Krull v. The Ontario Provincial Police, 2021 ONCPC 9

TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Krull v. The Ontario Provincial Police, 2021 ONCPC 9

Date: 2021-08-30

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

Respondent

Between:

Provincial Constable S.F. Krull

Appellant

And

Ontario Provincial Police

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair

Jeanie Theoharis, Vice-Chair

Laura Hodgson, Vice-Chair

Appearances:

James A. Girvin, counsel for the appellant

Adrien Iafrate, counsel for respondent OPP

Place and date of hearing:

Videoconference

April 08, 2021

INTRODUCTION

1The appellant appeals from the decision of Superintendent K.M. Bickerton (the Hearing Officer) dated May 1, 2020, by which he was found guilty of deceit and discreditable conduct contrary to the Code of Conduct, O. Reg. 268/10 enacted pursuant to the Police Services Act) (the PSA).

2In a decision dated August 27, 2020, the Hearing Officer assessed the penalty, ordering that the appellant be demoted from first class to second class constable for a period of 18 months and to complete a training course. This penalty is not under appeal.

Disposition

3For the reasons that follow, the decision of the Hearing Officer is confirmed, and the appeal dismissed.

Background

4The allegations of misconduct and deceit related to the appellant’s behaviour on May 14, 2017, shortly after his wedding the previous day, and at a subsequent investigation. The appellant was found to have inserted himself into the impaired driving investigation of a wedding guest and then lied about his involvement.

5The particulars of the allegations of discreditable conduct were set out as follows in the amended Notice of Hearing:

• PC Krull spoke with the investigating officer (PC1) via cell phone while PC1 was at the detachment conducting a criminal investigation and identified himself to PC1 as Stephen Krull. PC Krull proceeded to ask PC1 for a “three day” in relation to the party under arrest, who was PC Krull’s personal friend PV. PC Krull identified himself by saying “Hey, it’s Krull, you have my buddy there, can you make this a three day?”
• PC Krull spoke with an assisting officer (PC2) via a cell phone while PC2 was at the investigation scene and identified himself as Stephen Krull. PC Krull proceeded to request a “three day” relating to the accused under arrest for care and control. PC Krull identified himself by saying “hey it’s Krull, it’s Stephen Krull, you’ve got my friend there, what’s going on?” “Hey can’t you just make this into a three day and let him go, he was just at my wedding and he is a good friend, c’mon just help him out, a favour.”
• PC Krull provided a phone number to PC1 which was conveyed as and believed to be for a lawyer. PC Krull provided the phone number and a name of Donald as counsel. PC Krull also asked what the grounds for arrest were. PC1 called the number provided by PC Krull and made contact with a male who identified himself as Donald Jackson. The male indicated that he was a lawyer. The number was, in fact, PC Krull’s brother in law’s phone number and he is not a lawyer. PC Krull interfered with a criminal investigation and his actions may negatively impact the outcome.
• PC Krull attended the Caledon detachment and advised PC2 that he was there to lock up a large amount of money that he received from his wedding. PC Krull did not have authorization to do this nor did he speak with a supervisor about the arrangements.
• The accused’s wife was sitting in the foyer at the detachment to wait for her husband who was being processed for a criminal offence. PC2 heard a commotion and banging. PC2 observed PC Krull looking at them rather mad and PC Krull yelled “I am taking my fucking money.” PC Krull forcibly shoved open the secure door area and stormed across the front foyer. PC Krull went past the accused’s wife and slammed through the two-stage glass doors. PC Krull was observed “making a scene” and being quite loud in aggression and display. PC Krull’s demeanor at the detachment was less than professional.

6The particulars of the allegation of deceit were set out as follows in the Notice of Hearing:

• In the early morning hours of Sunday, May 14, 2017, PC Krull was off duty celebrating his wedding. PC Krull engaged in two separate conversations with two OPP officers from the Caledon detachment and attended in person at the detachment during the time in which a personal friend of his, and a wedding attendee, was in custody and being processed for a criminal offence. PC Krull is alleged to have committed the following misconduct:
  • During his interview with Professional Standards Bureau (PSB) investigators he stated that he did not have a conversation with either PC1 or PC2. PC Krull stated that at no time that evening was he on the telephone and he denied asking for any favours on behalf of his friend PV.
  • PC Krull denied giving PC1 the telephone number of his brother-in-law when he was asked for a name and number of a lawyer.
  • PC Krull denied any involvement in the investigation.

7At the outset of the hearing the appellant pleaded guilty to discreditable conduct for his behaviour at the Ontario Provincial Police’s (OPP) Caledon Detachment on May 14, 2017. He admitted to attending the detachment to store a large amount of wedding gift money without authorization and inappropriately slamming doors and swearing. The Appellant pleaded not guilty to the remainder of the allegations.

Hearing Motions

8During the hearing, the appellant brought two motions. One requested the recusal of the Hearing Officer for bias. The other requested production of prosecution witness preparation notes. Both motions were dismissed by the Hearing Officer.

Issues

9The issues to be addressed may be summarized as follows:

I. What is the standard of review?

II. Did the Hearing Officer err in not recusing himself because of a reasonable apprehension of bias?

III. Did the Hearing Officer err in not ordering disclosure of prosecution witness notes?

IV. Did the Hearing officer misapprehend the evidence and err in law in finding the applicant guilty of the charges on clear and convincing evidence?

Analysis

I. Standard of Review

10The standard of review to be applied by the Commission hearing an appeal from 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. Questions as to whether facts satisfy a legal test are questions of mixed fact and law which are also to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Jeremiah Johnson v. Durham Regional Police Service, 2020 ONCPC 3; Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 53. Findings of fact and credibility are generally owed considerable deference by the Commission: Toronto Police Service v. Blowes-Aybar, 2004 CanLII 34451 (ON SCDC).

11When considering issues of procedural fairness, the Commission may consider whether the required elements of procedural fairness in the particular circumstances have been met (see: Forestall v. Toronto Police Services Board, 2007 CanLII 31785 (Ont. Div. Ct.) at para. 38; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at para 49; Brooks v. Ontario Racing Commission, 2017 ONCA 833 at para. 5).

II. No reasonable apprehension of bias

12The appellant filed a motion for recusal alleging that the Hearing Officer had made decisions prior to the commencement of the hearing that demonstrated bias and were contrary to principles of procedural fairness. The Hearing Officer dismissed the motion.

13The appellant submitted that in an August 2018 email exchange, the Hearing Officer placed the onus on the appellant to establish the admissibility of evidence and granted an adjournment without a motion.

14It is not necessary to repeat the emails in full here. In essence, the prosecution had requested a partial adjournment because two prosecution witnesses were not available for some of the scheduled dates. The witnesses, two Professional Standards Bureau (PSB) investigators, were being called solely to introduce an audio recording.

15The prosecution suggested that other witnesses could be called during the August dates and additional dates be set for the hearing of the PSB investigators’ evidence. The appellant did not oppose the adjournment request but submitted, without giving reasons, that the entire matter be adjourned so that it could be completed uninterrupted. Via email, the Hearing Officer indicated that the hearing would proceed as scheduled and, “once we are at the point where the audio recording would be submitted I would like to hear why the authenticity of it is being called into question. If I determine the police witness(es) are required, we will seek additional dates at that time to continue with the hearing”. The appellant responded with additional emails that, among other things, took issue with the Hearing Officer asking the appellant to justify why he was challenging the authenticity of the audio statement.

16At the outset of the hearing on August 13, 2018, the Hearing Officer heard the parties’ submissions on the recusal motion. The Hearing Officer delivered an oral decision dismissing the motion. In the oral decision, the Hearing Officer reviewed the legal test for finding a reasonable apprehension of bias as set out in Committee for Justice and Liberty et al v. National Energy Board et al, 1976 CanLII 2 (SCC). He acknowledged that the use of the term “authenticity” in his email was “unfortunate” but noted that no decision had been made. The Hearing Officer concluded that the motion fell short of establishing a reasonable apprehension of bias.

17Similarly, the Hearing Officer’s written decision notes that it is clear from the emails that no definitive decision was made with respect to the admissibility of evidence. He again acknowledged that his use of the word “authenticity” was “unfortunate”, but held that this did not give rise to a perception of bias or a reasonable apprehension of bias. The Hearing Officer concluded:

Reading the email with an objective eye I do not conclude that the message was bent on a predisposition or ultimate determination on any issue in any manner.

In applying the test referenced similarly in the cited cases: I find a reasonable and informed person, fully appraised of the facts, and upon review of the emails realistically and practically would not conclude that a bias existed nor could they conclude a perception of bias was reasonable.

18The appellant asked the Commission to “disregard in its entirety” the Hearing Officer’s written decision because it “bears no resemblance to his oral decision ….it also does not negate the actual bias that the appellant experienced ….” and is an “ex post facto effort to rationalize an oral decision that was void of evidentiary foundation and woefully absent of legal analysis”.

19We find no basis to disregard the Hearing Officer’s written decision or to vary the decision. While the written decision may be more detailed than the oral decision, having reviewed the transcript of the oral decision, there are no substantive differences of such a nature that would require us to ignore the written decision. In both decisions the Hearing Officer properly canvassed the law, reviewed the appellant’s concerns with respect to the email correspondence and properly, in our view, concluded that the appellant failed to establish a reasonable apprehension of bias. The written decision was not an “ex post facto effort to rationalize an oral decision that was void of evidentiary foundation and woefully absent of legal analysis” as submitted by the appellant.

20The test for reasonable apprehension of bias, as cited by the Hearing Officer, is set out in Committee for Justice and Liberty and is, in part, as follows:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously would not decide fairly?”

21The party alleging bias bears the onus of demonstrating a reasonable apprehension of bias and the threshold is a high one. There is a strong presumption of judicial impartiality and integrity: Ontario Provincial Police v. MacDonald, 2009 ONCA 805. These presumptions apply to Hearing Officers as well as judges. See also Terceira v. Labourers International Union of North America, 2014 ONCA 839 at para. 27.

22The Hearing Officer’s emails relating to the procedural issue of a partial adjournment request and reference to the “authenticity” of the evidence did not demonstrate actual bias or a reasonable apprehension of bias. The Hearing Officer appeared to be trying to proceed with the hearing efficiently and understand the basis for the appellant questioning the authenticity of the recording. The record clearly supports the conclusion drawn by the Hearing Officer that an informed person, viewing the matter realistically and practically would not find that the Hearing Officer, whether consciously or unconsciously, would not decide fairly. The appellant falls well short of rebutting the presumption of impartiality.

III. Disclosure Motion Properly Dismissed

23At the hearing, the appellant questioned a prosecution witness about a preparatory meeting with the prosecution. After prosecution objected, the appellant made a motion for disclosure of notes taken at this meeting and the piercing of litigation privilege. The motion was declined in an oral ruling and written reasons followed. The Hearing Officer found that the appellant failed to establish the relevance of the disclosure sought and failed to demonstrate that litigation privilege should be pierced.

24The appellant again asked the Commission to disregard the Hearing Officer’s written decision as it bore “no resemblance to his oral decision”. The appellant argued that the Hearing Officer erred in dismissing the motion as the disclosure was relevant and litigation privilege did not apply. In our view, there is no basis to not consider the Hearing Officer’s written decision. It is consistent with the oral decision and was correctly decided.

24The Hearing Officer properly noted, citing Cardi and Peel Regional Police Service, 2013 CanLII 101384 (ONCPC), that rules governing disclosure for Criminal Code offences do not apply to disciplinary proceedings under the PSA but that “…procedural fairness and natural justice in police discipline proceedings underscore all procedures and decisions, including those concerning production.”

25The Hearing Officer also reviewed and applied the four-part test for disclosure as set out in West Park Hospital v. Ontario v. Ontario Nurses’ Association, [1993] O.L.A.A. No. 12, a labour arbitration decision. After noting that it addressed pre-trial disclosure of third-party records, the Hearing Officer found the assessment “fitting” writing:

First, the information must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the [Adjudicator] should be satisfied that the information is not being requested as a “fishing expedition”. Fourth, there must be a clear nexus between the information being sought and the positions in dispute at the hearing.

26The Hearing Officer properly concluded that the appellant had failed to establish the relevance of the requested material. There was simply no evidence of new information discussed during witness preparation that justified further disclosure. The Hearing Officer noted the Prosecutor was aware of her professional and legal disclosure obligations. The obligations were not triggered, and the notes did not meet the disclosure threshold.

27The Hearing Officer found that the basis for the request for witness interview notes (i.e., witness possibly changing stories) was, in fact, “highly speculative”. Lastly, the Hearing Officer held there was no clear nexus between the witness interview notes and the appellant’s ability to thoroughly test witness credibility and reliability. Citing Cardi, the Hearing Officer properly found that the appellant was not permitted to “simply rummage around the files of the adverse party to see if a case can be made.”

28The Hearing Officer went on to address the issue of litigation privilege as it related to the requested interview notes. Her reviewed the relevant jurisprudence. In Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, at para.1, the Supreme Court of Canada held that litigation privilege applies to documents created for the dominant purpose of preparing for litigation. The Hearing Officer also noted that litigation privilege allows counsel to “prepare their contending positions in private, without adversarial interference and without fear of premature disclosure”, citing Blank v. Canada, 2006 SCC 39 at para. 27. The Hearing Officer concluded that the notes from and discussions during witness preparation were covered by litigation privilege and the appellant failed to identify any basis for piercing that privilege.

29The Hearing Officer’s conclusion that the appellant did not meet the necessary relevance threshold for disclosure was reasonable. The request for interview notes amounted to a “fishing expedition” and was properly dismissed. Further, the Hearing Officer also correctly concluded that the requested notes were protected by litigation privilege. The prosecution interview notes were clearly created for the dominant purpose of preparing for litigation. The appellant failed to establish an exemption to litigation privilege that would justify production of these notes. The appellant did not provide us with any authority that litigation privilege was not properly asserted or that there was any basis to establish an exemption to the privilege.

IV. No Misapprehension of Evidence or Error in Law

30The appellant submits that the Hearing Officer erred in law and misapprehended the evidence in finding the appellant committed discreditable conduct and deceit. The appellant seeks, in many ways to re-litigate the hearing. We find no basis to disturb the Hearing Officer’s findings of guilt. In particular, the appellant submits the following errors were made.

a) Reliability of Voice identification and Burden of Proof

31Central to the finding of guilt for discreditable conduct was the evidence that, on the night of his wedding, the appellant called two police officers. He had called to ask for a lenient “three day” administrative license suspension for one of his wedding guests who had been stopped by the officers for allegedly impaired driving.

32At the hearing, the two officers testified that the appellant was the caller on the night in question. This was based on his self identification and their recognition of his voice. The appellant denied he was the caller and, throughout the course of the proceedings, suggested that someone else had called the police, impersonating him. The Hearing Officer ultimately accepted the evidence of the two officers who identified the appellant as the caller and testified that he requested leniency with respect to his wedding guest.

33The appellant asserts that the Hearing Officer failed to properly assess the reliability of the evidence that it was the appellant who called the two officers and attempted to interfere with their criminal investigation. This assertion is not borne out in the Hearing Officer’s reasons.

34The Hearing Officer exercised caution throughout his thorough assessment of the evidence before him. He reviewed the relevant jurisprudence with respect to voice identification evidence and noted:

I am mindful of the inherent frailties of identification evidence whether it be visual or auditory or a combination thereof. I am aware that in the annals of criminal jurisprudence the delicate nature of identification evidence has been extensively acknowledged, analyzed and considered. (Reasons, p. 40).

35In our view, the Hearing Officer properly identified the difference between credibility and reliability noting that “It is possible that a credible witness may give unreliable evidence”. The Hearing Officer ultimately concluded that both police officers provided reliable evidence that the individual they spoke with on the night in question was, in fact, the appellant. In his reasons, the Hearing Officer thoroughly reviewed the evidence of both officers, noting their past and subsequent interactions with the appellant, that the caller self-identified, spoke with ‘a degree of familiarity’ and used police jargon. The Hearing Officer’s conclusion that it was the appellant who spoke to the two officers on his wedding night was reasonable, available on the evidence and is entitled to deference from this Commission.

36The appellant also submits that, in assessing the reliability of the evidence, the Hearing Officer “stepped into the witness box to create his own evidence”. At the hearing, counsel for the appellant noted that no description of the appellant’s voice was provided by the witnesses. In his reasons the Hearing Officer noted:

PC1 was not able to specifically or with great detail describe PC Krull’s voice. I turned my mind to being asked to describe another person’s voice. I assumed the perspective of trying to describe the voice someone I knew well. While anecdotal, I found it very difficult to describe in detail the voice of even someone I have known for a long time and had many conversations with. Unless there was something distinctive like an accent, a remarkable pitch or tone, or some other marked variation that would allow me to be descriptive, my description would be quite brief. I note that PC1 did not have many conversations with PC Krull and none on the telephone prior to May 14, 2017. I do not conclude that this would preclude him from being able to identify PC Krull. PC1 could not elaborate in describing PC Krull’s voice. PC Krull testified before me. I did not detect any manner of his speech that I would consider remarkable or distinctive. (Reasons p. 46)

37The appellant pointed to this passage to suggest that the Hearing Officer used his “newly created evidence” to “corroborate and rehabilitate the deficiencies” in the reliability of the voice identification evidence. There is no merit to this submission.

38The Hearing Officer simply applied a logical analysis to assess the significance of a witness not describing the appellant’s voice. The Hearing Officer ultimately concluded that the witness’ inability to specifically describe the appellant’s voice did not impact the reliability of their evidence.

b) No Adverse inference

39The appellant submits that the Hearing Officer dismissed the “gross deficiencies” in the investigation and failed to consider the issue of “impersonation”. He suggests that the Hearing Officer misapplied the principle of “adverse inference.” These submissions flow from the fact that, at the hearing, the prosecution did not summons certain wedding guests to testify.

40As noted by the Hearing Officer, these wedding guests had been either unwilling to cooperate with investigators or could not be contacted. The Hearing Officer observed that, “PC Krull’s relationship with these witnesses placed him in a unique position to attempt to facilitate their cooperation. PC Krull could have asked them to cooperate directly, through his counsel or through PSB.” (Reasons, p.43).

41The Hearing Officer, however, ultimately concluded that he could not draw an adverse inference against the appellant for not facilitating contact with his family members and wedding guests. The Hearing Officer reviewed the case law. He specifically noted the risk of “putting on the accused an onus inconsistent with the presumption of innocence”. The Hearing Officer further noted:

I interpret the jurisprudence to indicate that adverse inferences can be drawn against either party in a proceeding. Caution should be exercised in creating a situation where the presumption of innocence is eroded and not place an obligation on the accused or defendant to prove their innocence. I am completely aware that the prosecution has the responsibility to prove their case and there is no obligation on PC Krull to prove his innocence. (Reasons, p.43).

42The appellant asked the Hearing Officer to draw an adverse inference against the prosecution for their failure to call these witnesses. The Hearing Officer refused to do so. As noted by the respondent, the prosecution has no duty to call witnesses and it is the prosecution’s discretion as to how to best present its case (see R. v. Cook, 1997 CanLII 392 (SCC) and R. v. Ellis, 2013 ONCA 9 at para 44.). The respondent had no duty to advance theories or defences on behalf of the appellant. Simply put, the Hearing Officer was satisfied that the appellant and not some unidentified person made the calls to the investigating officers.

43The Hearing Officer clearly recognized that it was open to either the appellant or the respondent to call the wedding guests as witnesses and neither did so. After assessing the evidence and the jurisprudence, he concluded that no adverse inference would be drawn against either party. The Hearing Officer was cognizant throughout his decision that the burden was on the prosecution to establish the applicant’s guilt. He neither improperly placed a burden on the appellant nor improperly failed to draw an adverse inference against the prosecution.

c) Reasonable Findings re Deceit

44After concluding that the appellant improperly asked police officers to be lenient with his wedding guest, the Hearing Officer found that the appellant later lied to PSB investigators about this conduct. The appellant argues that the Hearing Officer erred in his assessment of the appellant’s evidence and finding that he had a motive to be dishonest with the PSB investigation so as to avoid consequences for his misconduct.

45In his reasons, the Hearing Officer observed that “PC Krull made statements that either gave me pause or that I found, in some cases did not ring true” and provided numerous examples (see Reasons, p. 48 – 50). He concluded, “I find PC Krull lacking in credibility and reliability”. With respect to the deceit charge, the Hearing Officer noted the appellant had indicated to PSB investigators that he was still “working off hours” from a previous disciplinary matter and “wanted to keep his nose clean” (see page 48). If the appellant’s motivation was necessary to establish guilt, which it was not, his own comment provided the basis for the inference the Hearing Officer drew about motive.

46It was reasonable and available on the evidence for the Hearing Officer to find that, with respect to the charge of deceit, the appellant’s motivation to lie was to evade disciplinary consequences. The Hearing Officer was best placed to assess the witnesses. His conclusions are reasonable, available on the evidence, entitled to deference, and raise no basis for us to interfere.

ORDER

47Pursuant to section 87(8) of the Police Services Act, the Commission confirms the decision of the Hearing Officer.