represented by experienced counsel throughout. No suggestion of bias on the part of the trial judge was ever raised.

The appellant was compelled to use inexperienced counsel because of the refusal by the Hearing Officer to grant the appellant an adjournment.

31On December 12, 2012, the PSA hearing was scheduled to begin on April 2, 2013. On February 25, 2013 a motion was filed on behalf of the appellant requesting an adjournment of the hearing on the grounds that the Crown Attorney should have requested a stay of the PSA proceeding pursuant to section 83(15) of the PSA. The motion was dismissed and the hearing proceeded as scheduled.

The appellant did not argue that he required the adjournment because of the unavailability of his counsel. Accordingly, this ground of appeal fails.

The penalty was unfit and inconsistent with penalties in other cases involving the respondent’s officers

32Notwithstanding the criminal conviction, the appellant is allowed to appeal the penalty imposed by the Hearing Officer. The prosecution sought the dismissal of the appellant while the defence submitted to the Hearing Officer that the forfeiture of 40 hours with extra training would be the appropriate penalty.

33The Hearing Officer reviewed the following 13 factors typically taken into account in determining a penalty.

1. Public interest.

2. Seriousness of the misconduct.

3. Recognition of the seriousness of the misconduct.

4. Employment history.

5. Need for deterrence.

6. Ability to reform or rehabilitate the police officer.

7. Damage to the reputation of the police service.

8. Handicap and other relevant personal circumstances.

9. Effect on the police officer and the police officer’s family.

10. Management approach to misconduct in question.

11. Consistency of disposition.

12. Financial loss resulting from unpaid interim administrative suspension.

13. Effect of publicity.

34The role of the Commission in penalty appeals was confirmed by the Divisional Court in Karklins v. Toronto (City) Police Service, [2010] ONSC 747 where the court adopted the following statement:

The role of the Commission in a penalty appeal is well established. Our function is not to second guess the Hearing Officer or substitute our opinion. Rather, it is to assess whether or not the Hearing Officer fairly and impartially applied the relevant dispositional principles to the case. We can only vary a penalty where there is a clear error in principle or relevant material facts are not considered. This is something not done lightly.

35In Kobayashi and Waterloo Regional Police Service, 2015 ONCPC 12 the Commission summarized its function on a penalty appeal where it wrote the following:

[T]he Commission is not permitted to reweigh the disposition factors to come to a conclusion on penalty which it believes is more appropriate.

Unless there has been an error in principle or relevant factors have been ignored, the Commission cannot interfere with a decision on penalty even if it might have come to a different conclusion.

36Ultimately, the question to be decided is whether the penalty imposed was reasonable.

37We have reviewed the Hearing Officer’s assessment of the dispositional factors and can see no errors in principle. There were few mitigating factors. In our view, the Hearing Officer’s assessment of the public interest; seriousness of the misconduct; recognition of the seriousness of the misconduct; need for deterrence; ability to reform or rehabilitate; damage to the reputation of the police force and effect of publicity was sufficient to warrant the appellant’s dismissal.

38The Commission has previously decided “one-off” acts of deceit or discreditable conduct can justify the dismissal of an officer: see Nesbeth and Windsor Police Service, 2015 ONCPC 23 and the cases cited therein. This matter falls within that category of cases.

39To conclude, in this matter the penalty imposed by the Hearing Officer was reasonable.

ORDER

40Pursuant to section 87(8) of the PSA, the Commission confirms the findings of guilt by the Hearing Officer on the four charges of misconduct and confirms the penalty imposed.