Cst. Ioan Floria v. Toronto Police Service, 2020 ONCPC 6

ONTARIO CIVILIAN POLICE COMMISSION

Safety, Licensing Appeals and Standards Division

COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE

Division de la sécurité, des appels en matière de permis et des normes

Citation: Cst.Ioan Floria v. Toronto Police Service, 2020 ONCPC 6

Date: 08-17-2020

File: 18-ADJ-006

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

Between:

Cst. Ioan Floria

Appellant

And

Toronto Police Service

Respondent

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair

Maureen Helt, Vice-Chair

Laura Hodgson, Vice-Chair

Appearances:

Lawrence Gridin and Alex Alton, counsel for the appellant

Alexandra Ciobotaru, counsel for the respondent

Place and date of hearing:

Toronto, Ontario

February 12, 2020

INTRODUCTION

1This is an appeal by the appellant from the decision of Superintendent Debra Preston (the Hearing Officer) dated April 10, 2017 by which she found him guilty of four counts of Misconduct contrary to the Code of Conduct, O.Reg. 268/10 enacted pursuant to the Police Services Act (the PSA). The appellant also appeals from the Hearing Officer’s decision of June 4, 2018 where she ordered his immediate dismissal from the respondent on three of the charges and a suspension without pay for a period not exceeding 30 days or 240 hours on the fourth charge. There is no appeal from the finding of guilt on the charge of insubordination and the resulting suspension.

DISPOSITION

2For the reasons that follow, the decisions of the Hearing Officer are confirmed and the appeals as to the findings of guilt and penalty are dismissed.

OVERVIEW

3A summary of the allegations against the appellant as set out in the Notice of Hearing are as follows:

1. Discreditable Conduct

Being a member of the Toronto Police Service, attached to Traffic Services, on Friday, November 18, 2005, you met with S.T., who reported to you that he was a victim of a kidnapping and torture. S.T. had obvious signs of trauma.

You failed to report this criminal act and suppressed information by directing S.T. to do the following:

i. Do not report the kidnapping and torture to the police, as you were going to personally investigate the occurrence.

ii. Do not seek medical attention, as medical authorities would be required to notify police, given the extent of the injuries sustained by S.T.

iii. If medical attention was required by S.T., S.T. was to advise the medical staff that the injuries were due to a skiing accident.

In doing so, you have committed misconduct in that you did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Toronto Police Service.

2. Insubordination

Being a member of the Toronto Police Service, between Saturday, May 27, 2000 to Tuesday, January 17, 2006, you conducted seventy (70) CPIC enquiries as listed: [list omitted]

Investigation revealed that you conducted these CPIC enquiries, not for official police business.

In doing so, you have committed misconduct in that you did without lawful excuse, disobey, omit or neglect to carry out any lawful order.

3. Breach of Confidence

Being a member of the Toronto Police Service, attached to traffic Services, during the time period of Sunday, November 20, 2005 to Saturday, November 26, 2005, you met with G.T., (the brother of S.T., the victim of the kidnapping and torture).

You received a licence plate for a suspect vehicle, involved in a criminal act.

Investigation revealed that you conducted a CPIC query on this licence plate and disclosed the results of the query to G.T.

In doing so, you have committed misconduct in that you did divulge any matter which it was your duty to keep secret.

4. Discreditable Conduct

Being a member of the Toronto Police Service, attached to Traffic Services, on Friday, December 23, 2005, you were on duty.

On this date, A.A. provided you information regarding the kidnapping of S.S. and M.I.

You failed to report this criminal act and you suppressed information that would have prevented the ongoing forcible confinement, torture and sexual assault of S.S. and M.I.

In doing so, you committed misconduct in that you did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Toronto Police Service.

BACKGROUND

4In June 2007 the appellant was charged with a number of offences under the Criminal Code arising from the above events but was acquitted of all charges in June 2012 following a jury trial. As is typically the case, the PSA prosecution was deferred pending the appellant’s trial and then resumed in July 2013. The hearing was delayed as issues arose regarding disclosure and witnesses. There was a change of counsel for the appellant and a new prosecutor had to be appointed. An abuse of process motion was brought by the appellant and dismissed. The Hearing Officer had to deal with a motion by the prosecution to allow a witness to testify by way of video conferencing. The hearing was eventually completed in November 2016. The appellant did not testify at the hearing, as was his right, so transcripts of his evidence given during the jury trial were admitted.

5The principal witness against the appellant on the first count of discreditable conduct was S.T. who since 2004 was an acquaintance of the appellant and his brother, G.T. S.T. was also tending a marijuana grow-op for a Mr. Vornicu while setting up a second one. On November 16, 2005 S.T. was allegedly kidnapped from a gym parking lot, beaten, tortured and threatened by the kidnappers over the following two days then released when Mr. Vornicu paid a ransom. S.T. was told by one of the kidnappers that he would be killed if he reported the matter to the police.

6S.T. called the appellant and met with him the day he was released or the following day and relayed to him what had happened during the kidnapping. A Mr. Ionas accompanied the appellant to this meeting which lasted between 15 and 20 minutes, according to S.T. The appellant allegedly told S.T. not to go to the police, stay away from the hospital or if he had to get medical attention to tell the doctor that he was injured as a result of a skiing accident. The appellant also allegedly told S.T. that he would himself investigate the kidnapping.

7The extent of S.T.’s injuries visible to the appellant was in dispute as were other details of this first meeting. However, in a statement given by the appellant on May 21, 2007 during an investigation of the appellant’s actions by the respondent, the appellant stated the following:

The victim [S.T.] had some facial injuries and appeared scared and very emotional as he described briefly what happened to him. I was overwhelmed. I could not believe my ears. I did not know what to think. I was shocked.

I told him to call police and tell what happened. He categorically said “NO” because he was afraid for his and his brother’s life. He advised that he was threatened with death if he reported the occurrence to police. He did not know who these people were just that they spoke English with a Russian accent and that one of the persons was Romanian.

I indicated to him that he put me in a very bad position. He acknowledged and said that he was “very sorry” but that I was the only person he felt safe around.

The victim was afraid that this was orchestrated by someone close to them. He kept saying that he can’t trust anyone and that he was very afraid.

The victim [S.T.] advised that the occurrence happened in a parking lot at a Premiere GYM in Scarborough.

At the time I felt sorry for him and was curious to see what really happened. I decided to try to help in bringing some light to this case. I knew all about the video surveillance equipment and the Bulgarian security guard that monitored them. We looked at the recorded video and saw the victim leave the GYM and go to a minivan and leave with it. The minivan appeared to have waited for the victim. It changed parking spots from near the store front to the center of the parking lot. No indication of fighting or struggle. The plate could not be focused on (only live) thus no plate info obtained.

At the beginning, I seemed to believe everything the victim described. After looking at the video tapes and speaking with his brother [G.T.] I wasn’t quite sure what really happened.

In the case he was telling the truth and he did not fabricate this occurrence, reporting this by me could have endangered the victim’s life and mine. I was concerned for my family’s safety both here and in Europe. I did not know who I was up against, I just knew if the victim told the truth, these people were very dangerous and they might know of me but I did not know of them [Emphasis added].

8The appellant met with S.T. and Mr. Ionas, two days after the first meeting, at the gym where the kidnapping took place and that was the occasion the appellant viewed the surveillance videotape. The appellant also attended a gas station at York Mills and Yonge Street to view security video as this was the location where the ransom may have been paid. S.T. testified that he met with the appellant on at least two further occasions. The third meeting took place at another gas station with G.T. and the appellant. There was a discussion about a licence plate for a pick-up truck that may somehow have been involved in the kidnapping. A fourth meeting supposedly took place between S.T. and the appellant in December 2005 after which S.T. left for Romania and did not see the appellant again.

9In finding the appellant guilty on the first count of Discreditable Conduct, the Hearing Officer wrote the following at page 95 of the decision:

Constable Floria had an obligation and a duty to report a crime that was reported to him and to assist S.T. as a victim of a crime. As noted, the kidnappers remain at large which is a significant public safety concern. The fact that he failed to report the crime and failed to fulfil his duty an obligation as a police officer is a matter likely to bring discredit on the reputation of the Service as any ordinary and prudent person would expect a police officer to respond according to his or her training and the information provided. The public expects and deserves a responsive police organization, no matter the background of the individual reporting a crime. It was not Constable Floria’s responsibility to determine the outcome of this case based on his beliefs that the incident did not occur without the benefit of a thorough investigation by an experienced investigator. The public deserves no less. I find, based on clear and convincing evidence, that Constable Floria is guilty of the offence of discreditable [conduct].

10The finding of guilt for Insubordination has not been appealed. Suffice it to say that the Hearing Officer did not accept the explanation provided by the appellant for the 70 Canadian Police Information Centre (CPIC) searches he did.

11The Breach of Confidence charge related to a CPIC search performed on a licence plate attached to a vehicle owned by G.P. using the badge number of a Constable Cass on December 5, 2005 at 12:39 hours. The appellant’s shift in Traffic Services began at 13:00 hours on December 5, 2005. The allegation against him was that he used the computer and badge number of Constable Cass without his knowledge to perform the search then gave the information to G.T.

12The Hearing Officer acknowledged that the evidence on this count was largely circumstantial but also found some direct evidence. She nevertheless found the appellant guilty, writing the following at pages 108-111 of her decision:

Constable Floria had the opportunity and the means to run the licence plate as both Constable Floria and Constable Cass worked at Traffic Services. In the criminal trial, Constable Floria testified that he was aware of two computer terminals in the traffic building where a member could access CPIC. One terminal was in the report room and another was in the Investigative Unit near the detective Sergeant’s office (Exhibit 11). Constable Floria was familiar with the investigative area of Traffic Services as he finished a nine-month assignment in that area and it would not have been unusual to see him in this area. The check was run at 1239 hours on December 7, 2005 and Constable Floria was due to start his shift at 1300 hours. That period of time was sufficient to run the plate, get changed and arrive on parade on time. In my experience, most officers are in the police building prior to their shift, whether they are changing, attending to work, reviewing email or waiting for their shift to start. There was no evidence presented that Constable Floria was late for work that day. Constable Floria’s memo book (Exhibit 76) noted that he commenced his duties at 1300 hours that day, which would place him in the building prior to 1300 hours. Additionally, this check was done during the same time frame that Constable Floria was meeting with G.T and S.T. about the kidnapping, which is consistent with the fact that Constable Floria was the only plausible person involved in the nexus of events that took place.

During his testimony at the criminal trial, Constable Floria denied telling G.T. that he would check a licence plate under a colleague’s name. He denied receiving a licence plate number from G.T. or giving the registered owner’s address to G.T. (Exhibit 73). I must question what motive G.T. would have to create this entire scenario. G.T. clearly described the events outlined and he had nothing to be gained. I have found that Constable Floria was involved in a covert investigation of the kidnapping of S.T. and running licence believed to be associated to the kidnapping is a likely extension of this investigation. Constable Floria had various degrees of relationships or knowledge of Mr. Vornicu, S.T. and G.T. where Constable Cass did not. Constable Cass had no affiliation with the flow of events or the players involved. G.T. took the specific action of attending the registered owner’s address because of the CPIC return that was verbally given to him. His testimony has a high degree of consistency when compared to any other scenario.

………Each piece of evidence on its own may not mean anything or raise the bar to the required burden of proof, but the constellation of the evidence in its totality leads me to find that, I can find no other way for this CPIC query to have been made. As noted in Bent, the only rational inference that can be drawn from the evidence is that Constable Floria ran the licence plate on CPIC and gave the results to G.T. I find, based on clear and convincing evidence, that Constable Floria received a licence plate from G.T. for a possible suspect vehicle, he conducted a CPIC query on this licence plate and he verbally disclosed the results to G.T., thereby committing misconduct in that he did divulge a matter which was his duty to keep secret.

13The second Discreditable Conduct charge against the appellant arose from a phone call he received from an acquaintance named Mr. Alexander early in the morning of December 23, 2005. Mr. Alexander was cognitively disabled by the time of the PSA hearing and had no memory of the call so his evidence, on consent, was put in through an agreed statement of his evidence. The statement provided that he had received a call from “Ana” at about 3:00 a.m. on the 23rd who told him that there had been a fight at a bar and that her two friends, S.S. and M.I. were beaten up, then put in a car and taken away by “Bebe”. “Ana” could not contact her friend. Mr. Alexander relayed this information to the appellant who was on duty at about 6:40 a.m. that morning but did not use the word “kidnapped” to describe what had happened. The appellant told Mr. Alexander that he should call the police at 31 Division or have “Ana” make the call or submit a missing person report.

14On December 24th, the appellant was asked to attend 31 Division to translate a text message in Romanian found on a cell phone during the investigation of a kidnapping. The appellant realized that this kidnapping was related to the events described by Mr. Alexander and relayed these to Detective Ross who was investigating the kidnapping.

15The details of what the appellant knew about these events was set out in his memo book and the transcript of his cross-examination at the criminal trial. The appellant wrote the following:

While translating the text I recognized that this occurrence was an incident that an acquaintance called me about yesterday. His first name is Mihai. I don’t know his last and he told me that some gypsy guys got into a fight at Papino. I couldn’t talk to him too much because the signal became bad but I recognized what he was talking about because on 05/12/23 at 6:20 another acquaintance/friend who was from the same city…Alexander Armand “Alex” called me the same day 05/12/23 at 6:20. He didn’t leave a message. I called him back and he told me that he was at this place “Papino” (Finch Avenue an Arrow Road) and after he left a fight broke out in the restaurant. There was some damage to the restaurant and some gypsy guys, one of them being a guy called “Sabie” beat up or fought with a guy and his girlfriend and that they all left in the same car and she is not answering her phone. Alex and his girlfriend are concerned about them. I asked Alex if anyone called police or if the bar owner called police. Alex said he didn’t know.

16The Hearing Officer noted that the male and the female victims involved in the fight and kidnapping were released about 36 hours after the appellant received the “initial report”, both were badly beaten and the female reported that she had been sexually assaulted. The Hearing Officer criticized the appellant for his inaction writing “Had Constable Floria acted expeditiously on the information he received from Mr. Alexander, he would have significantly mitigated and certainly hindered or impeded the opportunity for the sexual assault of S.S., and the torture of S.S. and M.I. to have continued.”

17The Hearing Officer summarized her conclusion about the appellant’s actions involving this incident at page 121 of her decision where she wrote:

The public would be appalled to realize that an experienced police officer failed to properly assess information he was provided and made decisions that were inaccurate and contributed to the ongoing forcible confinement, sexual assault and torture of members of the community. The community must know that their safety is paramount to this organization and no matter who presents material information about a crime, that their information will be taken seriously and acted upon expeditiously. For all the reasons cited above, I find, based on clear and convincing evidence, that Constable Floria failed in his duty as a police officer and has caused discredit to the organization in the eyes of the victims, and any member of the public who would more than likely be appalled by the outcome of this event. In doing so, he has committed the offence of discreditable conduct.

18We shall now deal with the issues raised by the appellant.

ISSUES

I) The Standard of Review

19The standard of review traditionally applied by the Commission hearing an appeal from a hearing officer has been reasonableness on questions of fact and correctness on questions of law: Ottawa Police Service v. Diafwila, 2016 ONCA 627. Questions as to whether facts satisfy a legal test are questions of mixed fact and law were also to be reviewed on the standard of reasonableness unless there was an extricable question of law involved: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 53.

20The parties disagree on the impact of the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 on the foregoing standards of review. The appellant submits that Vavilov now requires the Commission to apply the usual appellate standard of review set out in Housen v. Nikolaisen, 2002 SCC 33 to questions of fact i.e. palpable and overriding error. The respondent submits that while Vavilov may have changed the law with respect to standard of review, it did so only in cases where a decision of an administrative body has been appealed to a court.

21The following two quotations from Vavilov would appear to support the respondent’s position:

33This Court has described respect for legislative intent as the “polar star” of judicial review: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 149. This description remains apt. The presumption of reasonableness review discussed above is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts. It follows that this presumption will be rebutted where a legislature has indicated that a different standard should apply. The legislature can do so in wo ways. First, it may explicitly prescribe through statute what standard courts should apply when reviewing decisions of a particular administrative decision maker. Second, it may direct that derogation from the presumption of reasonableness is appropriate by providing for a statutory appeal mechanism from an administrative decision maker to a court, thereby signaling the application of appellate standards.

37It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law , including questions of statutory interpretation and those concerning the scope of an administrative decisions maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras.10, 19 and 26-27. Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute.

22Similar comments can be found elsewhere in the decision. We accept that the Court in Vavilov did not address the situation of an appeal from one administrative tribunal, such as a hearing officer, to another administrative tribunal, such as the Commission. However, in our view, even if we were to apply palpable and overriding error as the standard of review, our decision in this appeal would not change.

23“Palpable” error was described by the Court in Housen an error “clear to the mind or plain to see”. In Waxman v. Waxman, 2004 CanLII 39040 (ONCA) at para. 297 the Court of Appeal defined an “overriding error” as follows:

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The applicant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254 at 281

24There must also be a connection between the palpable and overriding error and the result of a matter. As Stratas J.A. wrote in Canada v. South Yukon Forest Corporation, 2012 FCA 165 at para. 46:

Palpable and overriding error is a highly deferential standard of review…”Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.

25We’ll return to addressing the standard of review further later in these reasons.

II) Did the Hearing Officer Err in Failing to Stay the Proceedings for Delay?

26The appellant submitted that the Hearing Officer misstated the test for an abuse of process application as set out in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44. He further submitted that the test for an abuse of process is a question of law that must be reviewed on the standard of correctness.

27The Court in Blencoe emphasized the need for evidence of real and significant prejudice to the fairness of the hearing or significant psychological or reputational harm before undue delay can be successfully used to support an abuse of process argument. The Court also described when a delay may become inordinate writing the following:

102 There is no doubt that the principles of natural justice and the duty of fairness are part of every administrative proceeding. Where delay impairs a party’s ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy…It is thus accepted that the principles of natural justice and duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied…

115 I am prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances where the fairness of the hearing has not been compromised. Where inordinate delay has directly cause significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. The difficult question before us is in deciding what is an “unacceptable delay” that amounts to an abuse of process.

122 The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in an attempt to determine whether the community’s sense of fairness would be offended by the delay.

28The appellant submitted that the Hearing Officer applied a three-part test for assessing delay that was taken from the dissenting opinion in Blencoe. He submitted that the incorrect test was as follows:

• The time taken compared to the inherent time requirements of the matter before the particular administrative body;

• The causes of the delay beyond the inherent time requirements of the matter; and,

• The impact of the delay.

29The correct test to be applied according to the appellant is the following:

• Has there been inordinate or unreasonable delay? Consider the following factors.

i. Nature of the case and its complexity;

ii. The facts and issues;

iii. The purpose and nature of the proceedings;

iv. Defence delay/waiver;

v. Other circumstances of the case.

• If the delay is inordinate,

i. Did the inordinate delay impair the applicant’s ability to defend the claim; or,

ii. Did the inordinate delay result in significant prejudice to the applicant.

30In our view, on a fair reading of the entirety of the reasons of the Hearing Officer, we are not satisfied that she misapplied the test from Blencoe or that the appellant has met the “heavy burden” placed on him before a stay of proceedings should be granted.

31The Hearing Officer reviewed the history of the proceeding in detail and its complexity. She reviewed the cases presented by the prosecution and the defence; considered the appellant’s affidavit where he described the embarrassment, stress and financial hardship the proceeding caused him; analyzed the reasons for the delays in the proceeding; acknowledged that there were “dormant” periods in the prosecution and; concluded that the appellant was “sufficiently conversant” with the evidence to be able to proceed with the hearing. She did not find that the delays amounted to an abuse of process.

32The three charges that are the subjects of this appeal arose from events that happened in November and December 2005. The criminal charges against the appellant were filed in July 2007 with the Notice of Hearing then served on the appellant In November 2007. The acquittal on the criminal charges occurred in June 2012 and the first appearance before the Hearing Officer thereafter was one year later. A new prosecutor was appointed and there was a change in defence counsel as a result of a change in position by the prosecution as to the calling of a witness.

33The Hearing Officer considered that the time period relevant to the abuse of process motion began when the appellant was acquitted. In our view that would be the correct starting point as rarely do PSA hearings proceed while criminal charges are proceeding against a police officer. The criminal proceeding was itself complex with two Court of Appeal hearings before the trial began. The prosecution could not be solely faulted for that almost five year delay leading up to the acquittal of the appellant. The Hearing Officer’s analysis encompassed the key factors required by Blencoe to determine if an abuse of process existed. When reading her decision as a whole, we see no error in her having done so.

34Accordingly, we dismiss this ground of appeal.

III) Did the Hearing Officer Lack Jurisdiction to Admit Video Link Evidence?

35S.T. and G.T. testified for the prosecution in the appellant’s criminal trial. Both received one-time emergency relocation assistance to move out of Canada as a result of concerns over their safety. S.T. was served with a summons to appear at the PSA hearing but gave various reasons why he did not wish to attend. The appellant submits that S.T. did not actually refuse to attend but rather stated that he did not want to attend because he did not feel “comfortable” in doing so. The prosecutor brought a motion before the Hearing Officer for an order allowing both S.T. and G.T to give their evidence by way of video link. The Hearing Officer granted the requested order.

36The appellant submitted that the Hearing Officer did not have the “jurisdiction” to grant the order and doing so was in contravention of s. 5.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA) which reads as follows:

5.2(1) A tribunal whose rules made under section 25.1 deal with electronic hearings may hold an electronic hearing in a proceeding.

37The Toronto Police Service Tribunal (TPST) did not have rules dealing with taking evidence byway of video conferencing until March 1, 2015. Although procedural rules generally take immediate effect and apply retrospectively to existing proceedings (see Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2014 ONCA 89) the Hearing Office decided that on the proceeding before her the TPST rules did not apply retrospectively. The respondent did not argue otherwise in this appeal.

38The Hearing Officer did decide that s. 2 and s. 15 of the SPPA gave her the authority to order the taking of evidence by video. These sections read as follows:

2. This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

3. Subject to sections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

39The Hearing Officer also considered whether there would be significant prejudice to the appellant to the point that procedural fairness or natural justice would be compromised if the order were granted. The Hearing Officer decided that given safety concerns, the location of S.T. and G.T. out of the country and therefore not compellable to appear, and that they could be cross-examined, their evidence should be heard by way of video conferencing.

40The appellant relied on the wording of s. 5.2.(1) and submitted that the words “whose rules made under section 25.1 deal with electronic hearings” would be rendered superfluous if the rationale of the Hearing Officer were accepted. The appellant did not take the position on the appeal that the proceeding was improper because a notice of electronic hearing under s. 6(5) of the SPPA was not given.

41The appellant cited four decisions in support of his position, none of which is directly on point. We have considered all four decisions but note in particular two of them. In Cate v. Peel Regional Police Service, 2001 CanLII 56734 (ON CPC) the Commission dealt with an appeal from a decision of a hearing officer who ordered a mistrial after rendering a decision finding the officer guilty. The Commission decided that as a hearing officer conducting a disciplinary hearing is a “creature of statute” he or she can only exercise those powers granted by law. The Commission found that there were no rules that would allow the hearing officer to declare a mistrial, nor was there any power granted to him to do so under the PSA or the SPPA.

42In Ontario Securities Commission v. Bennett (C.A), 1991 CanLII 7386 (C.A.) the Court held that the Securities Act, R.S.O. 1980, c. 466 contained no provision that would allow the Securities Commission to issue summonses outside Ontario or apply to a court for a commission to obtain evidence from a witness outside of the province.

43In our view, the cases relied on by the appellant are distinguishable and the Hearing Officer did have the authority to order that S.T. and G.T. testify by way of video conferencing. That authority would be derived from s. 25.0.1 of the SPPA which provides the following:

A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and ….

44Allowing two witnesses who were relocated out of the country for their safety to testify by video when there was no prejudice to the appellant, fell under that section. The decision was purely a procedural one that considered the rights of the appellant. It achieved one of the goals of the SPPA as set out in s. 2 to provide “the just, most expeditious and cost-effective determination” of the proceeding. Accordingly, we do not agree with the appellant that the Hearing Officer did not have the jurisdiction to order that two witnesses could testify by way of a video link.

IV) Did the Hearing Officer err in Admitting G.T.’s Evidence by Transcript?

45The Hearing Officer’s decision to allow S.T. and G.T. to testify by video link was made in December 2015. The examination-in-chief of S.T. began on April 18, 2016. His cross-examination began on April 20, 2016 and was interrupted on April 22, 2016 when the prosecution brought a motion to place time limits on that cross-examination. The Hearing Officer placed time limits on the cross-examinations of both S.T. and G.T., although the latter had not yet begun his testimony. She also ordered that G.T. would testify on May 9-11, 2016 while S.T.’s cross-examination would then continue the following two days.

46The mother of S.T. and G.T. died on May 9, 2016 so G.T. was unable to testify the week of May 9. The prosecutor indicated that she intended to file the transcript of the evidence he gave at the appellant’s criminal trial, over the objection of the appellant. On May 24, while S.T. was still testifying, the prosecutor repeated her intention and stated the following:

Um, he has made himself available twice and I – it’s possible he would make himself available. This is not a situation of him not being willing to do this. It’s a situation of um, you know, the prosecution – it’s just not, I don’t see it as being fair to force him on in the financial, personal and difficult circumstances that he’s found himself in.

47The prosecutor also expressed concern about getting instructions to again fly officers overseas to be with G.T. as he testified. The Hearing Officer had previously decided, in a written decision dated April 27, 2016, that the transcripts of the evidence of G.T. and S.T. from the appellant’s criminal trial would be admissible if necessary. In that decision, the Hearing Officer wrote the following:

Constable Floria is not prejudiced by the admission of the criminal court transcripts. They are not untested hearsay. He was present throughout the criminal proceedings and participated by challenging the testimony of witnesses through cross examination. The contents of the transcripts are familiar to him and their reliability does not have to be proven. They are an accurate record of criminal proceedings as prepared by a certified court reporter.

In regard to the relevance of the transcripts, they are a record of the criminal proceedings. The criminal proceedings are based on the same matters which are before the tribunal and I find them to be relevant to this proceeding.

I find that the transcripts provide an accurate and reliable record of those proceedings including the witnesses’ examination in chief and their cross examinations. To admit then would be procedurally fair and would not deny natural justice. They are relevant to these proceedings and the tribunal will make the determination as to what weight to accord them.

I find that to exclude the criminal court transcripts would amount to a denial of justice to Constable Floria as he would not have the best evidence available with which to conduct his defence before this Tribunal. The testimony in criminal court was made voluntarily and under oath. This is not to be confused with the truth of the contents of those transcripts. That must yet to be determined and this tribunal will make that assessment.

There is nothing in the transcripts that would be excluded by a higher level of criminal court. By extension, there is nothing in the transcripts that would cause them to be excluded in this forum. A Hearing Officer may receive any evidence that is relevant and reliable. I find that it would be an error of law not to admit the transcripts of the criminal proceedings. The motion is allowed.

48Elsewhere in her decision, the Hearing Officer acknowledged that while the transcripts were hearsay evidence s. 15 of the SPPA gave her the right to admit such evidence.

49The essence of the appellant’s submission on this issue is set out at para. 98 of his factum which reads as follows:

G.T. never testified. Instead his criminal court transcript was filed. While Floria does not dispute the notion that transcript evidence from a related criminal proceeding can be admitted in a subsequent disciplinary hearing, the way the transcript was utilized worked a fundamental unfairness in this case. Reliance on the transcript in this case deprived Floria of the ability to cross-examine on key issues. Floria was diminished in his ability to meet the prosecution’s case.

50The appellant submitted that as the credibility of G.T. was very much in issue, he would be deprived of procedural fairness and natural justice if he were denied the right to cross-examine G.T. In support of this argument he relies on the words of the Hearing Officer in her decision to allow G.T. to testify by video link where she wrote the following:

The credibility of [G.T.] is a significant issue in this case, given Justice McDonnell’s charge to the jury and concerns articulated by defence counsel. Being able to assess credibility and determining why evidence should be accepted or rejected is achieved in many ways, The demeanor of the witness while delivering his or her testimony is an important way for the hearing officer to assess credibility and reliability of the evidence. The first-hand testimony of a witness is the best evidence and the ability to observe the mannerisms of a witness and to listen to them provides indicia of reliability.

51In Gilbert v. Ontario (Provincial Police), [1999] O.J. No. 4784, aff’d 2000 CanLII 16843 (Ont. C.A.), the Divisional Court quashed the decision of a hearing officer to admit the transcript of a complainant’s evidence from a preliminary inquiry where the officer was charged with sexual assault. The evidence of the complainant was based on her recovered memory which arose during therapy. The officer was committed to stand trial but the complainant, who resided outside of Ontario, refused testify so the charges were withdrawn. There was no cross-examination of the complainant on the issue of recovered memory or on the notes from her therapist.

52The Divisional Court wrote that as there was “...no opportunity to cross-examine in relation to a fundamental aspect of the alleged misconduct, and a fundamental aspect of the defence, the filing of the transcript amounts to a denial of natural justice resulting in a loss of jurisdiction”. We note that neither the Divisional Court nor the Court of Appeal referred to section 15 of the SPPA.

53The appellant also cites the Commission’s decision in Stevenson v. York Regional Police Service, 2013 ONCPC 12, in support of his position that the transcript of G.T.’s evidence should not have been admitted by the Hearing Officer. Stevenson involved hearsay statements made by another officer, Cst. Tram, to his Professional Standards Bureau, later recanted by him, that implicated Cst. Stevenson in an improper traffic stop and seizure of drugs. Cst. Tram had been charged with nine criminal offences including robbery, assault with a weapon, assault and breach of recognizance and 86 charges under the PSA. He did not testify at the Cst. Stevenson PSA disciplinary proceeding but the hearing officer allowed his statements to Professional Standards to be admitted.

54The Commission acknowledged that the hearing officer had the discretion to admit the statements into evidence under s. 15(2) of the SPPA but held that in the circumstances the hearing officer erred in doing so. The Commission cited the following passage from J. Sopinka, S.N. Lederman & A.W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at 308:

In proceedings before most administrative tribunals and labour arbitration boards, hearsay evidence is freely admissible and its weight is a matter for the tribunal or board to decide, unless its receipt would amount to a clear denial of natural justice. So long as such hearsay evidence is relevant, it can serve as the basis for the decision, whether or not it is supported by other evidence which would be admissible in a court of law.

55The circumstances that led to the Commission to rule that the statements should not have been admitted were set out as follows:

The Hearing Officer acknowledged in his decision that the evidence concerning Const. Tram’s bad character was “overwhelming”. At the time that Const. Tram made the utterance, he had breached the terms of his interim judicial release and was desperate to secure a deal for his release. Just before making the statements in question to Det. Riches, Const, Tram told another officer to pull out a pistol and shoot him.

Const. Tram did not make the utterances under oath, nor did he sign a statement. The utterances were neither videotaped nor audiotaped. Det. Riches” notes of the utterances were not verbatim, nor were they made contemporaneously. Const. Tram made other allegations which were investigated but none of them resulted in charges. Const. Tram was also charged with Deceit in relation to the utterances.

In these circumstances, where the hearsay evidence was so blatantly unreliable and highly prejudicial, and also went to the central issue or allegation in the case, the Hearing Officer erred in admitting it. Const. Tram should have been called as a witness if the prosecution wished to put forward his evidence; the Appellant was entitled to cross-examine Const. Tram on evidence of this nature……

The admission of and the reliance on the hearsay evidence, in these circumstances, resulted in a clear denial of procedural fairness and natural justice, namely the right to cross-examine an overwhelmingly and clearly unreliable accuser, who supposedly recanted, and who had no credibility, but whose evidence went to the central issue in the case.

56The appellant likens those circumstances to the matter before us writing in his factum the following:

The evidence of G.T. had all of these features. G.T. was a drug dealer. He had a motive to favour the prosecution in that he had obtained relocation assistance from the Toronto Police Service in exchange for his testimony – relocation assistance that he needed because his very life was in danger. There was evidence that he had conspired with his brother S.T. to commit perjury. His evidence was highly unreliable, but also central to the issues in the case.

57The respondent supports the ruling of the Hearing Officer while also citing the quotation from The Law of Evidence in Canada set out in para. 54 above. The respondent, however, appears to go further, submitting that it would have been an error of law for the Hearing Officer to rule that the transcript of G.T.’s evidence was not admissible relying in part on the decision in Walkerton (Town) v. Erdman, (1894), 1894 CanLII 9 (SCC), 23 S.C.R. 352 where the court adopted the following statement from Taylor on Evidence:

Where a witness has given his testimony under oath in a judicial proceeding, in which the adverse litigant had the power to cross-examine, the testimony so given will, if the witness himself cannot be called, be admitted in any subsequent suit between the same parties, or those claiming under them, provided it relate to the same subject or substantially the same material questions.

58In that case, Erdman brought an action in negligence against Walkerton and pursuant to a court order was examined de bene esse. Erdman was cross-examined by counsel for Walkerton then died before his action came to trial. His spouse brought an action on her behalf and her children pursuant to Lord Campbell’s Act. The Supreme Court of Canada allowed the filing of a transcript of Erdman’s evidence in the second action relying on the above statement from Taylor on Evidence.

59Having reviewed the parties’ submissions and the authorities they cite, we are of the view that the Hearing Officer did not commit an error of law in allowing the filing of the transcript of the evidence of G.T.

60S. 15 of the SPPA gives an adjudicator the discretion to admit hearsay evidence. In Stevenson, above the Commission recognized that “adjudicators have the discretion of admitting hearsay evidence and assigning an appropriate weight to it, always taking into account that the evidence was not subject to cross-examination and therefore should not be accorded as much weight as first-hand evidence.” The Commission indicated that the evidence of Cst. Tram allowed by the hearing officer was “extremely unreliable”, “blatantly unreliable”, “highly prejudicial” and “went to the “central issue or allegation in the case.”

61Courts, when considering the principled exception to the hearsay rule have distinguished between threshold and ultimate reliability. The distinction is set out in the following quotation from R. v. Starr, 2000 SCC 40 at pp. 253-4:

…it is important when examining the reliability of a statement under the principled approach to distinguish between threshold and ultimate reliability. Only the former is relevant to admissibility…Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness. This could be because the declarant had not motive to lie…or because there were safeguards in place such that a lie could be discovered.

62Such “circumstances” were discussed in R. v. Hawkins, 1996 CanLII 154 (SCC) when dealing with the admission or prior testimony from a preliminary inquiry where the court wrote the following:

The surrounding circumstances of such testimony, particularly the presence of an oath or affirmation and the opportunity for contemporaneous cross-examination, more than adequately compensate for the trier of fact’s inability to observe the demeanor of the witness in court. The absence of the witness at trial goes to the weight of such testimony, not to its admissibility.

63The Hearing Officer implicitly recognized the distinction between threshold reliability and ultimate reliability as is evident in the quotation from her reasons in paragraph 47 above. She dealt with the circumstances under which the evidence was given (threshold reliability) and noted that the “truth of the contents of those transcripts” had yet to be determined (ultimate reliability). We see no error of law in her admission of the transcript given her discretion under the SPPA.

64We acknowledge the appellant’s submission that the allegations underlying the Breach of Confidence charge may not have been extensively dealt with in his cross-examination of G.T. at the criminal trial and that he was unable to cross-examine G.T. further before the Hearing Officer by admission of the transcript. However, the admission of hearsay evidence is often allowed in circumstances where there was no prior cross-examination or no opportunity to cross-examine the maker of the statement before the adjudicator. That is the nature of hearsay evidence. We cannot say that the prejudice alleged by the appellant in not being able to cross-examine G.T. before the Hearing Officer amounted to a denial of natural justice such that the transcript should not have been admitted.

V. Did the Hearing Officer err in Her Approach to Credibility?

65The appellant submits that the Hearing Officer made numerous errors of law in her application of the “well-worn” legal principles governing the assessment of credibility of witnesses. The first alleged error applies to the first Discreditable Conduct charge and the Breach of Confidence charge. The appellant denied that he suppressed evidence (telling S.T. to lie about how he sustained his injuries or not report the matter to the police) on the first charge and denied that he ran the licence plate on the second charge.

66The prosecutor filed the transcript of the appellant’s evidence given at his trial on the criminal charges. The transcript contained both inculpatory statements, as conceded by the appellant, and exculpatory statements. The appellant submits that in the absence of the proven falsity of any exculpatory portion of the transcript, the Hearing Officer was required to accept that portion as true, rather than subject that portion to the usual credibility analysis. He relies on the decision in R. v. Choucair, 2011 NWTTC 13 where the court held that “An accused is entitled as of right to have a statement made by him considered in its entirety and in the absence of the falsity of any exculpatory portion, to have that exculpatory portion accepted as true”.

67Assuming that this criminal aw principle applies to an administrative law proceeding, in our view, the correct treatment of the exculpatory portion of a statement given by the accused but introduced into evidence by the prosecution is set out in R. v. Lynch (1988), 30 O.A.C. 49 as confirmed in R. v. Humphrey, 2003 CanLII 6855 (ON CA). In Lynch, the court wrote the following:

But, where as in this case the exculpatory statements were introduced as part of the Crown’s case, the jury should have been instructed that those statements became evidence for the accused as well as against him and that it was open to the jury to consider those statements as proof of the facts contained therein. The exception to the general rule against self-serving statements is founded on the principle that where the Crown introduces the statement, then it adopts that statement at least as evidence in the Crown’s case.

68The Hearing Officer was required to consider the exculpatory statements of the appellant and in our view she did so. She accepted the evidence of S.T. on the first charge and explained why she rejected the evidence of the appellant. The Hearing officer did so with respect to the Breach of Confidence charge as well, accepting the evidence of S.T. She noted the appellant’s denials during the criminal trial on both matters. Even if Choucair applied, the Hearing officer explained why she found the evidence of the appellant to be false.

69The appellant next submits that the Hearing Officer referred to evidence that did not exist. At page 118 of her decision, in dealing with the fourth charge which related to the second kidnapping, the Hearing Officer wrote: “I must question his line of thinking, given a second phone call from Mr. Vornicu about the same occurrence”. The appellant submits that there was no evidence that he received a “second” phone call from Mr. Vornicu. In reviewing the decision, it appears that the Hearing Officer was referring to the appellant’s own evidence (see paragraph 15 above) that he received two phone calls the morning of the second incident, one from Alexander Armand and one from Mihai, which was Mr. Vornicu’s first name. Accordingly, we see no error in the Hearing Officer’s decision.

70The appellant next submits that the Hearing Officer failed to apply the requisite level of scrutiny to the unsavoury witnesses, especially those with a criminal background, had committed perjury or had motives to favour the prosecution. The appellant’s argument is that the Hearing officer failed to self-instruct on the rule in R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. He further submits that she accepted the evidence of the prosecution witnesses without corroboration on key points while ignoring the 80 pages of inconsistencies in the evidence of S.T alone that were submitted by defence counsel at the hearing.

71The Hearing Officer wrote the following at page 83 of her decision:

I read the charge to the jury which was thorough and complete. I am aware of the backgrounds of all witnesses which was why, from the onset, I dealt with credibility issues. While I agree with the need to be wary of the unsavoury backgrounds of witnesses, especially one with a previous incident of perjury, I also agree that witnesses with such backgrounds should not be deterred from being a complainant in a PSA matter. It rests with me to determine issues of credibility while assessing their testimony, their relationships and the context around the perjury.

72If we were to accept that this principle from Vetrovec even applied to a PSA proceeding, the Hearing Officer did in effect give a Vetrovec self-instruction. She also reviewed much of the evidence twice. First when she was detailed the evidence of the witnesses, both in chief and in cross-examination. Second, she summarized the evidence later in her reasons when dealing with the specific charges against the appellant. She explained why she accepted portions of the evidence of the witnesses while rejecting other portions. She was aware that S.T. admitted to committing perjury and was involved in the cultivation of illegal drugs. That was the lens through which she viewed the evidence of an admitted unsavoury witness.

73The appellant submitted that the Hearing Officer failed to address the inconsistencies in the evidence of S.T. The Hearing Officer made several references to inconsistencies in the evidence of S.T. and others. She wrote the following at page 84 of her decision:

I have reviewed the testimony before the tribunal, which was extensive, and, at times, included inconsistencies. Defence counsel stated these inconsistencies affect a witness’ (sic) credibility but I am in the best position to make that determination. This hearing elicited so much controverted evidence and alleged inconsistencies. I have considered all the evidence before me, including the inconsistencies, and have focused my decision on the relevant testimony and exhibits that pertain to the Notices of Hearing and the credibility of the witnesses and the subject officer.

74Findings of fact and assessments of credibility are generally owed considerable deference by the Commission: Toronto Police Service v. Blowes-Aybar, 2004 CanLII 34451 (Ont. Div. Ct.). As set out above, we are not satisfied that the Hearing Officer failed to subject the evidence of the prosecution to adequate scrutiny.

75The appellant next submits that the Hearing Officer made an error of law in concluding that S.T. and G.T. had no motive to fabricate their evidence and that the finding of guilt on the first Discreditable Conduct charge was directly premised on this error.

76In our view, the evidence necessary to support the finding of guilt on the first Discreditable Conduct charge was proven on clear and convincing evidence, even if the Hearing Officer was wrong in finding that there was no motivation to fabricate.

77The Hearing Officer was required to assess the credibility of the witnesses. Like a trial judge or jury, she could accept some, all or none of the evidence of a witness. She found that the appellant suppressed information by telling S.T. what to do and say, and what not to do and say. The appellant essentially admitted to misconduct, just not the exact misconduct of which he was found guilty.

78The appellant has indicated that he does not now “quarrel” with the finding that the kidnapping took place. There is no doubt that he chose to conduct an investigation of sorts. He viewed surveillance videos looking for proof of the kidnapping and the payment of the ransom. The particulars of the first Discreditable Conduct charge were that the appellant failed to report the kidnapping and that he suppressed information by telling S.T. not to report the crime to police, not to seek medical attention and if he did, to give a false reason for the injuries. One of the appellant’s grounds of appeal is that his admitted neglect in failing to report the crime does not amount to Discreditable Conduct. As will be explained below, we do not accept that submission.

79The appellant essentially admitted that he failed to report the crime. It is worth repeating the appellant’s own words set out in paragraph 7 above where he stated:

In the case he was telling the truth and he did not fabricate this occurrence, reporting this by me could have endangered the victim’s life and mine. I was concerned for my family’s safety both here and in Europe. I did not know who I was up against, I just knew that if the victim told the truth, these people were very dangerous and they might know of me but I did not know of them.

80In a surreptitiously recorded conversation between the appellant and “Tom” on November 5, 2007 the appellant in talking about the kidnapping said the following (Exhibit 50, Tab 19):

So uh, so anyways I don’t know what’s gonna happen. Honestly I don’t know. They gonna fucking call me in and uh, yeah I bet they gonna fucking, if they not gonna suspend me. I don’t think they gonna suspend me because I didn’t do anything, anything, anything criminal or anything like that. Um, maybe neglect I don’t know because I didn’t report it, but what the fuck I’ve got a life I don’t want to get fucking killed. You know what am I going to play with these fucking people I don’t, I mean I don’t know honestly I don’t know…fuck, Tom

81The Hearing Officer summarized his conclusion about this charge at page 95 of his decision as follows:

Constable Floria had an obligation and a duty to report a crime that was reported to him and to assist S.T. as a victim of a crime. As noted, the kidnappers remain at-large which is a significant public safety concern. The fact that he failed to report the crime and he failed to fulfil his duty and obligation as a police officer is a matter that is likely to bring discredit to the reputation of the Service as any ordinary and prudent person would expect a police officer to respond according to his or her training and the information provided. The public expects and deserves a responsive police organization, no matter the background of the individual reporting the crime. It was not Constable Floria’s responsibility to determine the outcome of his case based on his beliefs that the incident did not occur without the benefit of a thorough investigation by an experienced investigator. The public deserves no less. I find, based on clear and convincing evidence, that Constable Floria is guilty of the offence of discreditable [conduct].

82In our view, the appellant cannot successfully argue with this conclusion. We see no palpable and overriding error.

83The appellant’s final submission on the credibility analysis of the Hearing Officer is that she failed to deal with the likely collusion of the witnesses S.T., G.T. and Mr. Ionas. As set out in his factum, the appellant submits:

In short, these were people who trusted each other with their lives. Ionas testified that he “would do anything for S.T” It defies common sense that the witnesses who were extremely close and living together in hiding would not have had any discussions amongst themselves about an ongoing, life threatening situation, that was unfolding in real time.

84In our view, the Hearing Officer did address the potential collusion of the three witnesses and the inconsistencies in their evidence. Her findings of fact are entitled to deference. We agree with the following statement in R. v. C.L., 2013 ONSC 277 at para. 71:

Collusion refers to the possibility that witnesses may have shared their stories with one another and. Intentionally or accidentally, changed or tailored their stories in order that their testimony would seem more similar or convincing. Such collusion can, of course, destroy the potential probative value of testimony that would otherwise have seemed independent and compelling. Trial judges…..must also consider the possibility of such collusion in simply assessing the reliability of the evidence of the witnesses. In the final analysis, however, it is for the trier of fact to determine whether the testimony of the witnesses is reliable despite the possibility of collusion, or whether less weight, or no weight, should be given to the evidence which might have been influenced by the sharing of information.

85There can be little doubt that the three witnesses shared information “intentionally or accidentally”. The Hearing Officer explained why she accepted their evidence on the key points and we are not satisfied that she erred in her ultimate credibility assessment.

VI. Did the Misconduct Charges 1 and 4 amount to Discreditable Conduct?

86We have detailed the appellant’s argument on this point earlier in these reasons, at least insofar as the first charge is concerned, i.e. that a failure to report does not equate to Discreditable Conduct. The appellant has not provided us with any authority for the proposition that conduct by an officer that may be neglectful or amount to the offence of failure to report cannot also in some circumstances amount to Discreditable Conduct. In Gallant v. Ontario Provincial Police, 2017 ONCPC 16, the Commission wrote the following:

The appellant accepts that the Hearing Officer correctly stated the test for discreditable conduct. The Hearing Officer wrote “The test for discreditable conduct is primarily an objective one and can be measured in asking this question: Would a reasonable person in the community, dispassionate and fully apprised of the circumstances of the case perceive the statements as discreditable?”

87There can be little doubt that the appellant understood he faced a potentially dangerous situation when S.T. reported the kidnapping. His own words confirmed his awareness which crested in a fear for his own life and that of his relatives if his involvement with S.T. became known. Yet, he did nothing after his cursory, private investigation. He failed in his duty as a police officer in a manner that amounted to, objectively, Discreditable Conduct.

88Regarding the second charge of Discreditable Conduct, we have set out the facts of the incident and summarized the conclusion of the Hearing Officer earlier in this decision.

89The Notice of Hearing for this charge alleged that the appellant was provided information regarding the kidnapping of two individuals and that he suppressed the information. However, the word kidnapping was never used in the conversations with the appellant. The information he received was second hand and he advised Mr. Alexander to have the individual who reported the fight to call 911.

90The Hearing Officer wrote the following:

Constable Floria had been a police officer for about 7 years at the point of this phone call. He should have recognized that a report of two people being beaten up, put in a car, taken away and not able to be found equated to a kidnapping. It did not matter if the word kidnapping was used, the essential elements of the charge were present and Constable Floria failed to recognize the significance of the information presented to him.

Constable Floria was given information that was vital to the investigation. He had the name of the person who took the man and the woman away in a car, he had the names of the two males involved in the fight and the fact that the female was not answering her phone. Given the information and concern expressed by Mr. Alexander, it was incumbent upon Constable Floria to start an investigation, alert his supervisors, contact the Officer-in-Charge (OIC) of the division and relay information. Constable Floria was on-duty at the time and had significant resources at his disposal which he failed to utilize. For the second time in about a month, he failed to recognize the seriousness of the information provided and he did not report a criminal act when he received the information. In this instance, Constable Floria dismissed it as a drunken fight that would work itself out and encouraged the caller to phone the police, 911 or the division involved. As noted, Constable Floria was on-duty and it was his responsibility to take the information seriously, record the information and make the requisite calls, not pass the responsibility to others. He had a duty to cause an investigation and he failed in that duty.

91The circumstances the appellant subsequently faced could have been avoided had he simply reported what he had been told to a supervisor. As the Hearing Officer wrote “he had a duty to cause an investigation”. Working in Traffic Services the appellant did not have a duty to start an investigation, but we agree that he had a duty to alert his supervisors, allow them the opportunity to assess the information and conduct whatever investigation they thought was warranted. Accepting the Hearing Officer’s definition of suppress from the Oxford Dictionary as including to inhibit, the appellant had information that he did not share and he should have done so. Objectively, the public would have expected more of a police officer and the appellant’s failure to meet that expectation would bring discredit to the reputation of the service.

92We have considered the appellant’s submissions on the basis that the standard of review on the facts is palpable and overriding error. In Jeremiah Johnson v. Durham Regional Police Service, 2020 ONCPC 3, a decision of the Commission’s released on June 6, 2020, after the appeal in this matter was argued, the Commission confirmed that the standards of review to be applied were the traditional ones as set out in Diafwila and Dunsmuir. We are satisfied that the result in this appeal would be the same regardless of what standards were applied.

VII) The Penalty Appeal.

93In Karklins v. Toronto (City) Police Service, 2010 ONSC 747 (Div. Ct.), the court provided the following description of the role of the Commission in a penalty appeal:

The role of the Commission on a penalty 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 before him or her. We can only vary a penalty decision where there is a clear error in principle or relevant material factors are not considered. This is not something done lightly.

94This role has been repeatedly confirmed since: see for example Husseini v. York Regional Police Service, 2018 ONSC 283 at paras. 51-52.

95The appellant submits that the Hearing Officer increased the seriousness of the penalty to reflect the multiple acts of misconduct and writes in his factum that:

While there is no error in taking the misconduct cumulatively, the effect of doing so is that if any of the convictions are overturned, or if the aggravating facts on any of the convictions are not sustained on appeal, it opens the door to a wholesale review of the penalties imposed on all counts.

96The respondent submits that if any one finding of guilt is confirmed by the Commission the dismissal of the appellant was reasonable. The respondent cites the Commission’s decision in Nesbeth and Windsor Police Service, 2015 ONCPC 23 for the proposition that “one-off” acts of deceit or discreditable conduct will justify the dismissal of an officer.

97Turning to the decision of the Hearing Officer, she structured her analysis of the evidence on penalty by reviewing 9 of the 13 factors set out in Krug v. Ottawa Police Service, 2003 CanLII 815 816 (ON CPC) at para. 69. These factors are:

• Public interest;

• Seriousness of the misconduct;

• Recognition of the seriousness of the misconduct;

• Disability and other relevant personal characteristics;

• Management approach to the misconduct;

• Employment history;

• Potential to reform or rehabilitate the police officer;

• Effect on police officer and his family;

• Consistency of disposition;

• Specific and general deterrence;

• Damage to the reputation of the police force;

98As stated by the Commission in Krug: “There is no requirement that any one factor be given more weight than another. The seriousness of the offence alone may justify dismissal. Aggravating factors can serve to diminish the weight of any mitigating factors.”

99We have reviewed the Hearing Officer’s consideration of these factors, although not asked by the appellant to do so, and do not find any clear errors in principle that would warrant our imposing different penalties.

100The appellant, “without minimizing the seriousness of the neglect” maintains his position that his offences (charges 1 and 4) were “essentially neglects of duty for failing to report: an officer shirking his responsibility to commence a report to report of alleged criminality himself and instead directing the victim to contact the police through other channels.” In our view, this characterization reflects a lack of appreciation of the seriousness of the offences and the reasons of the Hearing Officer in making the findings of guilt. It is further our view that the first Discreditable Conduct charge alone justified dismissal for the reasons given by the Hearing Officer both in her decision on the merits and the penalty.

101The Hearing Officer cited the Commission’s decision in Bovell v. York Regional Police Service, 2012 ONCPC 10 at para. 10:

The role of a police officer is to protect members of the public and safeguard their privacy. If Constable Bovell were returned and redeployed again in the community it would cause irreparable damage to its reputation and be an affront to the expectation regarding the conduct of its police.

102Those comments would apply equally to this matter. As the appellant has acknowledged that the Hearing Officer was entitled to take into account the misconduct cumulatively, the penalties imposed for Insubordination, Breach of Confidence and the second Discreditable Conduct finding are reasonable and well within the range of appropriate penalties.

ORDER

103Pursuant to section 87(8) of the Police Services Act, the Commission confirms the findings of guilt by the Hearing Officer and the penalties imposed.

Dated at Toronto this 17th day of August, 2020

_______________________

D. Stephen Jovanovic

______________________

Maureen Helt

_______________________

Laura Hodgson