TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, 2023 ONCPC 13

Date: 2023-02-24

File: 22-ADJ-002

Between:

Constable Bernard Trlaja

Appellant

and

Peel Regional Police Service

Respondent

DECISION

Panel:

Emily Morton, Vice Chair Laura Hodgson, Vice Chair Louise Charette, Member

Appearances:

Joanne Mulcahy, counsel for the appellant Keegan Soles, counsel for the respondent

Place and date of hearing:

Videoconference - Toronto, Ontario December 1, 2022

INTRODUCTION

1This is an appeal from the November 25, 2021, decision of Retired Superintendent Robert Gould, the hearing officer, finding the appellant, Constable Bernard Trlaja, guilty of one count of misconduct contrary to s. 2(1)(a)(xi) of the Code of Conduct, O. Reg. 268/10 under the Police Services Act R.S.O. 1990, c. P.15 (“PSA”). On April 15, 2022 the hearing officer ordered the appellant demoted from the rank of First to Second Class Constable for 18 months. The appellant appeals from the finding of guilt only.

DISPOSITION

2The appeal is allowed.

FACTUAL BACKGROUND

3The complainant, a civilian employee of Peel Regional Police Service (PRP), rode along with the appellant in his service vehicle on June 27, 2018 as part of her mandatory training. The count of misconduct relates to what transpired while they were in the vehicle together. The complainant alleged the appellant made racist and sexually suggestive comments and gestures. The complainant disclosed the allegations some months later during a training session. The PRP served the appellant with a notice of hearing on June 5, 2019 and the hearing was held over four days in August and September of 2021. The appellant and complainant were the only witnesses.

Complainant’s Evidence

4The complainant began employment with the PRP in March of 2018 as a contract civilian in communications. She had to complete five mandatory ride-along sessions with an officer for a minimum of eight hours each. She joined the appellant for a ride-along at 6:00 p.m.

5The complainant testified she and the appellant engaged in light conversation at the beginning of the shift. She stated that after completing the first call for service, the appellant saw an elderly Chinese man crossing the road and was laughing and yelling saying “oh yeah, my buddies and I made fun of them” ...” they love when I do this”... “China”. The complainant testified she brushed off the comment and the appellant told her to take it easy.

6She testified that later in the shift while they were in the vehicle, the appellant mentioned he was single, and the complainant related she lived with her boyfriend. She had her phone out and, in reference to a picture of the complainant’s friend on her phone, the appellant said the friend was “well endowed” which she understood as a reference to her breast size. He then talked about seeing a “well endowed” woman while at a bar with his friends. She testified “at this point it is getting awkward.” According to the complainant, conversation topics turned to personal issues such as religious affiliation and relationships. She testified that at some point she said to him she could not have children and the appellant said he thought women who do not have children are selfish.

7The complainant testified the appellant commented he had not had sex for a while, then gestured with his index and middle finger, saying “do you mind if I stick it down your pants and have a sniff.” She also recalled he had called her “hot” during the ride-along. She testified she felt very uncomfortable and asked him to take her back to the station. The appellant dropped her off near midnight, two hours before the end of her training shift. She confirmed she left the station in her vehicle a couple of minutes after midnight and at no time earlier had asked to be released early from this shift.

Appellant’s Evidence

8The appellant testified and denied making any of the inappropriate comments or gesture that formed the subject matter of the misconduct count. He testified that at the beginning of the shift the complainant said she wanted to be back at the station by midnight. He testified he and the complainant had conversation in the vehicle about food, religion, families, having children and musical tastes. He denied making a disparaging remark about women who choose not to have children. He also denied making any comment about making fun of Chinese people or saying “China” to a pedestrian.

9The appellant’s evidence was the complainant showed him pictures of a friend of hers, but denied he said she was “well endowed” or spoke about a woman at a bar also being well endowed. He denied commenting on the complainant’s attractiveness or making the gesture with his fingers and asking if he could stick his fingers in her pants. He said he found the thought of smelling his fingers after inserting them in a vagina “disgusting” or “revolting.” He testified he asked the complainant at 11:45 p.m. if she would like to be taken back and dropped her off and returned to service himself at 12:02 a.m. He testified their parting was amicable; she thanked him for the ride and he said “take it easy.”

Non-Testimonial Evidence

10In addition to the witness testimony, the hearing officer received a variety of exhibits at the hearing that each party relied on to establish the reliability of their own evidence and undermine the consistency or plausibility of accounts of the other witness. For example, the hearing officer viewed video evidence of the witnesses entering or exiting the vehicle at the station which the defence relied on as evidence the complainant had a happy demeanour at points in the shift. The parties also relied on timekeeping records to establish when the complainant began and ended the ride-along, call histories and global positioning system data about the path of the police vehicle on the night of June 27, 2018.

11Featured among the documentary evidence was a record of several CAD messages exchanged between the complainant and the appellant on July 6, 11, 12, 28 and 30, 2018. It was uncontroversial the messages are conversational in tone and not work related. The complainant conceded she initiated the CAD messaging on each occasion. The complainant testified she initiated the messages to see if the appellant would “say anything” because “if I was going to report it, I needed something to go off of because I didn’t want people to question me and say well – I want to know that it actually happened.”

12A significant portion of the cross-examination of the complainant focused on the content and tone of the CAD messages. The complainant was asked about messages in which she inquired about the appellant’s personal life, wrote with positive and humorous terms about their time together on the ride-along and referred to him affectionately. The complainant continued to maintain she engaged the appellant in these messages to see what he would say and, at other points, maintained she engaged in this type of conversation out of fear for losing her job or to “sweep it all under the rug.”

Hearing Officer’s Reasons

13The hearing officer concluded his core task was to assess the credibility of the complainant and the appellant. He held there was little in the documentary or video evidence filed that corroborated witness’ accounts in a material way. One exception was documents that confirmed the complainant’s account she left the ride-along early without making a prior request to do so. He found this was probative that “something happened” during the ride-along itself to cause her to leave early that night.

14Otherwise, the hearing officer’s reasons reflect an analysis of the credibility of the two witness’ hearing testimony. He instructed himself to apply the factors in Faryna v. Chorny, 1951 CanLII 252 (B.C.C.A.) and, ultimately, decided the complainant was credible while the appellant was not. Alleged errors the hearing officer made in conducting this credibility analysis are central to this appeal.

15The hearing officer decided he would not consider in any detail the impact the CAD messages had on either witness’ credibility. He held they were of limited value because he accepted the complainant’s evidence that she initiated and maintained contact with the appellant to see if he would say anything else inappropriate. He also found the CAD messages had limited value to assessing witness credibility as they took place after the alleged misconduct and the content of the messages did not touch upon what happened during the ride-along. The hearing officer’s approach of setting aside the CAD messaging in his credibility analysis forms another argument on appeal.

ISSUES AND ANALYSIS

i) The Standard of Review

16the standard of review applied by the Commission when considering an appeal from the 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 and are to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Floria v. Toronto Police Service, 2020 ONCPC 6; Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 53. Findings of fact and credibility assessments made by a hearing officer are owed particular deference: Toronto Police Service v. Blowes-Aybar, 2004 CanLII 34451 (Ont. Div. Ct.).

II) Issues on Appeal

17The appellant raised a number of issues in the notice of appeal and written and oral submissions before the Commission. The Commission has determined the appeal must be allowed on the basis that the hearing officer made numerous errors in his application of the standard of proof and his assessment of the CAD messaging. It is therefore not necessary to address the other issues raised by the appellant.

i. The Hearing Officer Reversed the Burden of Proof

18The appellant submits, and the Commission agrees, that the hearing officer’s reasons disclose that he shifted the burden of proof to the appellant. It is uncontroversial the respondent bore the burden of proving the count of misconduct on clear and convincing evidence, a higher standard for the prosecution to meet than a “balance of probabilities”: see Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 at para. 60.

19At the hearing, the parties directed the hearing officer to the authorities describing the correct application of this standard. In the opening paragraphs of his analysis, the hearing officer reminded himself this is the standard to be applied and wrote “[t]he evidence must be weighty and reliable in order that it would convince me, acting with care and caution, that the allegation is true, and I can come to a fair and reasonable conclusion that the misconduct is proven.”

20Despite this correct self-direction on the standard of proof at the outset of his analysis, the hearing officer committed a number of errors when actually applying the principles to his credibility analysis. The Commission finds these are legal errors that are sufficiently significant to undermine the credibility analysis altogether. As a result, the finding of misconduct, which is based entirely on the complainant’s evidence, cannot stand.

21First, the hearing officer erred by focusing on the appellant’s failure to give a reason or present evidence to explain why the complainant would fabricate the allegations. During cross-examination, the prosecutor asked the appellant to explain why the complainant provided detailed recollections of the ride-along if nothing significant had happened that day. The appellant replied to the cross-examiner “you’re asking why she made up these allegations? They were gossiping in the room during that training day.” At this point, defence counsel interjected as she felt the appellant was being interrupted in giving his evidence and added that “the burden is not on him”. The cross-examination continued in this vein, pressing the appellant on the plausibility of his explanation, put forward only in response to the prosecution’s questions, as to why the complainant would lie.

22The hearing officer referred to the appellant’s responses to the multiple questions about why the complainant would fabricate the allegations throughout his reasons. In assessing the complainant’s credibility, he wrote:

I was impacted by the thought of why anyone would make up an allegation such as this. It makes no sense that someone like [the complainant] would say something happened when it did not. There was no evidence presented by the Officer that changes my thought on this issue, outside of a self-serving opinion by [the appellant] suggesting that [the complainant] made up the complaint to fit in during a training discussion.

23The hearing officer also relied on what he viewed as the appellant’s lack of a satisfactory explanation as to why the complainant would fabricate the allegations in his assessment of the appellant’s own credibility. The hearing officer summarized the appellant’s responses to the prosecutor’s questions and held they were “baseless, unsupported, and bordering on absurd” and “did little to assist his position.” In the credibility analysis, he also criticized the appellant for attempting “to ‘victim blame’” and making “spurious suggestions of how and why the allegations came to exist.” It is clear the hearing officer linked his disapproval of the appellant’s attempts to explain during cross-examination why the complainant would lie to his conclusion the appellant was not a credible witness. He wrote:

There was not a shred of evidence to support [the appellant’s] contentions. To say she was lying, repeatedly, gossiping, and made up a story to fit in are without merit. I reject those suggestions…

These comments caused me to question the testimony of [the appellant] as being embellished to form a defence to the allegation and not factual.

24The error was compounded further when the hearing officer, applying Faryna v. Chorny, listed the reasons he decided the appellant’s evidence was not credible. Among those reasons were his findings that there was “no corroboration that the inappropriate comments and gestures did not happen” and the “absurdity of the suggestion as to why [the complainant] made the complaint.”

25Were this in the criminal context, asking the appellant to explain why the complainant would fabricate allegations would clearly be improper. (R. v. R. H., [2013] O.J. No. 71 (C.A.)). Though disciplinary proceedings in the police disciplinary context have been characterized as professional discipline matters with very serious, though non-penal, potential consequences to officers, they are not ordinary criminal proceedings. (McCormick v. Greater Sudbury Police Service, 2010 ONSC 270 (Div. Ct.) at para.104 citing Blakely v. Quinte West Police Service, 2007 CanLII 22123). However, it is not necessary for the Commission to decide whether the rule against improper cross-examination applies in the disciplinary hearing context. The real difficulty is the extent to which the hearing officer relied on the appellant’s responses to find he was not a credible witness. This clearly had the effect of reversing the clear and convincing burden of proof from the prosecution to the appellant, who was put in a position of having to convince the hearing officer he did not commit misconduct, rather than having the prosecution prove he had committed misconduct.

26Second, the Commission holds the hearing officer erred by using the fact the complainant made a complaint about sexual misconduct as a reason to bolster her credibility. The hearing officer commented extensively on this when analyzing the complainant’s credibility:

As I turn my mind to the credibility of [the complainant’s] testimony of the events of June 27, 2018 can I say her evidence is believable?

[The complainant], I find, is not a sophisticated or worldly person, given her age and work tenure at the SERVICE. I do not believe that [the complainant] would concoct an allegation of this nature and with the particulars outlined. I find no evidence that she is a liar or is habitual in making allegations of this sort. I do find that she presented herself as a confident young woman with an outgoing nature, although naïve. Her presence in the Tribunal exemplified these traits for me. I do believe that she is a positive person and that smiling comes naturally. I also find that she is courageous in bringing this allegation to the attention of the SERVICE. I laud both [the complainant] and the SERVICE for their commitment to support a harassment free workplace.

I can’t understate the courage it takes to see a complaint like this through. It came out in evidence that at many stages [the complainant] was advised how difficult going to a PSA Hearing would be for her. She would be subjected to cross examination and questioned on the allegation. [The complainant] stayed the course, and even when she became emotional under cross examination and had to take a break she came back and answered all the questions of Counsel.

It is arguably easier to say nothing happened [than] it is for a woman to allege sexual harassment. In this case, the power differential clearly lies with [the appellant]. [The complainant] is particularly vulnerable, given her tenure and being a civilian contract employee, in comparison to [the appellant]’s position and tenure. She is, to a degree, in [the appellant]’s hands during a ride-along. The marked vehicle is for all intents and purposes, if I consider my experience, his office. [The complainant] is the outsider and in an unfamiliar environment over which she has little control.

I was impacted by the thought of why anyone would make up an allegation such as this. It makes no sense that someone like [the complainant] would say something happened when it did not. [Emphasis in the original]

27The extent to which the hearing officer relied on the mere fact the complaint was, in part, about sexual harassment as a reason to find the complainant credible also has the effect of shifting the burden of proof. In the criminal context, courts have been clear this is not a proper consideration. In R. v. Niznek, 2017 ONSC 4392 Molloy J. wrote at paras 16, 17, in the context of applying the reasonable doubt standard in a sexual assault trial:

It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. … Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused sexual assault and then placing a burden on him to prove his innocence.

As well, the Court of Appeal for Ontario held in R. v. G. (R.A.), 1994 CanLII 8756 at para. 4: “In our view, the fact that a complainant pursues a complaint cannot be a piece of evidence bolstering her credibility. Otherwise it would have the effect of reversing the onus of proof.”

28The Commission, again, recognizes these holdings were made with respect to the application of the more stringent standard of proof beyond a reasonable doubt in a criminal sexual assault case. However, they do have application here. The hearing officer clearly relied on the fact the witness pursued a complaint about alleged misconduct involving sexual harassment to bolster her credibility. This effectively reversed the burden of proof as it presupposed she had experienced the alleged complaint and subsequent hearing process as an ordeal because she was, in fact, a victim of the very misconduct the prosecution had a burden to prove happened. These were not passing comments about, for example, the complainant withstanding vigorous cross-examination. They are extensive comments that shifted the complainant’s status from a witness giving evidence about allegations, to a victim - the very fact that had to be proved.

29The Commission is mindful of the deference to be paid to the findings of the hearing officer who is a lay person and not legally trained: McPhee v. Brantford Police Service, 2012 ONCPC 12 at para. 90. It may be that the Commission should give some leeway to the hearing officer giving his opinion that the complaint process is generally difficult for individuals or that it is laudable a police service is responsive to complaints of workplace sexual harassment. However, that is not the issue here. The issue here is that the hearing officer explicitly and emphatically linked those beliefs to a positive assessment of the complainant’s credibility at multiple points in his reasons. This was a fundamental error that displaced the prosecution’s burden and undermined the reasonableness of his decision.

30Third, the Commission finds the hearing officer erred by holding he did not find the appellant credible because “there was no corroboration that the inappropriate comments and gestures did not happen.” This comment was made as a list of final conclusions about why the hearing officer found the appellant’s evidence “unbelievable”. The hearing officer held there was some corroboration of the complainant’s version of events (i.e., time sheets confirming she left the ride-along earlier than planned). He held none of the non-testimonial evidence filed corroborated any details of the appellant’s account of the evening. Those details were on peripheral issues such as timing and locations of different stops made on the ride-along.

31It was an error to rely upon a lack of evidence corroborating the misconduct did not happen as point to the fact that it did. This had the effect of requiring the appellant, in order to be believed, to prove a negative or prove his denial. This is a further example of the hearing officer’s fundamental misapplication of the burden of proof in this case.

32On review of the entirety of the hearing officer’s decision, the Commission has concluded these errors went to the core of the hearing officer’s analysis of the credibility of the witnesses. Though he correctly instructed himself on the standard of proof in introductory remarks to his analysis of the evidence, he failed to apply that standard and fell into multiple errors as a result.

ii. The Hearing Officer Erred in the Consideration of the CAD Messaging

33The Commission would allow the appeal based solely on the hearing officer’s errors in the application of the standard of proof. The appellant raised a number of other grounds of appeal related to the hearing officer’s reasons. It is appropriate for the Commission to comment on only one of these further issues.

34The CAD messaging between the appellant and the complainant in July 2018 played a significant role at the hearing. The appellant relied on the CAD messages to support a theory it was implausible anything negative or improper happened during the ride-along because the complainant herself initiated contact with the appellant shortly after and had friendly, irreverent and sometimes affectionate exchanges with him. The prosecution pointed to the fact the CAD messages did not paint the appellant in a good light as he asked about the relationship status of the complainant’s friend, asked for the complainant’s phone number and otherwise engaged in unprofessional and overly-familiar banter with a civilian employee while on duty. The CAD evidence occupied a large portion of the cross-examination and closing arguments of the parties in support of their respective positions.

35The appellant now submits the hearing officer erred by ignoring the impact of the CAD message evidence in his reasons. In his reasons, the hearing officer did not set out any of the content of the messaging nor did he set out the issues raised by this evidence. The hearing officer chose to separate the CAD messaging from his overall credibility analysis of each witness. He wrote as follows:

I could write about the circumstances surrounding the CAD messaging that [the complainant] and [the appellant] engaged in during the month of July 2018, but it would not add to my reasoning in the finding in this matter. These messages occurred after the precipitating incident on June 27, 2018, and have little impact on what is alleged in the NoH. …

The two incidents are separated by date and, although I would agree that this messaging was ill-advised and added some complexity to, and impact upon the credibility of both [the complainant] and [the appellant], the messages for all intents and purposes are not impactful on my determination of whether the inappropriate and sexually harassing comments and gestures were made by [the appellant] toward [the complainant] on the ride-along of June 27, 2018. Nothing stated in the CAD messaging speaks to what happened on the ride-along. There was nothing in these messages that I would consider relevant evidence in favour of either party. …

The messaging was identified by both Counsels as damaging to the credibility of either [the complainant], as pointed out by Ms. Mulcahy, or [the appellant] as pointed out by the Prosecutor. When I consider what [the complainant] hoped would come from the contact, I do not find that the messaging places [the complainant] in an uncredible position because she initiated the contact. She stated clearly why she engaged in the messaging. I could clearly see the plausibility of what [the complainant] was attempting to do. I don’t condone the strategy behind why [the complainant] initiated communication via these messages but understand her reasoning. …

I find that the CAD messaging has little impact on the events of the June 27, 2018 ride-along. I will set the CAD messaging aside and concentrate on the important events of June 27, 2018.

36The Commission agrees the hearing officer’s approach to the CAD messaging is problematic. First, one reason he gives for declining to analyze the messages is that nothing in them touches upon the events of June 27, 2018. This is a misapprehension of the evidence. For example, the complainant was cross-examined on the messages and acknowledged that in them she stated they were “great together” during the ride along in response to his comment they were like a “married couple” and how the appellant became “possessive” of her during the shift, which she wrote she found “hilarious”. The messages also touch on the conversation the two had about the complainant’s friend, while on the ride along. The hearing officer’s holding the messages do not touch on what happened on June 27, 2018 is incorrect.

37The Commission views this misapprehension of evidence as significant. The CAD messages do refer in parts to the appellant and complainant’s shared experience together on the ride-along. They just do so in an innocuous way. The hearing officer’s comment the messages do not “speak to” the events of June 27, 2018 is dangerously close to an observation they have no significance because they do not confirm or “speak to” the complainant’s later allegations of what specifically happened.

38Second, the Commission finds the hearing officer’s reasons with respect to the CAD messaging are insufficient and the failure to consider this evidence was unreasonable. The CAD messaging was a core plank in the defence’s attack on the complainant’s credibility. It was not a peripheral or minor issue at the hearing. The only reasons given for failing to meaningfully deal with defence submissions about the impact of the CAD messaging on the complainant’s credibility were that the messages were sent after the alleged misconduct and that the hearing officer accepted the complainant’s evidence that she messaged the appellant only to try to have him admit his earlier misconduct or say something further that was inappropriate.

39The outcome of the proceeding turned on the hearing officer’s assessment of the appellant and the complainant. The Commission, in reviewing the sufficiency of the reasons in a case that depends on credibility assessments, must keep in mind the advantage the hearing officer had when assessing the credibility of witnesses. The difficulty here is that the hearing officer jettisoned a very significant aspect of the hearing evidence related to credibility by making a blanket statement that he believed the complainant’s explanation for the messages. There was no analysis of this evidence, and it can be fairly said that the appellant, reading the hearing officer’s reasons with respect to the CAD messaging, would not have an explanation of why the hearing officer accepted her explanation for the many messages exchanged, their content, and the fact she initiated the messages, beyond this blanket statement that her explanation was believable. As the messaging was a core facet of the appellant’s defence to the misconduct allegations, the Commission finds these reasons are insufficient and impact the reasonableness of the hearing officer’s credibility assessment.

ORDER

40The appeal is allowed and pursuant to section 87(8) (c) of the Police Services Act, the Commission orders a new hearing.