Tribunals Ontario

Ontario Civilian Police Commission

Tribunaux Décisionnels Ontario

Commission Civile De L’ontario Sur La Police

Citation: Beyeler v. York Regional Police, 2021 ONCPC 1

Date: 2021-02-04

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

Between:

Cst. Eric Beyeler Appellant

and

York Regional Police Respondent

DECISION

Panel: D. Stephen Jovanovic, Associate Chair Maureen Helt, Vice-Chair John Kromkamp, Member* *Mr. Kromkamp did not participate in the decision

Appearances: William R. Mackenzie, counsel for the appellant Jason Fraser, counsel for the respondent

Place and date of hearing: Toronto, Ontario November 14, 2019

Introduction

1This appeal arises from the decision of Superintendent Graeme Turl (the Hearing Officer) dated January 25, 2019, by which he found the appellant guilty of misconduct under s. 2(1)(h)(i) A of the Code of Conduct, O.Reg. 268/10 (the Code), under the Police Services Act (the PSA).

2That section provides that an officer commits misconduct if he or she engages in:

(h) Damage to Clothing or Equipment in that he or she,

(i) wilfully or carelessly causes loss or damage to any article of clothing or equipment, or to any record or other property of,

(A) the police force of which the officer is a member…

3In a subsequent decision dated June 18, 2019, the Hearing Officer rejected a joint penalty submission of the loss of 8 hours and instead ordered the forfeiture 16 hours from the appellant’s time bank, other than his sick bank.

4The appellant has appealed both the finding of misconduct and the penalty to the Commission.

Disposition

5For the reasons that follow, the finding of misconduct is confirmed and the penalty is reduced to the forfeiture of 8 hours from the appellant’s time banks, other than his sick bank.

OVERVIEW

6The appellant, on January 4, 2018 at 11:00 a.m. while on duty but not on a call, was involved in a motor vehicle collision with a civilian vehicle at the intersection of Steeles Avenue and Townsend Road in the City of Markham. Traffic control lights at the intersection were functioning at the time but the appellant’s in-car camera was not activated until after the accident.

7The appellant was travelling eastbound on Steeles Avenue and had entered the left hand turn lane in order to turn north into a plaza. At the intersection, there were four lanes for traffic in each direction on Steeles, two for through traffic, one for left hand turns and one for right hand turns. There were two lanes for northbound traffic into the plaza. The speed limit on Steeles was 60 kph and the roads were essentially clear and dry. The weather and visibility conditions were good and did not contribute to the accident.

8The appellant, in a compelled statement given on May 28, 2018, stated that his was the first vehicle stopped in the eastbound, left hand turn lane, with its left turn signal activated. Once the light for his direction of travel changed from green to amber he had a “complete unobstructed view to the intersection” so he proceeded into the intersection. However, he stopped his vehicle as he noticed another car westbound on Steeles that was turning to its right to proceed into the plaza. The appellant had estimated the traffic light for him was amber for about two seconds before he entered the intersection then he was stopped in the intersection for another two seconds, facing north, when he looked to his right and saw an oncoming vehicle, westbound on Steeles approaching the intersection at a high rate of speed. He heard the screeching of tires and braced himself for impact. The right front corner of the oncoming vehicle struck the two doors on the right side of his cruiser.

9The first time the appellant saw the vehicle that struck his was when he was stopped in the intersection and looked to his right, immediately before the impact. He agreed that his view was unobstructed to the east as far as Highway 404 which he estimated was 150-200 meters.

10The appellant initially stated that the other vehicle was in the westbound curb lane when he first saw it then that it must have been partially in both the through lanes. He then gave the following answers during the questioning on May 28, 2018.

Q. Ah, now, when I reviewed Sergeant Rutherford’s report…

A. Um-hmm.

Q. …..he says that you indicated the signal light was amber turning to red at the time of this – this crash.

A. Yes.

Q. So it was amber or was it red at the time of the crash, because it says it’s amber turning, turning to red. So that could mean ah either it was amber and then it became red at the time of the crash, or. So what was your recollection of that?

A. So when I was struck I had no immediate view to the traffic signal.

Q. Um-hmm.

A. I was just looking at the vehicle that was coming towards me.

11Later in the statement, when asked to comment on a section of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) dealing with left turns, his response was “Well, basically, when I made my turn there was no vehicle coming”. When pressed to explain why he didn’t see the other vehicle earlier he stated that it was approaching at a high rate of speed, “at least 80 or 90 kilometers an hour.”

12The Hearing Officer in concluding that the appellant carelessly caused damage to his police vehicle wrote the following:

By law, a left turning driver at an intersection may only complete their turn when it is safe to do so. This obligation remains in place even if the light facing them should turn red. The law does not compel the left turning driver to turn and cause a collision in order to beat the light, it places an onus on the driver to always ensure that the manoeuvre is completed in safety with due regard for other road users. All drivers making a left turn do not have a right of way and may only proceed when it is clear and safe to do so.

It is almost impossible to prove an oncoming vehicle went through a red light without an independent witness, and even so, the turning driver still has the liability as they should have noticed the oncoming vehicle, and whether it was slowing down or not.

13The driver of the other vehicle was not called to testify.

14After the Hearing Officer released his decision finding the appellant had committed misconduct, the hearing reconvened so he could receive submissions on the appropriate penalty. A joint submission was made for the forfeiture of 8 hours. The Hearing Officer was not satisfied that he should accept the joint submission, requested further submissions from the parties which were made and notwithstanding their repeated joint submission, decided to impose a penalty of the forfeiture of 16 hours.

ISSUES

15The appellant raised three issues on this appeal submitting that the Hearing Officer erred in law by:

I) Finding that the appellant’s conduct amounted to carelessness without applying the doctrine of due diligence.

II) Concluding that the evidence met the threshold of “clear and convincing” in finding the appellant guilty of misconduct.

III) Failing to abide by the reasonable joint submission on penalty.

Analysis

16The standard of review applied by the Commission hearing an appeal from a hearing officer is 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 are also to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 53.

17On the issue of penalty, the standard of review is reasonableness. The Divisional Court in Karklins v. Toronto (City) Police Service, [2010] ONSC 747 approved of the following statement from an earlier Commission decision.

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 facts are not considered. This is something not done lightly.

18The first two issues raised by the appellant can be dealt with together as part of the appeal from the finding of misconduct.

19The appellant submits that as the Hearing Officer appeared to be relying on s. 141(5) of the HTA, Left Turn Not in Safety, he should have considered the defence of due diligence, as the HTA offence is one of strict liability.

20The difficulty we have with this argument is that the Hearing Officer was deciding this matter under the Code and not the HTA. We have not been given any caselaw that would suggest that a misconduct charge under the Code is a strict liability offence that could trigger a due diligence defence. It does not appear that the appellant took any issue with the Hearing Officer using the duty on a driver turning left at an intersection as set out in the HTA as a general statement of the law. That duty has long been recognized. In Leis v. Clarke, 2017 ONSC 4360, Justice Leitch wrote the following at paras. 43-44:

As the moving party notes, these provisions of the Highway Traffic Act place a high onus on the driver of a left turning vehicle to ensure that he or she has sufficient time to make the turn without causing an accident. The onus is long-standing and dates back to Payne v. Layne, 1949 Carswell Ont. 187.

Drivers must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances

21That takes us to the second and central issue, whether there was “clear and convincing evidence” that the appellant was careless. In our view, the finding of the Hearing Officer on this point was both reasonable and correct. While the driver of the other vehicle may have been contributorily negligent, that did not excuse the actions of the appellant.

22The appellant entered the intersection on the amber light and then came to stop, straddling the two westbound through lanes. He came to that stop because he saw a vehicle in the opposing turn lane making a right hand turn. He had a clear and unobstructed view, 150-200 meters to the east, of the lanes for oncoming traffic. He never saw the other driver until a moment before the impact. He had a responsibility to ensure that he could complete his turn safely and, as found by the Hearing Officer, he was careless and failed in that responsibility.

23Accordingly, we see no basis for setting aside the finding of misconduct.

24In our view, the penalty appeal should be allowed. The Hearing Officer followed the correct protocol in circumstances where he did not agree with the joint submission. He explained his concerns to the parties and heard their submissions. While it is not our role to reweigh the factors that he took into account in arriving at the ultimate penalty, it appears that he made two errors in principle.

25The Hearing Officer in dealing with “recognition of the seriousness of the misconduct” wrote that the appellant had not acknowledged the findings of misconduct and failed to address the Hearing Officer. He concluded that the appellant was not willing to accept any form of responsibility for his actions and that the failure to do so was a significant aggravating factor. Not acknowledging guilt in these circumstances should not have been viewed as an aggravating factor.

26When the Hearing Officer considered “specific or general deterrence”, he noted that as there were no HTA charges, the appellant did not have to deal with a fine, the possibility of “points” arising from a conviction and the potential of higher insurance rates. Because the appellant did not suffer any of these consequences, the Hearing officer felt that it was necessary to send a clear message to other members of the service as “it relates to accepting responsibility for their actions”. He found this lack of other consequences to be an aggravating factor.

27It strikes us as being antithetical to the principles involved in assessing a penalty for the Hearing Officer to potentially assess a higher penalty because the officer had not suffered other consequences, like an increase in his insurance rates. The lack of other consequences should not have been considered as an aggravating factor.

28These two errors by the Hearing Officer warrant a reduction in the penalty. Taking into account the other penalty factors as considered by the Hearing Officer, a reasonable penalty would be the loss of 8 hours.

ORDER

29Pursuant to section 87(8) (a) of the Police Services Act the Commission confirms the decision of the Hearing Officer finding that the appellant had committed misconduct. The Commission varies the penalty imposed to the loss of 8 hours from the appellant’s time banks, other than his sick bank.