Morris v. Toronto Police Service, 2021 ONCPC 7

TRIBUNALS ONTARIO

Ontario Civilian Police Commission

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

Citation: Morris v. Toronto Police Service 2021 ONCPC 7

Date: 2021-08-17

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

Between:

PC Mandy Morris

Appellant

and

Toronto Police Service

Respondent

and

The Independent Police Review Director

Intervener

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair Laura Hodgson, Vice-Chair Maureen Helt, Member

Appearances:

David Butt, counsel for the Appellant Jerry Leung, counsel for the Respondent Pamela Stephenson Welch, counsel for the Intervener

Place and date of hearing:

Videoconference – Toronto, Ontario October 21, 2020

Introduction

1This appeal arises from the decision of Acting Superintendent Richard Hegedus (the Hearing Officer) dated July 22, 2019 where he found the appellant guilty of one count of discreditable conduct contrary to s. 2(1)(a)(xi) of the Code of Conduct under the Police Services Act (the PSA).

2The appellant, Sgt. Mandy Morris, was one of four officers who responded to a radio call on October 4, 2014 about noise emanating from an apartment on Jane Street in northern Toronto. All four of the officers were charged with discreditable conduct with one of the officers also charged with the use of unnecessary force against a person in the execution of duty. The appellant was the only officer found guilty as the charges against the others were dismissed.

3The Notice of Hearing and Statement of Particulars on the discreditable conduct charges against all of the officers read as follows:

Notice of Hearing: You are alleged to have committed misconduct in that you did act in a disorderly manner or a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force, contrary to Section 2(1)(a)(xi) of the Schedule Code of Conduct of Ontario Regulation 268/10 and therefore, contrary to Section 80(1)(a) of the Police Services Act, R.S.O. 1990 as amended.

Statement of Particulars: Being a member of the Toronto Police Service attached to 31 Division, you were assigned to uniform duties. On Saturday October 4, 2014 you were on duty. Your responded to a radio call for a noisy party at 4500 Jane Street, Apartment 1402, in the City of Toronto.

In the course of responding to that call you unlawfully entered Apartment 1402.

In so doing 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 service

4The Hearing Officer succinctly summarized the evidence and the essence of the issue before him at page 32 of his decision where he wrote the following:

The evidence is in relation to the radio call for a noise complaint (Exhibits 24, 25); the officers encountering loud music; receiving no response at the door after repeatedly knocking; the occupants being aware of the police presence and ignoring them; and officers waving at the peephole when an unknown person looked out. Officers subsequently looked into the apartment through the mail slot as Constable Vo propped it open with his baton. He struggled to regain control of his baton and pulled it back through the door to retrieve it. There was discussion amongst the officers during the events, and Sergeant Morris indicated the location on the door where Constable Hudson should focus his energy. Those things were clear and the issue to be decided is not what occurred but rather, whether the officers were justified in forcing open the door and entering the apartment in the circumstances.

5The Hearing Officer found that the actions of the officers in forcing open the door to the apartment to gain entry were not lawful. He then went on to consider if the unlawful entry satisfied the test for discreditable conduct and concluded that it did, but only as against the appellant. The basis for this conclusion was the appellant’s acknowledgement that as the supervisor on the scene, she was responsible for the actions of her subordinates. She had indicated to the other officers that entry to the apartment was the course of action to take and that it was reasonable for them to rely on her decisions.

DISPOSITION

6For the reasons that follow, the decision of the Hearing Officer is confirmed and the appeal is dismissed.

Overview

7This matter began with what appeared to be a routine call to the respondent from a tenant of the apartment building located at 4500 Jane Street complaining about the excessive noise (music) from another apartment. There appears to have been a history of similar complaints about the same apartment.

8The appellant, along with officers Hudson, Pathak and Ho, attended the apartment and heard the music. Ms. Rajpaul, one of the tenants and the public complainant, heard knocking on the door, knew that the police were there, but decided to ignore them. Despite the escalating knocking on her door, Ms. Rajpaul refused to acknowledge the presence of the police because she was “tired of being harassed”. She acknowledged that the police had attended her apartment five or six times previously for noise complaints.

9As the appellant and the other officers were being ignored by the occupants of the apartment and the music was turned up even louder, Constable Vo decided to prop open the mail slot on the door with his baton. Ms. Rajpaul’s husband, identified as “Larry” grabbed the baton and after a brief struggle, Constable Vo was able to pull it back out of the slot. The appellant had a discussion with the other officers about the possible need to enter the apartment and went so far as to instruct Constable Hudson on how he should kick in the apartment door. A hallway video showing the officers was viewed by the Hearing Officer.

10Before doing so, the officers were aware that there was a child lying on a couch in the apartment who appeared to be oblivious to their presence or what was happening around him. However, they did not forcibly enter the apartment until after the struggle with the baton occurred.

11According to Ms. Rajpaul, when the officers forced their way into her apartment, Constable Hudson picked her up by the throat, choked her, told her to “shut-up bitch” then threw her first against a wall then the floor causing her some injuries.

12The Hearing Officer found that Ms. Rajpaul’s answers to questions were evasive and self-serving and that her evidence was neither credible nor reliable. However, he noted that the count of discreditable conduct was not dependent on most of her evidence as the principal issue was whether the appellant and the other officers were justified in forcing open the door and then entering the apartment in the first instance.

13The Hearing Officer framed the issue before him as follows:

The testimony of Sergeant Morris and Constable Hudson indicated that the option to depart the location without taking further action, after having made observations in the apartment, and after Constable Vo struggled to retain possession of his baton, was not appropriate in the circumstances. I concur. However, the question remains, were the steps they took in the circumstances both lawful, and not likely to bring discredit upon the reputation of the Service?

14The answer to that question is, at least in part, determinative of this appeal.

Issues

15The appellant, in her factum, submitted that the Hearing Officer made five errors of law and that accordingly, the standard of review to be applied to his decision is correctness. The alleged errors are as follows:

The Hearing Officer erred in law by misapplying the test for discreditable conduct in the circumstances of this case and in particular,

• He inappropriately focused on the intention of the occupants rather than the officers.

• He overlooked evidence that refuted his analysis of the occupants’ intention.

• He erred by later shifting his analysis to minimize the impact of his oversight.

• He erred in second guessing the officers’ conduct with the benefit of hindsight.

The Hearing Officer erred by rendering legally inconsistent verdicts.

16We shall deal first with the standard of review, then whether the actions of the appellant satisfied the test for discreditable conduct, followed by a consideration of the purported errors of law made by the Hearing Officer and finally whether the decision to acquit three of the officers and convict the appellant constituted inconsistent verdicts that require the setting aside of the appellant’s conviction.

The Standard of Review

17The 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 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.

18Findings of fact and credibility assessments made by a hearing officer are owed particular deference by the Commission: Biring v. Peel Regional Police Service, 2021 ONCPC 2 at para. 22.

The Test for Discreditable Conduct

19The Hearing Officer accepted that the test for discreditable conduct was set out in Girard v. Delaney, (1995) 2 P.L.R. 337 (Board of Inquiry), and comprised the following five components:

• The test is primarily an objective one.

• The Board must measure the conduct of the officer by the reasonable expectations of the community.

• In determining the reasonable expectations of the community, the Board may use its own judgment, in the absence of evidence as to what reasonable expectations are. The Board must place itself in the position of the reasonable person in the community, dispassionate and fully apprised of the circumstances of the case.

• In applying this standard, the Board should consider not only the immediate facts surrounding the case but also any applicable rules and regulations in force at the time.

• Because of the objective nature of the test, the subjective element of good faith (referred in the Shockness case) is an appropriate consideration where the officer is required by the circumstances to exercise discretion.

20There is no dispute among the parties that the foregoing components comprise the test for discreditable conduct. Fundamental to the Hearing Officer’s conclusion that the appellant was guilty of discreditable conduct was his finding that the forced entry by the officers into the apartment was unlawful. If the entry was lawful, there could be no finding of discreditable conduct.

21The Hearing Officer considered the following two-part test set out in R. v. Dedman, 1985 CanLII 41 (SCC) to determine whether the warrantless entry was lawful:

a) Did the conduct of the officers fall within the scope of any duty imposed by statute or recognized at common law?

b) Whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty?

22As there was no statute authorizing the warrantless entry, the Hearing Officer then considered the common law duty of police to protect life and citizen safety and whether exigent circumstances existed that justified the entry. He wrote the following at pages 34-35 of his decision:

In this case, the officers had an initial duty to deal with the noise disturbance and to keep the peace for other apartment residents. Based on what they observed at the location, they became aware of an additional duty to ensure the safety of a child in the apartment. In order to perform all of those duties, it was necessary to communicate with the occupants. They were frustrated in those duties by the actions of the occupants in not answering the door and refusing to communicate with the officers. It became necessary to remain at the scene for them to perform their duties.

The final part of the “Waterfield Test” is the question; were the actions of the officers reasonable? I answer that in the negative. I find it was unreasonable to kick open the door based on what they were faced with at that moment. Despite the testimony of the officers there was no evidence of any discernable emergency. They were faced with a child who was not acknowledging their loud knocking on the door and who was not looking in their direction. I was not presented with any indication that the child was in need of protection or that the safety of the child was at issue.

…..When the officers looked through the mail slot, they could see the child and other than not acknowledging them, the officers fairly conceded that the child didn’t appear to be in distress. They acknowledged that at that point, there was no reason to make a forcible entry. As was noted in Magda and Sheppard and Metropolitan Toronto Police, it is the belief of the police officer in light of the circumstances that must be considered, however, prior to Constable Vo having to struggle for his baton, the belief of the officers did not warrant a forced entry to the apartment.

As the officers were considering their next steps and a struggle ensued for Constable Vo’s baton, that did not change the circumstances of the child and I ask how an emergent situation was thus created? The door was forced open almost immediately afterwards. There was no emergency to begin with and other than the officers being unable to determine why the child was not responding to them, they could see the child was not in any emergent situation.

23The conclusion of the Hearing Officer that there was no emergent situation necessitating a warrantless entry into the apartment was one we find was open to him to draw on the facts. Once he so concluded, it was also open to him to find that the forced entry constituted discreditable conduct. This was a question of mixed fact and law and we cannot say that it was unreasonable, unless it was vitiated by virtue of one of the errors he made, as submitted by the appellant.

The Purported Errors of Law by the Hearing Officer

24The appellant submitted that the Hearing Officer “inappropriately” focused his analysis on the intention of the occupants of the apartment rather than the knowledge of the officers leading up to their forcible entry. The Hearing Officer did consider whether the occupant who grabbed Constable Vo’s baton may have committed a criminal offence. In reviewing the transcript of the submissions made by counsel, we note that counsel for Officer Vo specifically argued that the actions of Larry in grabbing the baton, which she characterized as a weapon, constituted the offence of disarming a police officer under s. 270.1 of the Criminal Code. The Hearing Officer wrote: “I address the submissions of Ms. Mulcahy and ask myself, did Larry commit a criminal offence by trying to disarm a police officer?” The Hearing Officer can hardly be faulted for addressing one of the submissions made by counsel.

25In our view, even if we were to accept that this part of his analysis was irrelevant to the issues the Hearing Officer had to decide, this would not change the ultimate result. The Hearing Officer did examine what the officers knew at the time of their entry into the apartment and concluded that no emergent circumstances existed. This conclusion was the foundation of his ultimate decision and we disagree that his comments about the intentions of the occupants amounted to an error of law that could invalidate his finding as to the unlawful entry.

26The Hearing Officer did make an error when he wrote that there was no evidence that the occupants of the unit knew that the foreign object inserted through the mail slot was the baton of one of the officers. That error was compounded when the hearing Officer wrote:

There was no evidence presented to indicate that Larry was aware at the time that the object which protruded through the mail slot was potentially a weapon or even the property of the police. I do not see the action of pulling on an unknown object that was being pushed through one’s door as an attempt to disarm a police officer, especially in light of the unlikely possibility that the apartment occupants could see through a solid door and know what the object was.

27In the words of the appellant:

Furthermore, this erroneous misapprehension of the evidence played an important causal role in the Hearing Officer’s analysis. If we remove this dark chunk of error-infected reasoning from the Hearing Officer’s analysis what remains is unsustainable.

28This error was brought to the attention of the Hearing Officer during the penalty phase of the hearing and he wrote the following:

I thank Mr. Butt for bringing to my attention the error that I made in my judgement decision. In my analysis, I failed to take into account that portion of Sergeant Morris’ testimony where she described Larry’s acknowledgment that he knew he was pulling a baton and that she had cautioned him about his actions. I accept that Larry knew that the object he was pulling on through his door was a baton and that he had been cautioned for taking that action once the officers had the opportunity to speak with him…

29The Hearing Officer made the comment in para. 26 above when addressing the submission of counsel for Officer Vo that Larry committed the Criminal Code offence of disarming a police officer. Earlier in his decision he acknowledged that Larry “likely” attempted to take the baton and that Officer Vo had to struggle with him to retain possession.

30The Hearing Officer, in the merit’s decision, wrote: “For the purpose of this decision, I proceed with the acceptance that Larry tried to pull Constable Vo’s baton away.” He then went on to consider whether the action of pulling the baton changed the circumstances the officers faced writing the following at pages 36 and 38 of the decision:

Even though the situation had not been resolved, the circumstances had not materially changed after Constable Vo was able to recover his baton. I do not agree that it had then become an emergency. The officers were still in the hallway and were faced with loud music coming form a closed apartment. The occupants would not acknowledge them, including a young child who was seated in the apartment who also would not acknowledge them. They were separated from the occupants by a locked apartment door and Constable Vo again had possession of his equipment. At that point, the officers were back to the circumstances where they initially looked through the mail slot. It was time to take a step back and consider their next course of action.

In examining this matter from an objective viewpoint, I do not find support for the contention that the circumstances became an emergency after Constable Vo struggled for his baton and that the door needed to be forced open because of a public safety concern. Though the community expects police officers to ensure public safety, the community would also not expect police officers to force open the door to their home in similar circumstances.

31Based on the foregoing, we are satisfied that notwithstanding the mistaken comments by the Hearing Officer about the evidence of struggle for the baton, he did analyze the actions of the appellant and the other officers by first accepting that the struggle in fact took place. Whether Larry knew that he was pulling on an officer’s baton was of little consequence in nay event. His comments during the penalty phase of the hearing must be viewed in connection with his decision on the merits.

32Nor do we accept that the Hearing Officer erred by second guessing the actions of the officers, including the appellant, with the benefit of hindsight. His reasons, read as a whole, indicate otherwise.

33Although we may have decided the issue of a potential emergency differently, we cannot say that his conclusion that there was no emergency justifying a forcible entry was unreasonable.

The Inconsistent Verdicts

34The appellant submits that there was no rational or logical basis for distinguishing the actions of the three officers who were acquitted from those of the appellant and therefore the Hearing Officer rendered inconsistent verdicts requiring that we allow the appeal. We disagree.

35The appellant and the respondent both cite the decision of R. v. Pittiman, 2006 SCC. as being supportive of their positions. The respondent’s position is that the supervisory role of the appellant in the incident provided the objective evidentiary basis for the Hearing Officer to find that there was stronger evidence of misconduct by the appellant than the other three officers.

36The appellant concedes that there was evidence that she did discuss the location and the manner in which Constable Hudson should breach the apartment door but submits there was no evidence that she actually ordered him to do so. The respondent notes that the video shows Constable Hudson kicking the door seven times without any intervention from the appellant. The respondent sets out the following excerpts from the examination-in-chief of the appellant:

So I um, I now believe that forced entry is required, Um, and-, and so does my whole team. I – Thao Vo gets his baton out and um, under my direction from earlier conversations – minutes earlier um, Constable Hudson kicks the door.

Hudson did exactly what I directed him to do moments earlier – minutes earlier, not moments. Um, and um, and as a supervisor, if I didn’t want him to do that or didn’t want him to continue, I would’ve told him to stop, but that wasn’t the situation. We needed to make entry.

37The Hearing Officer concluded that the door was kicked open at the direction of the appellant who acknowledged that she was the supervisor at the scene and was responsible for the actions of her subordinates.

38The test for assessing whether verdicts between co-accused are inconsistent is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge: see Pittiman and R. v. Gager, 2020 ONCA 274. Here, obviously there was no jury.

39We are satisfied that the evidence of the appellant herself established the basis for the Hearing Officer arriving at different conclusions as to her having committed misconduct while finding that the other officers had not.

ORDER

40Pursuant to section 87(8) of the Police Services Act, the Commission confirms the decision of the Hearing Officer.