Biring v. Peel Regional Police Service, 2021 ONCPC 2

TRIBUNALS ONTARIO Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO Commission civile de l’Ontario sur la police

Citation: Biring v. Peel Regional Police Service, 2021 ONCPC 2

Date: February 4, 2021

File: 18-ADJ-013

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:

Raj Biring

Appellant

And

Peel Regional Police Service

Respondent

DECISION

Panel: D. Stephen Jovanovic, Associate Chair Katie Osborne, Vice Chair* Maureen Helt, Vice Chair *Ms. Osborne did not participate in the final decision

Representatives: For the Appellant: Clayton Ruby and Stephanie DiGiuseppe, counsel For the Respondent: David Migicovsky and Jessica Barrow, counsel

Place and date of Toronto, Ontario Hearing: November 27, 2019

INTRODUCTION

1The appellant has appealed the decision of Superintendent (Ret.) Robert F. Gould (the Hearing Officer) dated October 31, 2018 by which the appellant was found to have committed Discreditable Conduct contrary to s. 2(1)(a)(ii) of the Code of Conduct under the Police Services Act (the PSA). A second count of Discreditable Conduct was dismissed.

2The first count was described as follows in the Notice of Hearing:

You are alleged to have committed Discreditable Conduct in that on March 25^th, 2016 you used profane, abusive or insulting language that relates to a person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability constituting an offence against discipline, Discreditable Conduct, as prescribed in section 2(1)(a)(ii) of the Code of Conduct, Regulation 268/10, as amended.

3The particulars of the charge, as summarized by the Hearing Officer were as follows:

• March 24, 2016, BIRING conducted a recruitment interview of Mr. Kandola as BIRING liked to interview South Asian candidates. This was not a normal practice at Peel Police Recruitment Bureau.
• BIRING has interviewed approximately 10 South Asian candidates since October of 2015. BIRING does not interview all South Asian candidates.
• BIRING was aware that D/Sgt. Navi Chhinzer was a reference for Mr. Kandola and when he was made aware of this his demeanor changed.
• BIRING interviewed Mr. Kandola and asked about how long he knew D/Sgt. Chhinzer. Then BIRING asked about corruption within policing. BIRING then tried to link Mr. Kandola to criminal activities that were common among South Asian youth.
• BIRING made inappropriate comments about Mr. Kandola’s appearance as a young Sikh and stated in Punjabi “Indian people eat the shit of white people”.
• BIRING told Mr. Kandola that Sikh individuals who wear a turban and trim their beards are a disgrace to the community and religion.
• The comments made by BIRING to Mr. Kandola were insulting and offensive to him, his religion (creed), ethnic origin, and race.

DISPOSITION

4For the reasons that follow, the decision of the Hearing Officer is confirmed.

OVERVIEW

5The hearing lasted twelve days over two years during which 6 prosecution witnesses and 4 defence witnesses, including the appellant, testified. However, the essence of the matter revolved around what the appellant was found by the Hearing Officer to have said during his impromptu meeting with Mr. Kandola on March 24, 2016. The events leading up to that meeting can be briefly stated.

6Mr. Kandola identifies as a Sikh who was passionate about his religious beliefs and wore a turban and trimmed his beard. He successfully went through various steps in the recruitment process with the Peel Regional Police Service (the PRPS) leading up to an in-depth interview with Cst. Rozich, an officer in the Recruitment Bureau, on March 24, 2016

7Following that interview, Cst. Rozich took Mr. Kandola to meet with the appellant who was the Inspector in charge of the Recruitment Bureau. The appellant had previously indicated that he wished to meet all South Asian candidates to test their language skills. Cst. Rozich informed the appellant that Inspector Chhinzer of the PRPS was named as a reference for Mr. Kandola.

8The appellant questioned Mr. Kandola about his relationship with Inspector Chhinzer, who was also South Asian, to the extent that Mr. Kandola thought the appellant was suggesting that Inspector Chhinzer was corrupt. The appellant, when testifying before the Hearing Officer, denied making such a suggestion. However, in cross-examination, the appellant admitted describing Inspector Chhinzer as having a “checkered past” when interviewed by the Ontario Provincial Police officers who had been assigned to the investigation of the complaint filed by Mr. Kandola against the appellant.

9According to Mr. Kandola, the appellant’s questions then turned to drug activity among South Asian youth gangs in British Columbia and in Peel and whether he was involved with gangs or drugs, all of which he denied. According to the appellant, he did ask Mr. Kandola about his knowledge of gangs and drug use in the South Asian community but never accused him of being involved. The differences in their evidence on this point was summarized by the Hearing Officer as follows:

BIRING did ask Mr. Kandola about criminal activity and youth gangs, although he does not recall the exact wording. What differs between the witnesses is the context of the question. BIRING says it was are you aware versus Mr. Kandola saying it was accusing him of criminal activity, gang affiliation and drugs.

10The second comment from the appellant that was the subject of the first count of Discreditable Conduct concerned Sikhs who wear turbans and trim their beards or are clean shaven. Mr. Kandola was adamant in his testimony that the appellant specifically stated that Sikhs who do so are a disgrace to their community. He was offended by the comment which he believed was directly targeted at him.

11The appellant was equivocal regarding what he may have said and his evidence was summarized by the Hearing Officer as follows:

BIRING was asked in Evidence in Chief (Q373), “And did you make any reference to Mr. Kandola’s appearance as a young, Sikh male?” He replied “no, but I have lectured…so I don’t recall having that discussion with him”. Ms. James in Q379 tries to confirm what BIRING had previously testified and asked, “were you trying to offend Mr. Kandola with the references to South Asian Community and Sikh customs, cultures or practices?” BIRING stated, “Anytime I have had any discussions it’s never to offend, but again, I don’t recall those discussions with Mr. Kandola”.

BIRING, in cross examination (page 160, Q706, 707, 708, 712), agreed that he doesn’t remember exactly what he said to Mr. Kandola about his appearance. In reply to Q712, BIRING read from his OPP statement (page 78), “How do you think the views are because we’ve had complaints. So again, that is in the context of I don’t remember speaking to him about that. But this is what I would say”. The Prosecutor read BIRING’S statement to the OPP Investigators (page 82) and noted that BIRING had answered the question with a, “No. I would say the community’s perspective on this…Not my words. These are the community’s words.” BIRING was asked if he was now speculating on what he said (Q715) because he used the words “I would say…” BIRING replied, “I’m not speculating. I’m saying what the area that I have had discussions with hundreds of times in the community with other candidates with people’s complaints being injected into that on behalf of the department. But that would be the context.”

….In Q718, the Prosecutor identifies for BIRING that Mr. Kandola is very clear in saying you did speak about it. In reply BIRING testifies, “And again, that’s a possibility. I don’t recall or remember speaking to him about that.”

12The third comment that is the subject of count one, “Indian people eat the shit of white people” is the English translation of what BIRING said to Mr. Kandola in Punjabi. According to the appellant, although this comment may have sounded offensive in English, it was not in Punjabi. Further, the appellant stated that he was simply explaining what he believed was the community perspective, in order to gauge the reaction of Mr. Kandola. In his OPP interview, the appellant acknowledged that he made such a comment but that he did so to throw Mr. Kandola off from what he perceived to be the rehearsed answers that were being given to other questions. Mr. Kandola maintained that he took these comments as statements that he found to be offensive.

13After this meeting, the appellant requested an Intelligence check on Mr. Kandola, a request he would not make on a candidate in the usual course and used that information to close Mr. Kandola’s application. At different times, he advised the OPP and Cst. Rozich that the file was being closed because Mr. Kandola was being deceptive about an uncle and a Mr. R.K. who lived in India. Deputy Chief of Police Andrews and Inspector English, both of the PRPS, testified that more information would have been required about what and who were mentioned in the Intelligence report to justify rejecting Mr. Kandola’s application.

14The Hearing Officer noted in his decision that the PRPS requires a form to be completed that requires a specific reason for finding a candidate “non-competitive” and that a box on the form is to be checked off if the candidate has been deceptive or failed to disclose relevant information. The box was not checked off and no reason was given to explain why Mr. Kandola was found to be non-competitive.

15The appellant initially denied in his evidence telling Cst. Rozich how to complete the form, but when cross-examined he said that one of them may be mistaken. Mr. Kandola sought a meeting with Cst. Rozich and the appellant to discuss why his application was rejected, but both declined to meet with him. Mr. Kandola then filed a letter of complaint over the actions of the appellant with the Chief of the PRPS, which letter led to the OPP investigation and the misconduct charges.

16The Hearing Officer ultimately concluded that: “The evidence in respect to Count 1 discreditable conduct has been proven on clear, convincing and weighty evidence.”

17The Hearing Officer was quite critical of the conduct of the appellant in his analysis of count 2 of Discreditable Conduct. That charge was under s. 2(1)(a)(xi) of the Code which provides that an officer commits misconduct if he “acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force of which the officer is a member.”

18Excerpts from the decision of the Hearing Officer dismissing count 2 are as follows:

With the interview out of the way, what is now left to substantiate Count 2? The remaining evidence surrounds the closing of the Kandola file. BIRING gave his evidence explaining why the file was closed and was steadfast on that reason. The evidence supported BIRING from Deputy Andrews and Inspector English insofar as he was entitled to make that decision and to make his own query of Intelligence. There was much that I took exception to, from the shoddy records keeping and lack of transparency, to little follow-up on the information from Intelligence. This was troubling to say the least. However, there was no weighty evidence presented to counter BIRING’s decision making, nor were BIRING’s actions shown to be contrary to policy, procedure or practice of the SERVICE.

BIRING is the only officer of the SERVICE who had all the information and had interviewed Mr. Kandola. None of the other witnesses who testified at this Hearing would have had all of the pieces of information BIRING had. I appreciate that Deputy Andrews and other witnesses who testified, when asked by Counsel, would have wanted more information to reject Mr. Kandola. But, in fairness, what they did not have was a window to BIRING’S one on one interview with Mr. Kandola and the concern(s) that that occasion is said to have raised for BIRING.

These issues of process, record keeping, use of non-competitive form, and lack of follow-up are better left for any consideration by the Peel Regional Service as a performance management opportunity or future directive.

The evidence in respect to Count 2 discreditable conduct has not been proven on clear, convincing and weighty evidence.

19We shall now turn to the issues at play in this appeal.

ISSUES

20The issues raised by the parties may be summarized as follows:

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

II. Did the Hearing Officer err in identifying and applying the correct test for Discreditable Conduct under s. 2(1)(a)(ii) of the Code?

III. Did the Hearing Officer err in his credibility analysis?

IV. Did the Hearing Officer apply the correct burden/standard of proof?

ANALYSIS

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

21The standard of review applied by the Commission to a decision of a Hearing Officer is reasonableness on questions of fact and correctness on questions of law: Ottawa Police Service v. Diafwila, 2016 ONCA 627 at paras. 61-63. Questions as to whether the facts satisfy a legal test are questions of mixed fact and law and are also to be reviewed on the standard of reasonableness unless there is an extricable question of law reviewed: Dunsmuir v. New Brunswick, 2008 SCC at para. 53.

22Findings of fact and credibility assessments made by a Hearing Officer are owed particular deference by the Commission: Paige v. Hanover Police Service, 2017 CanLII 36559 (ONCPC): Dickson v. Ontario Provincial Police, 2018 ONCPC 20 and Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

23The identification of the correct legal test for determining credibility and whether the correct test was applied are questions of law and the standard of review is correctness, while the specific findings of credibility are reviewed on the basis of reasonableness: Burrows v. Ontario Provincial Police, 2012 ONCPC 13.

II) Did the Hearing Officer err in identifying and applying the correct test for Discreditable Conduct under s. 2(1)(a)(ii) of the Code?

24The words used under this section of the Code, the use of “profane, abusive or insulting language” are also used in sections 2(1)(a)(iv) (directed to any other member of a police force), and 2(1)(a)(v) (directed to a member of the public).

25The appellant submits that the Hearing Officer effectively ignored these words and instead focused his analysis on whether the words were inappropriate or offensive which he submits set a standard lower than insulting. The appellant further submits that the Hearing Officer was required to consider the potential damage to the reputation and image of the police service should the action become public knowledge. We disagree.

26The Hearing Officer, after concluding that the language alleged to have been used by the appellant was in fact used, wrote at pages 50 and 53 of his decision the following:

I considered a second question – If I place myself as a dispassionate, reasonable, prudent, and informed person, can I ascertain these statements were objectively offensive to contemporary community expectations regardless of the context in which it was asked? I find these statements to be offensive.

It matters not, in my opinion, to a finding of misconduct if BIRING stated the offending comments or if he stated them as if the community was asking the question. When I considered all of the cases, arguments and references provided by the parties, and use my own experience and knowledge, I find the questions were inherently offending, and, because of the identified protected grounds in the OHRC, or which BIRING should be well aware of, were discriminatory and cannot be interpreted as anything else. Mr. Kandola testified that he found these comments offensive and this is an important factor for me to consider.

27The appellant quoted certain dictionary definitions of “insult” and argued that the word depended on the intention of the declarant while the word “offend” depended on the impact of the language on the listener. He further argued that while “all insults are offensive to the recipient, [it is] not necessarily the case that all things which a person might take offence to are, by their nature, an insult. He uses the example of someone not standing for the national anthem which may or not be an insult “depending on the intention of the actor.”

28In our view, the appellant seeks to place too fine a distinction between language that is offensive and that which is insulting. As the respondent points out, the Oxford Canadian Dictionary includes “insulting” in the definition of “offensive”. Mr. Kandola, whose evidence was largely accepted by the Hearing Officer, testified that he found the appellant’s comments to be insulting and discriminatory. At page 53 of his decision the Hearing Officer set out s. 2(1)(a)(ii) and underlined the words “insulting language”. He then wrote:

When I consider this misconduct outlined above, I find it is not complex nor is it open to much interpretation but is very clearly stated. The intention of this misconduct section of the PSA was not a challenge for me to understand.

29Again, in our view, on a fair reading of the decision of the Hearing Officer, for reasons that are fully articulated, he concluded that the words used by the appellant were insulting as that wordterm is used in s. 2(1)(a)(ii) of the Code. There was no need for the prosecution to establish that the appellant intended the words to be insulting as intention is generally irrelevant when considering discriminatory words or actions: Faghihi v. 2204159 Ontario Inc. c.o.b. The Black Swan, 2016 HRTO 1109; Ontario (Human Rights Commission) v. Simpson Sears Ltd., 1985 CanLII 18 (SCC). Nor do we accept that the Hearing Officer was required to consider the appellant’s “legitimate purpose or good faith” in deciding whether the appellant’s language constituted Discreditable Conduct. If intention is irrelevant to discriminatory conduct, so is a suggestion that the insulting words were said in good faith. The words spoken were discriminatory in nature and therefore offensive and insulting.

30The appellant submitted that the Hearing Officer was required to consider the potential damage to the reputation and image of the police service when deciding if the conduct complained of amounted to Discreditable Conduct, citing Saxon v. Amherstburg Police Service , 2011 CanLII 101559 (ON CPC). The Commission has generally not required that the objective test be applied to all categories of prescribed discreditable conduct under s. 2(1)(a), except for a charge under s. 2(1)(a)(xi) which requires the conduct to “likely to bring discredit upon the reputation of the police force”. In Mulville and Azaryev and York Regional Police Service, 2017 CanLII 19496, the Commission set out the test as follows:

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

31However, we note that the Hearing Officer did write that the conduct of the appellant was “objectively offensive to community standards” which, in our view, would certainly be likely to bring discredit to the reputation of the PRPS. Once it is established that the insulting and discriminatory words were spoken it would be axiomatic that the words from a senior officer in charge of recruiting would be likely to bring discredit to the reputation of the PRPS.

32The appellant submits that the Hearing Officer failed to give sufficient reasons when providing his analysis as to whether the language he used in the circumstances of the interview amounted to Discreditable Conduct under s. 2(1)(a)(ii) of the Code. He argues that the Hearing Officer failed to articulate why he found the comments “offensive to contemporary community expectations” and that he failed to appreciate the contextual factors in which the comments were made.

33The Commission, like an appellate court, must take a functional approach to reviewing insufficiency of reasons as a ground of appeal, remembering that reasons need not be perfect. An appeal based on the inadequacy of reasons should only be allowed if the reasons are so deficient as to prevent meaningful appellate review. Chief Justice McLachlin wrote the following in R. V. H.S.B., 2008 SCC 52, at para. 2:

So long as the trial judge fulfills the purpose of giving reasons --- to explain the decision, to provide public accountability and to permit meaningful appellate review --- a court of appeal is not justified in interfering with the verdict on the grounds of insufficiency of reasons. The purposes of giving reasons are fulfilled where the reasons for judgment, read in context, establish a logical connection between the verdict and the basis for it --- in other words, the reasons must explain why the judge made his or her decision. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

34The appellant submits that the Hearing Officer’s reasons had insufficient content to permit the public or the Commission to determine what factors he considered in applying an objective test to consider the appellant’s statements to Mr. Kandola. He also submits that the Hearing Officer failed to explain how he dealt with the contextual factors in finding the appellants words offensive. In our view, there is little doubt as to why the Hearing Officer decided the words used amounted to Discreditable Conduct in the context they were used.

35The appellant, while conducting an informal interview of a South Asian candidate to a multi-cultural police service, told him that some in the community believed that his appearance was a disgrace and others thought his people “eat the shit of white people” and questioned his gang affiliation. He sought to defend his actions by their context.

36After explaining why he found the comments were made by the appellant, the Hearing Officer found they were offensive, discriminatory and, as we have indicated, insulting, on an objective basis. On any fair reading of his reasons, it seems obvious why he drew the conclusions that he did. The comments were offensive by community standards, in the context of a job interview. They were indefensible.

III) Did the Hearing Officer err in his credibility analysis?

37The appellant raises a number of sub-issues under this ground of appeal, submitting that the Hearing Officer:

• applied an uneven standard of scrutiny to the evidence in failing to properly deal with inconsistencies, corroboration and the appellant’s lack of note-taking;
• failed to consider relevant factors and misstated the O’Hallaran test;
• improperly relied on prior consistent statements; and
• resorted to demeanor evidence to believe Mr. Kandola and disbelieve the appellant.

38Before dealing with these sub-issues it is important to note the Hearing Officer’s ultimate conclusion as to the three statements which formed the bases of the finding of Discreditable Conduct. Repeating a quote from his decision, he wrote the following at page 53 of his decision:

It matters not, in my opinion, to a finding of misconduct if BIRING stated the offending comments or if he stated them as if the community was asking the question. When I considered all of the cases, arguments, and references provided by the parties, and use my own experience and knowledge, I find that the questions were inherently offending and, because of the identified protected grounds in the OHRC, of which BIRING should be well aware, were discriminatory and cannot be interpreted as anything else. Mr. Kandola found these comments offensive and this is an important factor for me to consider.

39What the Hearing Officer effectively did was to give the appellant some benefit of the doubt in how the statements may have been stated, i.e., coming from the community and stated as a sort of test of Mr. Kandola, rather than as indicators of what the appellant actually believed. In other words, even taking the best position of the appellant, he still committed misconduct.

40The Hearing Officer did to an extent misstate the O’Halloran test using the word possibilities instead of probabilities. However, doing so was not fatal to the ultimate decision, nor were any of the other sub-issues raised by the appellant. The appellant was not required to prove his innocence, or testify, but in doing so he seriously undermined his own defence. His evidence as to what he said to Mr. Kandola, as pointed out by the Hearing Officer, was confusing, contradictory and changeable. As pointed out above, what he did acknowledge saying was sufficient to establish Discreditable Conduct. The Hearing Officer’s conclusions as to credibility were not devoid of evidentiary foundation.

41For these reasons, although we have considered all of the other sub-issues as to credibility raised by the appellant, we are of the view that none of them assist the appellant in his appeal.

IV) Did the Hearing Officer apply the correct burden/standard of proof?

42The appellant submitted that the Hearing Officer reversed the burden of proof and “implicitly’ applied the lower standard of a balance of probabilities. We are not satisfied that he did. He found that Count 1 had been proven on “clear, convincing and weighty evidence" while Count 2 had not been proven on “clear, convincing and weighty evidence.” Accordingly, he followed the direction from Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 and Jacobs v. Ottawa (Police Service), 2017 ONCA 345.

43Lastly, the appellant submits that the “Tribunal” must apply a modified W.D. standard so the burden of proof does not shift from the prosecution. We see no indication that the Hearing Officer shifted the burden of proof as submitted by the appellant and confirm once again that the approach taken in R. v. W.(D.), 1991 CanLII 93 (SCC) is not one to be followed in police discipline hearings.

44Pursuant to s. 87(1)(a) of the Police Services Act, the Commission confirms the decision of the Hearing Officer and dismisses this appeal.