ONTARIO CIVILIAN POLICE COMMISSION

Safety, Licensing Appeals and Standards Tribunals Division

COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE

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

Citation: Stevenson v. Bryson, Green and Durham Regional Police Service, 2020 ONCPC 8

Date: September 15, 2020

File: 19-ADJ-004

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

Between:

Donna Stevenson

Appellant

and

Cst. Bryson, Cst. Green and Durham Regional Police Service

Respondents

and

The Independent Police Review Director

Intervener

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair Laura Hodgson, Vice-Chair John Kromkamp, Member

Appearances:

Donna Stevenson, the appellant William MacKenzie, counsel for the respondents Csts. Bryson and Green No one appearing for The Independent Police Review Director Philip Wright, counsel for the respondent Durham Regional Police Service

Place and date of hearing:

Toronto, Ontario December 4, 2019

Introduction

1This is an appeal by Donna Stevenson, the appellant, from the decision of Superintendent Dave Andrews (the Hearing Officer) dated March 26, 2019 by which he found that the actions of the respondent officers did not amount to Discreditable Conduct and dismissed the charges against them.

2The charges arose from the respondent officers’ involvement in the investigation of a motor vehicle accident on February 7^th, 2013 which resulted in the death of the appellant’s 18 year old son Joey and caused serious injuries to her 19 year old son Chad. The accident happened at approximately 10:30 p.m. when they attempted to cross Dundas Street East in Whitby and were struck be a car driven by Stephen Rodger.

3Each of the respondents faced one count of Discreditable Conduct set out in the Notice of Hearing as follows:

YOU ARE ALLEGED TO HAVE COMMITTED MISCONDUCT IN THAT YOU, on the 7^th day of February, 2013 acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force, thereby committing the offence of Discreditable Conduct, contrary to Part V, clause 80(1)(a) of the Act as amended, and section 30, clause 2(1)(a)(xi) of the Schedule “Code of Conduct”, O.Reg. 268/10, as amended under the Act.

4The appellant requests that we substitute our decision for that of the Hearing Officer and impose a finding of guilt against both of the respondent officers and order a hearing as to penalty.

Disposition

5For the reasons that follow, we confirm the decision of the Hearing Officer.

OVERVIEW

6An Agreed Statement of Facts (ASF) was filed as an exhibit before the Hearing Officer who also heard evidence from the respondent officers. The following information is taken from the ASF.

7Mr. Rodger was traveling westbound on Dundas Street East approaching its intersection with Hickory Street. In his interview with the Durham Regional Police Service (DRPS), he stated that his speed was about 60-65 kph in the 50 kph zone. A light snow was falling and the roadway was “slushy and sloppy”. He did not see either Chad or Joey before the impact with his vehicle.

8Cst. Green received the call to respond to the accident at about 10:50 p.m. and was the first officer to arrive at what he described was a chaotic scene with a number of civilians providing assistance to Chad and Joey, who was receiving CPR. Mr. Rodger identified himself to Cst. Green and as other officers had arrived at the scene, Cst. Green placed him inside his police cruiser. While in the cruiser, Cst. Green checked Mr. Rodger for signs of impairment but did not detect any. Cst. Green asked Mr. Rodger if he had consumed any alcoholic beverages to which Mr. Rodger replied that he had one beer about five hours earlier.

9Cst. Green then drove Mr. Rodger to the DRPS Central Division arriving at approximately 11:30 p.m. where they met Det. Bryson, who was working in the Collision Investigative Unit under the Traffic Services Branch of the DRPS. According to Cst. Green, he advised Det. Bryson, who was assigned as the lead investigator, that Mr. Rodger admitted to having a beer about five hours earlier.

10Det. Bryson then interviewed Mr. Rodger and asked him if he had consumed any alcohol that day, to which Mr. Rodger replied that he had a beer with dinner at 6:00 p.m. then left his home at approximately 7:45 p.m. to attend a hockey game at the Iroquois Sports Complex in Whitby. Det. Bryson did not observe any signs of impairment during this interview, but did not recall Cst. Green or any other officer telling him that Mr. Rodger had earlier admitted to having the one beer.

11The DRPS Directive LE-009-04 on Impaired Driving Investigations was part of the ASF. Paragraph 2 reads as follows:

Members Shall

(A) Alcohol Related Impaired Driving Investigations:

a. Make observations when they suspect, have reasonable grounds, or form the opinion on reasonable grounds to believe, that the operator is impaired by alcohol, has committed or is committing the offence of exceed .08; record in their memo book evidence concerning the following:

1. The suspect’s driving, prior to being stopped.

2. The suspect’s appearance, deportment and mannerisms.

3. Any odour of alcohol beverage on the suspect’s breath.

4. The suspect’s ability or inability to maintain their balance and composure.

5. Any obvious physical characteristics such as slow or slurred speech.

6. Any statements made by the suspect, relevant to the matter at hand.

7. Any other observations that reasonable support the conclusion that the operator is impaired by alcohol, has committed, or is committing the offence of an exceed .08.

b. Have the option to make a demand to a person, requiring them to provide a suitable sample of their breath for testing by means of an approved screening device (see (C) Use of the Approved Screening Device); This option shall be exercised when it is reasonable to suspect a person with alcohol in their body is operating and has the acre and control of, or is assisting in the operation of a motor vehicle, vessel, aircraft or railway equipment, whether I motion or not.

12Both Cst. Green and Det. Bryson testified before the Hearing Officer. The essence of Cst. Green’s evidence is set out at paras. 23 and 24 of the Hearing Officer’s decision where he wrote the following:

23. When Mr. Rodger had advised that he only had one beer, approximately 5 hours before the collision, Constable Green believed that Mr. Rodger was being truthful with him. Constable Green found Mr. Rodger to be very truthful and honest and scared. Constable Green believed that there would be no alcohol left in Mr. Rodger’s system due to the rate of elimination that Constable Green learned as part of his training. Due to the fact that Cst. Green believed that there were no grounds to reasonably suspect that any alcohol was present in Mr. Rodger’s body, coupled with the fact that there was no indicia of impairment, Constable Green believed that there were no grounds to reasonably suspect that any alcohol was present in Mr. Rodger’s body. He did not believe that he had the grounds to make an approved screening device demand.

24. Constable Green did not believe that alcohol was a factor in the collision. It was Cst. Green’s understanding of the Criminal Code that he may administer the approved screening device only if he could form reasonable suspicion that there was alcohol in Mr. Rodger’s blood. The Impaired Operator’s Course included a section on alcohol elimination. Constable Green was taught that the body eliminates approximately one drink per hour. He also stated that this rate of elimination was considered common knowledge among police officers. According to Cst. Green, reasonable suspicion included the belief that there would be alcohol in his blood or body. Constable Green was not able to administer the approved screening device without reasonable suspicion. It was this understanding of the law that guided Constable Green’s actions on the night of February 7, 2013.

13Cst. Green had successfully completed a three day Impaired Operator’s Course in 2007 and as a front line patrol officer he had been involved in approximately 100 impaired driving investigations in the ensuing years.

14At para. 77 of his decision, the Hearing Officer summarized a key part of Det. Bryson’s evidence as follows:

Detective Constable Bryson considered his knowledge of elimination rates and judged that approximately 5 hours had passed from the time that alcohol was consumed to the time that the collision had happened and to the time of the interview. There were no other indications of impairment being exhibited by Mr. Rodger. There was no odour of an alcoholic beverage. As a result, Detective Constable Bryson did not believe there was any alcohol left in Mr. Rodger’s system. The basis for this determination depended, in part, on Detective Constable Bryson’s previous impaired arrest experiences. He usually relied on an odour of alcohol for the determination of administering a roadside screening device or to arrest a person for impaired driving. In this case there was no odour of an alcoholic beverage. There were no other signs of impairment that were obvious to Detective Constable Bryson, for example unsteadiness on his feet, confusion or glassy/water eyes or slurred speech. In his assessment, Detective Constable Bryson did not believe alcohol was an issue. The only factor that Detective Constable Bryson had at his disposal was the admission of alcohol consumption approximately 5 hours prior to the crash, in conjunction with Mr. Rodger’s statement that he had been coaching hockey that evening.

15The Hearing Officer began his analysis of the issues with the “need to answer two overarching questions:

1. Did the officers have the lawful authority to make a demand for a breath sample in an approved screening device?

2. If so, did their failure to administer the approved screening device amount to misconduct as alleged in the Notice of Hearing?

16He wrote that in order to answer the first question he had to address two issues:

1. What is the law pertaining to reasonable suspicion?

2. What law existed before February 2013 that specifically addressed reasonable suspicion in relation to roadside screening test demands?”

17The Hearing Officer concluded that the law in Ontario in 2013 was that an officer had the authority to make a breath demand based on the admission of alcohol consumption without any further indicia of impairment. Mr. Rodger’s admission that he had one beer 5 hours before the accident was sufficient to create the necessary reasonable suspicion for a breath demand by both of the respondent officers.

18No party before us takes issue with this conclusion.

19The Hearing Officer then turned his analysis to whether the respondent officers’ failure to administer an approved screening device to Mr. Rodger amounted to Discreditable Conduct. This determination required him to deal with the following four questions:

I. What is the test for Discreditable Conduct?

II. Is the testimony of the officers credible and reliable for the purpose of my analysis?

III. Did the officers properly exercise their discretion?

IV. Does the officers’ failure to administer a breath test meet the test for Discreditable Conduct?

20As will be discussed in detail below, the Hearing Officer articulated a test for Discreditable Conduct that is not in dispute, found the evidence of both officers to be credible and reliable, concluded that they had no discretion not to administer a breath test, but that their failure to administer breath tests did not amount to Discreditable Conduct.

21The Hearing Officer also concluded that both of the respondent officers were doing what the public expected of them, with no indication of carelessness, recklessness or bad faith. He wrote that their conclusions, independently reached, that they did not have the requisite reasonable suspicion to make a demand for a breath sample was not conduct that would cause the reasonable person to believe that the reputation of the DRPS would be damaged by their actions.

Issues

22The appellant raised the following issues in her factum and in her oral submissions before us:

I. What is the standard of review to be applied by the Commission?

II. Did the Hearing Officer make the requisite credibility and reliability findings?

III. Did the Hearing Officer correctly apply the test for Discreditable Conduct?

ANALYSIS

23The DRPS took no position on the merits of the appeal but did deliver a factum for the assistance of the Commission. The respondent officers raised no additional issues and submitted that the decision of the Hearing Officer was reasonable.

I. What is the standard of review to be applied by the Commission?

24The standard of review traditionally applied by the Commission hearing an appeal from the decision of 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 have been 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.

25None of the parties take issue with this statement. We would add that findings of fact and credibility are generally owed considerable deference by the Commission: Toronto Police Service v. Blowes-Aybar, 2004 CanLII 34451 (Ont. Div. Ct.).

II. Did the Hearing Officer make the requisite credibility and reliability findings?

26The appellant submits that the Hearing Officer had a duty to engage in a credibility and reliability assessment of the evidence of the respondent officers and failed to engage in such assessments, in particular with respect to the reliability of their testimony.

27The Hearing Officer did deal with the issues of credibility and reliability of the respondent officers at paras. 211-215 of his decision. He wrote the following at para. 213:

I also note that neither officer had a notation of what was said to each other regarding the Stephen Rodger admission. This could have worked in the officers’ favour if they wanted to be dishonest and provide matching statements about the Rodger consumption because there were no notes to contradict their oral version. But neither of them conspired with each other. They participated in a compelled interview [with] Detective Moreau which was clearly unrehearsed. They provided testimony before me on January 7^th. They were courteous to everyone, they stood their ground firmly, yet politely on matters that they believed in. They also conceded points to counsel under cross-examination, even when their answers did not benefit their position. I have no trouble finding that both officers were credible.

28In our view, the Hearing Officer put the issues of credibility and reliability of the respondent officers in their proper context when he wrote the following at para. 215 of his decision:

In relation to the credibility of the officers, it does not matter to this Tribunal whether it is Constable Green or Detective Constable Bryson who is correct in their version. It does not matter whether Detective Constable Bryson knew fifteen minutes before the interview started that Mr. Rodger had consumed alcohol or whether he found out fifteen minutes into the interview that Mr. Rodger consumed alcohol. What is important is that while Mr. Rodger was with Detective Constable Bryson, the officer learned that the driver had consumed alcohol and Detective Constable Bryson was in a position to do something about it. The issue isn’t when he learned, but rather what action he took when he learned. As we are aware, upon learning about the alcohol consumption, he did not make a breath demand. Similarly, it was determined that Constable Green was in possession of knowledge that Stephen Rodger had consumed alcohol. At its core, my issue is not whether Constable Green relayed that information to Detective Constable Bryson but rather, why did Constable Green not make the demand himself and did his failure to do so constitute misconduct.

29The appellant has cited a number of decisions dealing with the importance of credibility and reliability assessment in trials. However, we have not been provided with any specifics about any errors allegedly made by the Hearing Officer in his assessment that would have changed the result of the hearing before him. He found that both of the respondent officers were wrong in their opinions as to whether reasonable suspicion existed and then addressed whether their failures to request the breath sample, under the circumstances, constituted misconduct.

III. Did the Hearing Officer correctly apply the test for Discreditable Conduct?

30The Hearing Officer referred to a number of decisions that describe the test for Discreditable Conduct starting with Toy v. Edmonton (City) Police Service, 2014 ABCA 353 where the court wrote the following:

The Presiding Officer articulated what counsel agreed was an acceptable test for determining discreditable conduct. In sum, the test involves an objective evaluation as would be made by a dispassionate reasonable person fully apprised of the circumstances and with due regard for any applicable rules and regulations (or law) in force and with due regard for good faith considerations where the officer under scrutiny was required to exercise discretion under the circumstances.

31This test in a slightly modified form has been adopted by the Commission in a number of cases including Mulligan v. Ontario Provincial Police, 2017 ONCPC 19 and Mulville and Azaryev and York Regional Police Service, 2017 CanLII 19496 (ON CPC) where the Commission stated the test as follows:

The objective test would require that the Hearing Officer place a dispassionate, reasonable person fully apprised of the same facts and circumstances, aware of the applicable rules and regulations, in the same situation to assess whether the conduct in question was discreditable.

32This test must be read in conjunction with section 2(1)(a)(xi) of the Code of Conduct, which sets out the Discreditable Conduct occurs when an officer “acts in a disorderly manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force of which the officer is a member”.

33The appellant makes three principal points in submitting that the Hearing Officer incorrectly applied the test for Discreditable Conduct. These may be summarized as follows:

• The Hearing Officer should not have considered good faith on the part of the respondent officers as they were not exercising discretion.

• The Hearing Officer should not have equated lack of bad faith with good faith.

• The Hearing Officer failed to take into account the scourge of impaired driving.

34The test set out in the Toy decision does refer to “having due regard to good faith considerations where the officer under scrutiny was required to exercise discretion under the circumstances.” It appears that the prosecution and the appellant took the position before the Hearing Officer that the respondent officers improperly exercised their discretion. The Hearing Officer disagreed with that position, finding instead that they had no discretion to exercise. Now, according to the appellant, the Hearing Officer’s finding that the respondent officers did not act in bad faith taints his decision. We disagree.

35The Hearing Officer examined the conduct of the respondent officers in detail and found that they were doing “what the public expected of them with no indication of carelessness, recklessness or bad faith.” He then wrote the following:

When the reasonable person in the community observes two officers who were performing their duties to the best of their abilities and who received the same training; used the same rationale in their analysis of their authority, and, who, without consultation with each other, came to the same conclusion that they lacked the grounds to form reasonable suspicion, it could not cause the reasonable person to believe that the reputation of the police service was damaged by their actions.

36In so finding, in our view he did what he was required to do i.e., decide if the respondent officers’ actions were “likely to bring discredit upon the reputation” of the DRPS. His conclusion that a reasonable person would not so find, a conclusion that we may not necessarily agree with, was reasonable.

37We see no reason to import the criminal law principle from R. v. Omar, 2018 ONCA 975, that a lack of bad faith does not equate to good faith, given the Hearing Officer’s ultimate conclusion set out above. Even if we were to apply that principle, we do not think that the Hearing Officer fell into the type of error committed by the trial judge in Omar.

38The final submission of the appellant deals with the scourge of impaired driving. She submits that the Hearing Officer, in considering the reasonable expectations of the community “never adverted to how the long recognized dangers and concerns arising from impaired driving impacted his analysis of the community’s reasonable expectations.”

39The Hearing Officer at para. 158 of his decision referred to this argument made by the appellant’s counsel, writing the following:

I was advised that their conduct must be measured against the reasonable expectation of the community. She reiterated the statistics of fatalities and alcohol related incidents within Durham Region and then brought that into our matter and asked if the reasonable person in the community knew that a breath demand was not made would they find this unacceptable.

40It does not appear that the Hearing Officer referenced this argument in his analysis of “dispassionate, reasonable person”, considering the actions of the respondent officers. The failure to do so does not, however, render his ultimate conclusion unreasonable.

41In Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, the court wrote the following at para. 16:

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonable analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion…In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes. The Dunsmuir criteria are met.

42The Supreme Court of Canada made similar comments more recently in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 where the Court wrote the following at para. 91:

A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details that the reviewing judge would have preferred” is not on its own a basis to set the decision aside: Newfoundland Nurses, at para. 16

43While it may have been preferable for the Hearing Officer to have referenced how the public’s views on impaired driving factored into his analysis as to whether the respondent officers committed Discreditable Conduct, his reasons, read as a whole, are sufficient to justify his conclusion.

ORDER

44Pursuant to section 87(8)(a) of the Police Services Act, the Commission confirms the decision of the Hearing Officer dismissing the charges of misconduct against the respondent officers.