COURT FILE NO.: 456/02
DATE: 20030909
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, herold and linhares de sousa jj.
B E T W E E N:
police constable claude armstrong (#1419)
Appellant
- and -
THE PEEL REGIONAL POLICE SERVICES
Respondent
William R. MacKenzie, for the Appellant
Steven Boorne, for the Respondent
HEARD at Toronto: March 24, 2003
O’Driscoll J.:
I. Nature of the Proceedings
[1] The Appellant, a police officer, appeals to this Court from (1) the order of the Ontario Civilian Commission on Police Services (OCCPS) affirming the Hearing Officer’s finding of discreditable conduct on the part of the Appellant and (2) the penalty imposed of dismissal.
[2] On February 1, 2001, the appellant was served with a Notice of Hearing, dated January 24, 2001, returnable on February 7, 2001 at the Headquarters of the Respondent. The Appellant signed a copy of the Notice acknowledging its receipt.
[3] The Notice of Hearing stated, in part:
“You stand charged with Discreditable Conduct that you acted in a disorderly manner or a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force
constituting an offence against discipline, as set out in Section 2.(1)(a)(xi) of the Code of Conduct Regulation 123/98 of the Revised Regulations of Ontario, 1990 and are thereby guilty of a misconduct contrary to Section 74(1) of The Police Services Act.”
[4] Attached to the Notice of Hearing were:
- A mandatory notice to the Appellant under s. 69(5) of the Police Services Act (PSA) that the Appellant was entitled to examine, on request, any physical or documentary evidence.
- A mandatory notice to the Appellant under s. 68(6) of the PSA that the prosecutor would seek a penalty of dismissal or demotion if the allegation were proved on clear and convincing evidence.
[5] The Particulars of Allegation attached to the Notice of Hearing state:
Constable Claude Armstrong, a member of the Peel Regional Police, maintained an inappropriate relationship with P.B. who reported the matter to Peel Regional Police Internal Affairs on September 14, 2000. Ms. B. was 18 at the time of her complaint and alleged sexual assaults and harassment by Constable Armstrong at her family home that dated back to when she was 16. Ms. B. approached a school guidance counsellor in April, 1999 who, knowing him to be a police officer, telephoned Constable Armstrong and told him to discontinue his contact with P.B. P.B. later approached a school vice principal who encouraged her to report the matter to the police.
Constable Armstrong admitted to hugging and kissing P.B. His actions, extremely reprehensible in themselves, have been brought to the attention of school officials. Constable Armstrong’s actions with P.B. have brought discredit to the reputation of the Peel Regional Police.
II. Relevant Legislation and Regulations
A. Police Services Act, R.S.O. 1990, c. P.15 (PSA)
s. 64(1) Subject to subsections 59(3), (4) and (5) the chief of police shall cause every complaint made about the conduct of a police officer, other than the chief of police or deputy chief of police, to be investigated and the investigation to be reported on in a written report.
s. 74(1) A police officer is guilty of misconduct if he or she,
(a) commits an offence described in a prescribed code of conduct;
(2) A police officer shall not be found guilty of misconduct if there is no connection between the conduct of either the occupational requirements for a police officer or the reputation of the police force.
Ontario Regulation 123/98 made under the PSA:
- (1) Any conduct described in the code of conduct, set out in the Schedule, constitutes misconduct for the purpose of section 74 of the Act
SCHEDULE
CODE OF CONDUCT
2.(1) Any chief of police or other police officer commits misconduct if he or she engages in,
(a) DISCREDITABLE CONDUCT, in that he or she,
(xi) acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force;
s.64(7) Subject to subsections (11), if, at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the opinion that the police officer’s conduct may constitute misconduct, as defined in section 74, or unsatisfactory work performance, he or she shall hold a hearing into the matter.
s.76(2) A chief of police may authorize any member of any police force to exercise a power or perform a duty of the chief of police under this Part, other than those described in subsection (1).
s.64(8) The chief of police shall designate to be the prosecutor at the hearing,
(a) a police officer from any police force of a rank equal to or higher than that of the police officer who is the subject of the hearing; or
(b) a legal counsel or agent.
s.64(10) At the conclusion of the hearing, if misconduct or unsatisfactory work performance is proved on clear and convincing evidence, the chief of police shall take any action described in section 68.
s. 68(1) The chief of police may, under subsection 64(10),
(c) direct that the police officer be dismissed in seven days unless he or she resigns before that time;
s. 69(1) A hearing held under subsection 64(7) or 65(9) shall be conducted in accordance with the Statutory Powers Procedure Act.
s. 69(4) The parties to the hearing shall be given reasonable notice of the hearing and each party may be represented by counsel or an agent.
s. 69(7) The police officer who is the subject of the hearing shall not be required to give evidence at the hearing.
s. 69(11) The oral evidence given at the hearing shall be recorded and copies of transcripts shall be provided on the same terms as in the Superior Court of Justice.
III. Background
[6] On September 18, 2000, the complainant, P.B., attended at the Internal Affairs Bureau (Bureau) of the Respondent and gave an audio taped statement to two (2) members of the Bureau. A transcript of the interview (some 95 pages) appears in the Appeal Book at Tab 7.
[7] On November 6, 2000, P.B. admitted to fabricating an allegation that on November 6, 2000, she had been assaulted and robbed by the Appellant.
[8] On November 22, 2000, Sgt. Kim Whyte, the officer in charge of the investigation was advised, orally, that a counsel for the Attorney General (Ontario) did not recommend the laying of criminal charges against the Appellant on the matters set out in the “Particulars of Allegation” attached to the Notice of Hearing.
[9] On November 22, 2000, the Appellant was advised in writing by the Bureau: (1) that he was the subject officer in an investigation by the Bureau regarding allegations of sexual assault and criminal harassment with P.B. as the complainant, and (2) that he was requested to attend at the Bureau’s office to be interviewed.
[10] On November 23, 2000, the Appellant attended at the Bureau and gave an audio/video statement to the officer in charge of the case. A transcript of the Appellant’s statement is found at pp. 151-217 of the Appeal Book, Tab 8. Although advised in the written Notice, dated November 22, 2000, that “you are entitled to consult with counsel and/or the Peel Regional Police Association with regard to this investigation”, the Appellant appeared by himself for the interview.
[11] Before being questioned on November 23, 2000, the Appellant was:
(1) Advised that he would not be charged with any criminal offences arising from the matter under investigation,
(2) Given his Charter rights to counsel. After the rights to counsel were given, the Appellant answered that he understood. When asked if he wanted to call a lawyer, the Appellant replied “Not right now, no”. The matter never resurfaced
(3) Advised by Sgt. Whyte that he had the right to remain silent.
IV. The Hearing under s. 64(7) of the PSA
[12] The matter came before the Hearing Officer, Superintendent D. Honer, an officer designated to hold a hearing in the matter by the Chief of the Respondent Service (s. 76(2) of the PSA). Mr. Ian Scott appeared for the prosecution. The Appellant appeared with an agent, Paul Bailey, who was from the Peel Regional Police Association. The Appellant, under s. 69(4) of the PSA, had the right to be represented by counsel or an agent.
[13] On September 10, 11 and 12, 2001, the Hearing Officer heard evidence and submissions; he reserved his decision.
[14] During the hearing, the agent for the Appellant never raised any question of the voluntariness or the admissibility of the Appellant’s November 23, 2000 statement to the investigating officer. At the hearing, the agent for the Appellant insisted upon filing as an exhibit the audio statement of the complainant taken on September 18, 2000.
[15] On September 19, 2001, the Hearing Officer gave his decision comprising some thirty (30) pages.
During the course of his reasons the Hearing Officer stated:
Having looked at the totality of Constable Armstrong’s statement of November 23/2000, I find that he admitted to inappropriate behaviour and harassment of Ms. B.
The Hearing Officer concluded his reasons by stating:
Having carefully considered all the evidence in this case I find on clear and convincing evidence Constable Armstrong carried out an inappropriate relationship with P.B. and his actions with P.B. have brought discredit to the reputation of the Peel Regional Police. I am finding Cst. Armstrong guilty of Discreditable Conduct.
[16] On September 21, 2001, the Hearing Officer imposed the penalty that the Appellant be dismissed in seven (7) days unless he resigned before that date (s. 68(1)(b) of PSA).
V. Appeal to Ontario Civilian Commission on Police Services (Commission/OCCPS)
[17] On September 24, 2001, the Appellant filed a Notice of Appeal and appealed to the Commission from the finding of Discreditable Conduct and the penalty imposed.
[18] The relevant sections of the PSA applicable to that appeal are:
s. 70(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held by the chief of police under subsection 64(7) or by the board under subsection 65(9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.
(2) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a police officer.
(5) A hearing held under this section shall be an appeal on the record, but the Commission may receive new or additional evidence as it considers just.
(6) The Commission may confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police or board, as the case may be.
[19] On April 4, 2002, two (2) members of the Commission heard the Appellant’s appeal and reserved its decision. Before the Commission, the Appellant was represented by Mr. W.R. MacKenzie and the Respondent was represented by Mr. Ian Scott, the same counsel who had appeared for the prosecution before the Hearing Officer.
[20] On July 18, 2002, the Commission released twelve (12) pages of written reasons for decision dismissing the Appellant’s appeal against the finding of discreditable conduct and the penalty imposed. The Commission, in setting out its duties, stated:
Other issues raised concern the Hearing Officer’s assessment of credibility and treatment of the evidence. On such matters, it is a well-established principle that an appellant authority should only intervene if the Hearing Officer has made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence or drawn erroneous conclusions from it.
As was noted in Williams and Ontario Provincial Police [(1995), 2 O.P.R. 1047, 1058 (OCCPS)]:
Our role or function in such matters is not to second guess the decision of the adjudicator. In certain limited cases, it would be open to us to reach a different conclusion from that of the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the adjudicator, as to [whether] the credibility of witnesses, cannot be reasonably accepted.
Matters of credibility and finding of fact are within the Hearing Officer’s domain. Only in exceptional cases, where the reasoning is self-evidently wrong, contain clear error or cannot reasonably be accepted, will the Commission interfere with conclusions. The question for us is whether or not the decision of the Hearing Officer was without evidentiary foundation or demonstrated manifest error in principle.
VI. Appeal to the Divisional Court
[21] On August 6, 2002, the Appellant launched this appeal under the provisions of the PSA:
s. 71(1) A party to a hearing held by the Commission under subsection 65(9) or section 70 may appeal the Commission’s decision to the Divisional Court within 30 days of receiving notice of the Commission’s decision.
(2) An appeal may be made on a question that is not a question of fact alone, from a penalty imposed or from any other action taken, or all of them.
VII. Standard of Review on this Appeal
[22] On the argument of this appeal on March 24, 2003, neither counsel in either oral or written submissions addressed the question as to the proper standard of review to be applied by the Divisional Court on this appeal – an appeal from the Ontario Civil Commission on Police Services, an administrative tribunal.
[23] At the conclusion of this appeal on March 24, 2003, judgment was reserved.
[24] On April 3, 2003, the Supreme Court of Canada released: (1) Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17; Dr. Q. v. College of Physicians and Surgeons of B.C., 2003 SCC 19, [2003] S.C.J. No. 18.
[25] On June 10, 2003, the Registrar, at the request of the members of the panel, sent a letter to counsel advising that if either counsel wished to make submissions arising out of Dr. Q. and/or Ryan, he may do so, in writing, within ten (10) days. At the request of counsel, the time limit was extended until July 18, 2003.
[26] In Dr. Q., writing for the Court, McLachlin C.J.C. said:
[21] . . .The term “judicial review” embraces review of administrative decisions by way of both application for judicial review and statutory rights of appeal. In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach. In Pushpanathan, this Court unequivocally accepted the primacy of the pragmatic and functional approach to determining the standard of judicial review of administrative decisions. Bastarache J. affirmed that “[t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed” (para. 26). However, this approach also gives due regard to “the consequences that flow from a grant of powers” (Bibeault [1988 30 (SCC), [1988] 2 S.C.R. 1048] at p. 1089) and, while safeguarding “[t]he role of the superior courts in maintaining the rule of law” (p. 1090), reinforces that this reviewing power should not be employed unnecessarily. In this way, the pragmatic and functional approach inquires into legislative intent, but does so against the backdrop of the courts’ constitutional duty to protect the rule of law.
[22] . . . Rather, the pragmatic and functional approach calls upon the court to weigh a series of factors in an effort to discern whether a particular issue before the administrative body should receive exacting review by a court, undergo “significant searching or testing” (Southam, [1997 385 (SCC), [1997] 1 S.C.R. 748] at para. 57), or be left to the near exclusive determination of the decision-maker. These various postures of deference correspond, respectively, to the standards of correctness, reasonableness simpliciter, and patent unreasonableness.
[26] In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors – the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question – law, fact, or mixed law and fact. The factors may overlap.
[36] Applying the pragmatic and functional approach in this case, the four factors lead to a standard of reasonableness simpliciter. The fact that the statute provides a broad right of appeal and that the Committee is no more expert than the courts on the issue in question suggests a low degree of deference.
[38] Finally, however, the need for deference is greatly heightened by the nature of the problem – a finding of credibility. Assessments of credibility are quintessentially questions of fact. The relative advantage enjoyed by the Committee, who heard the viva voce evidence, must be respected.
[39] Balancing these factors, I am satisfied that the appropriate standard of review is reasonableness simpliciter. The reviewing judge should have asked herself whether the Committee’s assessment of credibility and application of the standard of proof to the evidence was unreasonable, in the sense of not being supported by any reasons that can bear somewhat probing examination (see Ryan, supra, at para. 46).
[27] In his written submission, dated July 14, 2003, counsel for the Appellant submits that the standard of review on this appeal should be one of “correctness”.
[28] In his written submission, dated July 16, 2003, counsel for the Respondent submits that the proper standard of review on this appeal is “reasonableness simpliciter”.
[29] After reviewing the two aforesaid decisions of the Supreme Court of Canada and the submissions of counsel, we are of the view that, on this appeal, utilizing the pragmatic and functional approach, in all the circumstances, the appropriate standard of review to be applied to the decision of the OCCPS is one of reasonableness simpliciter.
VIII. Grounds of Appeal Argued by Counsel for the Appellant
Issue #1
[30] Did the Commission err in law in concluding that the Notice of Hearing and particulars (supra) were not prejudicial, thereby denying the Appellant fairness and natural justice?
[31] In its reasons, the Commission pointed out that before the Hearing Officer the Appellant’s agent said nothing that in any way challenged either the Notice of Hearing or the Statement of Particulars.
[32] The Commission pointed out that discipline proceedings involving police officers are labour relations matters. In Burnham v. Metropolitan Toronto Police Association, 1987 42 (SCC), [1987] 2 S.C.R. 572, 574, a unanimous seven (7) judge court adopted the words of Morden J.A. reported: (1986), 1986 146 (ON CA), 55 O.R. (2d) 570, 589:
In my view, a Police Act discipline proceeding is not a criminal or penal proceeding within the purview of s. 11 [of the Charter….] A police discipline matter is a purely administrative internal process. ….. The basic object of dismissing an employee is not to punish him or her in the usual sense of this word (to deter or reform or, possibly, to exact some form of modern retribution) but rather, to rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee.
[33] The Commission also stated:
All allegations against Constable Armstrong were subject to proof. This included “kissing and hugging [P.]”. An acknowledgment of this occurred in the voluntary statement given by Constable Armstrong during his video interview of November 23, 2000. This interview occurred after Constable Armstrong was advised of his Charter rights and he waived his right to counsel. Further, during the course of the disciplinary proceeding, Constable Armstrong had the opportunity to testify to provide an explanation for both these remarks and his conduct. He chose to do so. That being the case, we cannot see how natural justice has not been satisfied.
[34] We cannot say that the Appellant suffered any bias or prejudice arising from the Notice of Hearing and/or the particulars alleged. The “particulars” were allegations. In any event, the finding of the Hearing Officer was that the Appellant admitted such conduct in his November 23, 2000 audio/video statement.
[35] We find no error on the part of the Commission on this ground of appeal.
Issue #2
[36] Did the Commission err in acceding to the Hearing Officer’s findings of fact which were unsupported by the evidence and the product of pure speculation?
[37] On the last page of his reasons for decision, the Hearing Officer said:
I have heard submissions from Mr. Bailey and Mr. Scott that this case turns on the credibility of the witnesses. The two primary witnesses, P.B. and Constable Armstrong are very far apart on many aspects of their evidence. Without the independent evidence of Jan Whitney and the video statement of Constable Armstrong this case would be difficult to resolve. I find that the evidence of Jan Whitney supports and corroborates the position that Constable Armstrong was involved in an inappropriate relationship with P.B. I find that at the very least Constable Armstrong used coercion and intimidation to manipulate P.B. into sexual situations and activity. Ms. P.B. has testified that the sexual acts were against her will and I’m not sure what degree of force was used whether it was coercive or physical or a combination of both. The phone call of Jan Whitney established that Constable Armstrong knew it was wrong and that he was getting a chance that he didn’t deserve. Had he taken the stern direction given to him by Jan Whitney to never go near P. B. again this matter may never have come to the attention of this Police Service. Instead Constable Armstrong after staying away from P. B. for approximately a year began to pursue her again until she reported the harassment to Vice-Principal Courtin.
I thought Constable Armstrong’s statement in the video interview was particularly telling when Sergeant Whyte said “and she wants you to have no more contact with her” Constable Armstrong responded, “I think that was quite clear I think maybe a year ago.”
Sgt. WHYTE: But you persisted though. You persisted in trying to contact her.
Cst. ARMSTRONG: That’s true. That’s true…
Although Cst. Armstrong goes on to offer a reason why he persisted and continued to contact Ms. B., I find his explanation weak and contradicted by other testimony.
I find P.B. was a very vulnerable, inexperienced, and immature girl who was infatuated with a 35-year-old police officer. Constable Armstrong took advantage of P. B.’s vulnerability for his own sexual gratification.
Having carefully considered all the evidence in this case I find on clear and convincing evidence Constable Armstrong carried out an inappropriate relationship with P.B. and his actions with P.B. have brought discredit to the reputation of the Peel Regional Police. I am finding Cst. Armstrong guilty of Discreditable Conduct.
[38] Earlier in his reasons, the Hearing Officer stated:
I find that Cst. Armstrong contradicted himself on a number of occasions while giving his evidence. I found his evidence to be evasive, defensive and lacking credibility. Many of his reasons for not acting on serious allegations made against him were weak and unconvincing. Having watched and listened to how he answered questions I find that he was less than a credible witness in this hearing.
[39] The Hearing Officer flagged, faced and factored into his assessment of the credibility of Ms. B. that:
(a) she lied about being robbed by the Appellant – Reasons for Decision: Appeal Book, page 7 and transcript September 10, 2001, pp. 35-37, pp. 85-88
(b) she lied about how the Appellant had obtained her pager number – Reasons for Decision: Appeal Book, page 7 and transcript September 10, 2001, pp. 73-75
(c) she lied about what she told Ms. Whitney and Ms. Courtin in relation to the alleged sexual assaults – Reasons for Decision: Appeal Book, page 7 and transcript of September 11, 2001, pp. 23-25, pp. 36-37, pp. 55-56 and pp. 60-62.
[40] In its Reasons for Decision, the Commission said:
At the end of the day, having observed the key parties, heard their testimony and examined their previous statements, he found that the essential aspects of the evidence of P. (corroborated in part by her guidance counselor, vice-principal and prior statement of Constable Armstrong) was to be believed. He concluded that “[P.] was a vulnerable, inexperienced, and immature girl who was infatuated with a 35-year old police officer. Constable Armstrong took advantage of [P.’s] vulnerability for his own sexual gratification.” This finding cannot be said to be void of evidentiary foundation or the result of the application of different standards of credibility.
[41] We find no error by the Commission on this ground.
Issue #3
[42] Did the Commission err in law in accepting the Hearing Officer’s findings regarding the relevance of evidence and the assessment of credibility for the involved parties?
[43] Under this heading, counsel for the Appellant advanced two (2) grounds:
(a) Did the Hearing Officer and the Commission err in refusing to admit into evidence a letter, dated December 2, 2000, from a counsel at the Ministry of the Attorney General confirming in writing his oral reasons given to Sgt. Kim Whyte on November 22, 2000 as to why the counsel would not recommend charges against the Appellant under the Criminal Code of Canada?
[44] At page 52 of the transcript of September 11, 2001, the Hearing Officer refused to admit into evidence the letter of counsel for the Attorney General for Ontario because it was not relevant and, moreover, all the people named in the letter, who had not been seen by counsel for the Attorney General, were to be witnesses before the Hearing Officer. The Commission said:
The letter in question expressed a ‘paper’ opinion about whether or not a criminal charge should proceed against Constable Armstrong. It was based on information from several individuals whom the Crown had never spoken to or met. All of these individuals appeared in person and testified and were cross-examined at the disciplinary proceeding. The Hearing Officer appears to have been of the view that he wished to make his own assessment of credibility based on this first hand information and observation. This strikes us as reasonable.
[45] Although s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 permits evidence to be introduced at a tribunal which would not be admissible in a court, the section requires that the proposed evidence be “relevant to the subject matter of the proceeding…”
[46] In our view, the Hearing Officer was not in error when he refused to admit the letter because it was not relevant. In our view, the Commission did not err in affirming the ruling of the Hearing Officer.
[47] In our view, counsel for the Appellant should not have inserted the letter, dated December 2, 2000, into the Appeal Book at Tab 9 as though it had been an exhibit before the Hearing Officer and/or the Commission.
[48] (b) Did the Hearing Officer erred when he refused to allow the agent for the Appellant to ask questions in examination in chief of his witness, the complainant’s mother, regarding allegations of prior sexual assaults upon the complainant by her uncle?
[49] The Commission stated:
We also agree that the decision of the Hearing Officer to not permit cross-examination of [P.] on a prior allegation of sexual assault was correct. In some cases such a cross-examination might be appropriate to demonstrate a pattern of fabrication. However, for this to occur there must be some evidence that the prior allegations had either been recanted by the complainant or were demonstrably inaccurate. There was no such evidence presented.
[50] In affirming the Hearing Officer’s evidentiary ruling, the Commission followed the endorsement of the Court of Appeal for Ontario in R. v. M.,J. – June 26, 2000 (unreported), where it was said:
The only ground of appeal is that Jennings J. erred in upholding the trial judge’s refusal to permit the defence to cross-examine the complainant about a prior sexual assault complaint which she had made against a different person.
[2] The proposed cross-examination of the complainant was with respect to a collateral matter. In R. v. Riley (1992), 1992 7448 (ON CA), 11 O.R. (3d) 151, this court held that the defendant’s cross-examination of the complainant about an alleged prior false complaint should not be permitted unless the “defence is in a position to establish that the complainant has recanted her earlier accusations or that they are demonstrably false”. We are satisfied that in R. v. W. (B.A.), 1992 24 (SCC), [1992] 3 S.C.R. 811, decided very shortly after Riley, the Supreme Court neither expressly, nor implicitly, departed from the principle stated in Riley.
[3] Moreover, as the proposed line of questioning related to a collateral matter, the trial judge’s decision to exclude the cross-examination involved the exercise of his discretion: R. v. Meddoui, 1991 42 (SCC), [1991] 3 S.C.R. 320 at 320-21.
[4] In our view, Jennings J., for the reasons which he gave, correctly found no basis on which to interfere with the trial judge’s exercise of his discretion.
[51] When and while the complainant had been a witness for the prosecution, there was no attempt to cross-examine her upon these allegations.
[52] We find no error by the Commission regarding this ground of appeal.
Issue #4
[53] Did the Commission err in law in acceding to the Hearing Officer’s application of proof which failed to ensure that the misconduct was proven on ‘clear and convincing evidence’?
[54] Section 64(1) of the PSA sets the onus on the prosecutor as “clear and convincing evidence”.
[55] As set out earlier, the Hearing Officer concluded his Reasons for Decision by stating:
Having carefully considered all the evidence in this case I find on clear and convincing evidence Constable Armstrong carried out an inappropriate relationship with P.B. and his actions with P.B. have brought discredit to the reputation of the Peel Regional Police. I am finding Cst. Armstrong guilty of Discreditable Conduct.
[56] On the issue of burden, the Commission said, in part:
As was noted in Carmichael and Ontario Provincial Police (unreported, May 21, 1998, O.C.C.P.S.) at page 6 this means “weighty, cogent and reliable evidence upon which a trier of fact acting with care and caution comes to a reasonable conclusion that an officer is guilty of misconduct”. This is different from the traditional criminal burden of proof.
. . . We are satisfied the Hearing Officer both understood and applied the correct test in this case.
[57] We see no error on the part of the Commission on this issue.
Issue #5
[58] Did the Commission err in law in accepting that the penalty of dismissal was not harsh and excessive given the nature of the conviction?
[59] In its Reasons for Decision, the Commission said:
Our function on appeal is not to second-guess the penalty imposed by the Hearing Officer, even if we might have imposed a different disposition. Rather, our role is to assess whether or not the Hearing Officer fairly and impartially applied these principles and properly considered all relevant matters. Where there is manifest error in principle or the proper considerations are ignored we may vary a disposition.
The Hearing Officer in this case identified all the relevant sentencing factors and addressed each in turn. He concluded that the conduct in question was serious and contrary to the public interest. He found that it brought significant damage to the reputation of the service and was the type of behavior that needed to be deterred. He found no concerns with either handicap or management’s conduct. He noted positive aspects of Constable Armstrong’s employment history but found that they were “overshadowed by his extensive disciplinary record of (27) instances of counseling and (7) Police Services Act convictions”.
To our minds, all of these conclusions are reasonable. Clearly, it is unacceptable for a 34 year-old man to direct unwanted attention of a sexual nature to a 16-year old girl. This is particularly so in the face of a clear and blunt warning from a teacher that such conduct must stop. This is made all the worse when the attention comes from a man who was a known police officer who appears to have established trust by offering to provide police paraphernalia. In this respect, it makes no difference that the conduct in question was off-duty.
[60] As to “consistency of penalty”, the Commission referred to Keefe and Ontario Provincial Police (1989), 2 O.P.R. 838, 839 where the officer had been found guilty of discreditable conduct, based on his sexual involvement with a 14 year old girl, and was dismissed. In Keefe, the Commission upheld the penalty imposed by the Hearing Officer and found “this offence on its own renders Provincial Constable Keefe unsuitable to continue as a member of the Force”.
[61] We find no error in the Commission’s Reasons for Decision where it said “it cannot be said that the disposition imposed on Constable Armstrong was not in the range of those available to the Hearing Officer”.
IX. Result
[62] The appeal is dismissed. No order as to costs.
O’Driscoll J.
Herold J.
Linhares de Sousa J.
Released:
COURT FILE NO.: 456/02
DATE: 20030909
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, HEROLD AND LINHARES de SOUSA JJ.
B E T W E E N:
POLICE CONSTABLE CLAUDE ARMSTRONG
(#1419)
Appellant
- and -
THE PEEL REGIONAL POLICE SERVICES
Respondent
REASONS FOR JUDGMENT
O’Driscoll J.
Released: September 9, 2003