COURT FILE NO.: 531/03

DATE: 20040422

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Macfarland, Wilson and SWINTON JJ.

B E T W E E N:

CHIEF OF POLICE, TORONTO POLICE SERVICE

Appellant

• and -

CONSTABLE JUAN BLOWES-AYBAR

Respondent

Brian Gover and Brendan Van Niejenhuis, for the Appellant

Barrie Chercover, for the Respondent

HEARD at Toronto: March 31, 2004

THE COURT:

1The Appellant appeals a decision of the Ontario Civilian Commission on Police Services (“the Commission”) dated August 12, 2003, which allowed an appeal from the decision of a Hearing Officer under s. 64 of the Police Services Act, R.S.O. 1990, c. P.15 and set aside the Respondent’s conviction for Discreditable Conduct.

Factual Background

2The Respondent Constable Juan Blowes-Aybar is a member of the Toronto Police Service. He is alleged to have sexually assaulted a woman (“the Complainant”), while the two were on vacation in the Dominican Republic on April 4, 1998.

3The Complainant and the Respondent met through a family friend on Sunday, March 29, 1998, the night before they were to leave on vacation in the Dominican Republic. The Complainant had plans to travel with a girlfriend, with whom she would share a hotel room. The Complainant and Respondent went out on the Sunday evening, and they agreed that they found each other attractive. The next morning, they traveled to the Dominican Republic on the same plane.

4Initially, the Complainant and her friend stayed at a hotel and the Respondent stayed with his mother, who lived in the Dominican Republic. On the evening of March 30, after a night at a club, the Complainant and Respondent had consensual sexual intercourse on the beach. The next day, April 1, the Respondent moved into the same hotel as the Complainant.

5Over the next few days, the Respondent and Complainant met other guests with whom they spent time during the week. Early in the morning of Wednesday, April 2, the Complainant and Respondent had consensual sexual intercourse a second time.

6The Complainant testified that throughout the week, the Respondent took a possessive and irritable attitude towards her on several occasions. On the evening of Friday April 4, the two had gone out for dinner and to a club with a group of people. There is evidence of bickering or arguing between them during the dinner, both from the Complainant and other members of the group. On returning from the club, the group decided to go for a swim. There is evidence that the Complainant went to the Respondent’s room.

7There are very different versions of the events that happened in the room. The Complainant testified that she told the Respondent that she wanted nothing more to do with him, and he snapped, pushed her on the bed and twice tried to strangle her. She also testified that he forced her to have vaginal and oral intercourse. The Respondent denied that this occurred. He testified that while the Complainant was not sober, he had consensual sex with her.

8After the Complainant left the room, she went to the lobby and reported that she had been sexually assaulted. One witness, Chris McBride, described her as distraught and upset at this time. The Respondent testified that the Complainant’s allegations were an attempt to extort money or force him into marriage, as she believed that she was pregnant.

9The police arrived and arrested the Respondent. The Complainant was examined by a doctor. The medical report was later admitted in evidence at the disciplinary hearing.

10Later in the morning of April 4, and after obtaining legal advice, the Complainant withdrew the criminal charges. She testified that she was afraid that she would not be allowed to leave the country during the court proceedings. She admitted that she had to lie to the officials in the Dominican Republic in order to withdraw the charges, but testified that she intended to re-lay the charges in Canada.

11On her return to Canada, she made a complaint to police. The Respondent was charged with one count of discreditable conduct under the Police Services Act.

12A hearing was held before the Hearing Officer, Superintendent Dick. Testimony was given over the course of seven days by the Complainant, the Respondent and several other guests at the hotel.

13In reaching her conclusion, the Hearing Officer observed that the ultimate finding of guilt or innocence rested heavily on the credibility of the Complainant and the Respondent. She concluded that the Complainant’s testimony “was compelling, forthright, unwavering and possessed a most definite ring of truth. She was never shaken in the essentials of her evidence.” The Hearing Officer found the Respondent’s evidence “contrived and tailored”. She found the Respondent guilty of discreditable conduct and, after a further hearing on sentence, ordered him dismissed from the force.

14The Respondent appealed to the Commission pursuant to s. 70(1) of the Police Services Act. Pursuant to s. 70(5), a hearing under the section is an appeal on the record, but the Commission may receive new or additional evidence as it considers just. In this case, there was no new evidence.

15The Commission allowed the appeal, stating, at p. 5 of the reasons:

We are clearly of the view that the charges against Juan Blowes-Aybar were not proven on clear and convincing evidence. The evidence of Ms. D. was neither clear nor convincing. In fact, her story was incredible throughout.

We find that there can be no other determination but that the conclusions of the Hearing Officer cannot reasonably be accepted and that she has made a manifest error in arriving at her conclusion that the charges against Juan Blowes-Aybar were proper on clear and convincing evidence, which we find is totally unsupported by the evidence in this case.

16The Toronto Police Service appealed to the Divisional Court pursuant to s. 71(1) of the Police Services Act, which, pursuant to s. 71(2), permits an appeal on a question that is not a question of fact alone.

The Issue on Appeal

17The Appellant asserts that the Commission erred in failing to apply the correct standard of review to the decision of the Hearing Officer. Instead of asking itself whether, after a somewhat probing examination, the reasons of the Hearing Officer supported the conclusion that she reached, the Commission retried the matter on its merits and substituted its findings for those of the Hearing Officer. The Appellant argues that the conclusions reached by the Hearing Officer are fully supported by the facts, and that there was no basis for the Commission to interfere with the Hearing Officer’s decision.

18The Appellant argues that the proper standard for review by this Court of the Commission’s decision is correctness. Alternatively, if the standard of review is reasonableness simpliciter, it is the position of the Appellant that the Commission’s decision fails to meet the criterion of this somewhat lower test for intervention.

19The Respondent argues that the standard of review for both the Commission’s review of the Hearing Officer’s decision, and the review by this Court of the Commission’s decision is reasonableness simpliciter. The Respondent asserts that the Commission’s decision was reasonable and supported by the facts, and that this Court should not intervene.

The Standard of Review for this Court

20In the Divisional Court’s recent decision in Armstrong v. Peel Regional Police Services, 2003 37924 (ON SCDC), [2003] O.J. No. 3437; (2003), 176 O.A.C. 358, it was held that, in all the circumstances of that appeal, the proper standard of review of a decision by the Commission upholding the decision of the Hearing Officer in that case was reasonableness simpliciter (at para. 29). However, the Court proceeded to determine in respect of each of the five grounds of appeal that it found “no error”, which suggests that the standard actually met by the Commission was correctness.

21The Supreme Court of Canada has held that the proper standard of review of a decision of an administrative tribunal is to be determined having regard to the issue before the administrative body and in light of the four factors set out in the “pragmatic and functional test” (Dr. Q v. College of Physicians and Surgeons of British Columbia (2003), 2003 SCC 19, 223 D.L.R. (4th) 599 at para. 22). Those four factors are 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 (at para. 26).

22The principal question in this appeal is whether the Commission applied the proper standard of review to the Hearing Officer’s findings when it overturned her conclusions as to fact and credibility. In this case, the Divisional Court operates at the secondary appellate level, hearing an appeal on a question other than a question of fact.

23The Supreme Court of Canada, in Dr. Q, supra, dealt with the role of a Court at the secondary appellate level reviewing the decision of a judge at first instance hearing an appeal of a disciplinary decision of the College of Physicians and Surgeons of British Columbia. The judge at first instance was held to have erred when she weighed the evidence and substituted her decision for that of the tribunal. She should properly have applied a reasonableness standard. The Court of Appeal was held to have erred in subsequently deferring to her findings of fact. According to the Supreme Court of Canada, the role of the Court of Appeal, as the secondary appellate court, was as follows:

The role of the Court of Appeal was to determine whether the reviewing judge had chosen and applied the correct standard of review, and in the event she had not, to assess the administrative body’s decision in light of the correct standard of review, reasonableness. At this stage of analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicial review of administrative action. As such, the normal rules of appellate review of lower courts, as articulated in Housen, supra, apply. The question of the right standard to select and apply is one of law and, therefore, must be answered correctly by a reviewing judge. The Court of Appeal erred by affording deference where none was due (at para. 43).

24In this appeal, the Divisional Court is engaged in judicial review of the Commission’s decision. In our view, the application of the four-part pragmatic and functional test leads to the conclusion that correctness is the proper standard to apply to the Commission’s determination of the proper standard of review of the decision of the Hearing Officer and the application of that standard.

25First, the Police Services Act provides a right of appeal to the Divisional Court on a question other than a question of fact. This suggests a less deferential standard on review than in a case where there is a privative clause.

26Second, the determination of the appropriate standard of review and its correct application by the Commission is a question of law. While the Commission may have greater expertise than this Court in determining what constitutes discreditable misconduct or an appropriate penalty, it has no greater expertise than the Court on this legal question of the standard of review to apply.

27Third, the purpose of the legislation is to ensure a fair mechanism of review of decisions of the Hearing Officer. The Commission has no greater expertise than the Hearing Officer in making findings of fact. Therefore, there is no reason for this Court to defer to the Commission when the Commission is reviewing the findings of the Hearing Officer.

28Finally, the determination of the appropriate standard of review of a decision of a Hearing Officer is a question of law, and thus less deference is warranted than in review of a determination of mixed fact and law.

29Therefore, we conclude that when the various factors are considered together, the standard of review for this Court with respect to the Commission’s determination of the standard of review that it is to apply is correctness. However, even if the standard of review for this Court is that of reasonableness simpliciter, as suggested in the Armstrong v. Peel Regional Police Services decision, we conclude, for reasons to be outlined, that the Commission’s decision can not stand.

The Standard of Review to be Applied by the Commission

30The Commission set out the applicable test for its review of the Hearing Officer’s decision in the following words (at p. 3 of the reasons):

Our role on review is clearly set out and limited. We are not to second-guess the decision of the Adjudicator. As stated in the now oft-quoted [sic] passage from Williams v. OPP (1995) 2 O.P.R. 1047 at 1058: It is only in certain limited cases where it is open to us to reach a different conclusion from the trier of fact. This can only be based on the strongest ground. We must be of the view that there can be no other determination than the conclusions of the Adjudicator, as to the credibility of the witnesses, cannot be reasonably accepted.

We must believe that there has been a manifest error or that the conclusions are unreasonable and cannot be supported on the evidence (Norris vs. Loranger (1998) 2 P.L.R. 493).

31In this case, the task for the Commission was similar to the task of review by the judge of first instance in Dr. Q, supra. In the words of the Supreme Court of Canada in that case,

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 (at para. 39).

32The Supreme Court also observed, “The standard of clear and cogent evidence does not permit the reviewing judge to enter into a re-evaluation of the evidence” (para. 19). In other words, findings of fact and credibility are generally owed considerable deference by the reviewing body.

33It is not disputed that the standard of review for the Commission to apply to a decision of the Hearing Officer is that of reasonableness simpliciter, guided by the principles of deference enunciated above when credibility is in issue.

The Decision of the Commission

34The Commission correctly identified the key issue as being the credibility of Juan Blowes-Aybar and the Complainant. While the Commission enunciated the appropriate test for the standard of review, in essence it erroneously re-tried the case on the basis of the transcripts, and substituted its conclusions and findings of credibility for those of the Hearing Officer.

35The Commission criticized the Hearing Officer for discounting the evidence of the Respondent and the defence witnesses. It stated that the Hearing Officer failed to connect the conclusions to the evidence. As well, it criticized the Hearing Officer for accepting the evidence of the Complainant and her finding that the Complainant's evidence was “compelling, forthright and unwavering and that she had no relevant inconsistencies”.

36The Commission made the following factual findings and comments based upon their review of the transcripts:

In our view, a clear reading of the transcript shows much contradiction, inconsistency and non-recollection by M. D. on all areas. Her answers are frequently “I don't recall”. When trying to explain her continuing involvement with Juan Blowes-Aybar by stating “I didn't want to be rude”, her evidence begins to take on an air of incredulity.

On cross-examination she repeatedly changes her story when confronted with evidence which will be called. She admits repeatedly that her own explanations of her own conduct are unreasonable and unbelievable.

The Hearing Officer failed to consider any of this. In fact, in reading her decision in its entirety, we wondered if she had heard the same evidence which we read in the transcript.

37The Commission also criticized the Toronto Police Service for failing to conduct an adequate investigation. It stated that the prosecution was based solely on the uncorroborated evidence of the Complainant. They then reached the following conclusions (quoted earlier):

We are clearly of the view that the charges against Juan Blowes-Aybar were not proven on clear and convincing evidence. The evidence of Ms. D. was neither clear nor convincing. In fact, her story was incredible throughout.

38The Commission earlier commented that the Complainant's evidence was totally unsupported by the evidence, and took on an air of “incredulity”. The Commission failed to conduct any factual analysis whatsoever. No specifics were cited in its reasons.

39Mr. Chercover, counsel for the Respondent, acknowledged that he made a similar argument before the Commission to the one that he made before this Court. We can only assume that the Commission accepted his submissions, and, therefore, we outline the core of the submissions he made. He suggested that a review of the transcript supports a finding of “much contradiction, inconsistency and non-recollection” of the Complainant “on all areas”.

40The following are examples cited by the Respondent’s counsel of contradictions or inconsistencies in the evidence that were not adequately considered by the Hearing Officer:

• Whether marriage was discussed between the Complainant and Respondent in a verbal dispute conducted in Spanish during dinner on Friday, April 4, 1998, [the date of the incident].
• Whether the Complainant participated in a beer fight in the car during the ride back to the hotel on April 4, 1998.
• The amount of alcohol the Complainant had consumed on April 4, 1998.
• Whether on April 4, 1998, the Complainant and Respondent first went together to the Complainant's room and later to the Respondent's room, or whether they went directly to the Respondent's room.
• The fact that the members of the group with whom the Complainant socialized did not observe bruises or scratches on either the Complainant or the Respondent after the incident.
• That originally the Complainant in her statement to the police said that she did not know if the Respondent ejaculated, yet at the hearing she stated that he did not ejaculate.
• Whether the Complainant was told she could not leave the Dominican Republic if she chose to lay criminal charges, or whether she was told she would have to return to the Dominican Republic to prosecute the charges.
• Whether the Complainant assisted in raising bail for the Respondent by using her visa card.

41As well, counsel for the Respondent suggested that on “over one hundred occasions”, the Complainant stated that she could not recall, in answer to a question. The following are some of the examples of “can not recall” in answers given by the Complainant taken from the transcript of July 30, 2002 during her cross-examination:

• That she does not recall if the Respondent told her about his education on the first evening that they met in Canada before traveling to the Dominican Republic [Page 90]
• That she did not recall on that evening whether a kiss was exchanged in the Kelsey's parking lot, or in the car. [Page 93]
• Whether she sat in the front section or the back seat of the car on the Monday evening after they arrived in the Dominican Republic[the incident took place on Friday]. [Page 107]
• On Tuesday afternoon she did not recall if the Respondent was talking to other women. [Page 119]

42We conclude that the examples provided of “don’t recall” are in the realm of irrelevant minutiae. The contradictions in the evidence of the Complainant do not deal with essential facts. This was a lengthy cross-examination, which took two full days and included some 440 pages of transcript. The Complainant had provided several previous statements. There was not one example given by the Commission in its reasons or by counsel for the Respondent in submissions of any contradiction or “don’t recall” on essential facts.

The Decision of the Hearing Officer

43The Hearing Officer briefly outlined the factual allegations of the Complainant, as well as the version of the Respondent. She heard seven days of evidence, including three days of evidence from the Complainant.

44She commented in her reasons on all of the evidence, but confirmed that the essential issue was a contest of credibility between Ms. D. and Constable Blowes-Aybar.

45She informed herself with respect to the correct test to support a finding of discreditable conduct pursuant to the Police Services Act. The evidence to prove the allegations must be “clear and convincing” (s. 64(10)).

46The Hearing Officer considered the submissions of counsel for the Respondent with respect to assessing credibility. She stated at pages 7 and 8 of her reasons:

In his submissions, defence counsel, Mr. Harry Black, stated that when a court or tribunal has to decide a case like this you must look at four areas and consider:

(1) Whether there is consistency in the words and statements of witnesses.

(2) Whether or not on prior occasions Ms. D. has made statements inconsistent with her present testimony.

(3) Whether the account of the witness seems probable or not.

(4) Measure the demeanor and conduct of witnesses.

47The Hearing Officer considered, at pages 6 and 7, the version of events given by the Respondent and made specific negative findings with respect to his credibility:

Testifying in his own defence, Police Constable Blowes-Aybar, badge number 335 gave a vastly different version of the events than the witness Ms. D..

Constable Blowes-Aybar stated he had met Ms. D. the night before traveling to the Dominican Republic. He testified a romantic relationship quickly developed leading to three sexual encounters, one on the beach and twice in his hotel room.

He further denied all alleged instances of aggressive behaviour.

He stated Ms. D.'s charges against him were an attempt to extort money or force him into marriage, as she believed she was pregnant.

Under cross-examination he admitted he had not told investigators about the extortion.

The second witness for the prosecution, retired Detective Garry Smith, testified that Constable Blowes-Aybar had never reported any extortion to him.

Under cross-examination Detective Smith called attention to remarks written about him in the Constable's memo book and advised the tribunal that they were not true.

48She then elaborated on her findings with respect to the credibility of Constable Blowes-Aybar at pages 10 and 11:

I listened and carefully reviewed Constable Blowes-Aybar's evidence. He agrees meeting Ms. D. prior to leaving, agrees having a romantic relationship with Ms. D., but anything from that moment on is in dispute.

He denies all allegations of misconduct sexual or otherwise. He states at no time he exhibited any aggressive behaviour with anyone and is shocked by her allegations.

While watching Constable Blowes-Aybar testify under cross-examination I found that he had difficulty giving direct answers to the prosecutor's questions and at times his responses were rambling, especially when asked if Ms. D. version of events were true.

He has denied arguing with Ms. D. even when other witnesses have corroborated her testimony.

I found his testimony was contrived and tailored in an attempt to correspond with every allegation that Ms. D. alluded to. This was especially evident in his description of his chain being broken after Ms. D. had testified she pushed her broken chain under his bed.

Ms. D. described how she was lead to the bathroom and got into the shower on her own accord, as she feared provoking him would cause further attack. Constable Blowes-Aybar’s version is that during an argument she tried to hit him so he forced her into the shower. I give more credence to Ms. D.’s version.

I had concerns with the Constable's testimony when he said he could not remember the exact dates when he saw Ms. D. in the Toronto club, Babaloo’s. The next day while continuing his testimony he was able to produce notes with dates and descriptions of his observations.

Constable Blowes-Aybar is well versed with the judicial process and the importance of notes and it raised a question in my mind why these notes were not produced or referred to by the Constable the day before.

I have reviewed and studied all the evidence in its totality and I have reached the conclusion that I do not accept Constable Blowes-Aybar’s version of what transpired in the Dominican Republic involving Ms. D..

49With respect to the Complainant’s evidence, the Hearing Officer made the following findings of fact at pages 8-10 of her reasons, and reached the following conclusions with respect to credibility:

I have reviewed the evidence of all witnesses extensively and have carefully observed their demeanor while testifying.

I found Ms. D. testimony was compelling, forthright, unwavering and possessed a most definite ring of truth. She was never shaken in the essentials of her evidence.

Ms. D. was not confused about events of what happened even after this passage of time and remained steadfast in her version of events, despite a lengthy and exhaustive cross-examination by defence.

When segments of her previous statements were read out in this tribunal I found it reinforced to me that she was describing the same sequence of events everytime and to all persons she had spoken to with no relevant inconsistencies.

Her description of being attacked was consistent with what she saw, felt and heard.

I believe Ms. D. was concerned about remaining in the Dominican Republic to pursue these allegations and when counseled rightly or wrongly to purse the matter in Canada she chose this to be more viable option (exhibit 22). Her contacting the Police upon her return to Canada subsequently supports this. Although I find her naïve in the operation of the judicial system her actions corroborate the truthfulness of her story.

Ms. D. had moved on to a new chapter in her life and stands to gain nothing by pursuing these allegations. I accept Ms. D.’s testimony and I am absolutely convinced she is telling the truth.

I agree with Mr. Wiley's submission that other witnesses support Ms. D.’s evidence before and after the incident.

The one exception would be with the witness Ms. Samantha Davies. I found there were many inconsistencies with her evidence and as well, she appeared to have a bias against Ms. D.. Therefore I have placed little weight upon her testimony.

Conclusions

50We conclude that the decision of the Commission cannot stand, regardless of whether the standard of review of this Court is correctness or reasonableness simpliciter. We have considered carefully the submissions made by Respondent’s counsel, and as well have carefully reviewed the transcripts in reaching our conclusion.

51The Hearing Officer clearly considered all of the evidence, and in particular, the credibility of the Complainant and the Respondent. She concluded that the evidence supporting a finding of discreditable conduct was “clear and convincing”.

52The Hearing Officer's conclusion on page 9 of her reasons says it all, “I accept Ms. D.'s testimony, and I am absolutely convinced she is telling the truth”.

53This Court recently in Ressel v. College of Chiropractors of Ontario, [2003] O.J. No. 3032, clearly confirmed the importance of deference to the trier of fact in matters of credibility (at paras. 22, 24).

It would serve no useful purpose, indeed, it would fly in the face of the authorities cited above, to go through the evidence of each witness and compare and contrast the evidence of the witness with the evidence of other witnesses and its application to five (5) allegations of professional misconduct.

The Appellant's handicap is that the Committee did not believe him. [Emphasis added]

54The Respondent in this case suffers the same handicap. Simply put, the Hearing Officer did not believe him.

55The Commission, as the reviewing tribunal, initially enunciated the correct stringent legal test for its review of the Hearing Officer’s decision. The Commission then, in application of the test, failed to respect the limitations of a reviewing tribunal when credibility is in issue having regard to the principles enunciated in Williams, supra of manifest error, and in Law Society of New Brunswick v. Ryan (2003), 2003 SCC 20, 223 D.L.R. (4th) 577 (S.C.C.), at para. 47 and 49:

The standard of reasonableness basically involves asking “after a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?”…Deference is built into the question since it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo in its own reasoning on the matter. …

…[T]he reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal and “look to see” whether any of those reasons adequately support the decision. Curial deference involves respectful attention, though not submission to, those reasons...

56For these reasons, we conclude that the Commission erred when it in practice applied the wrong legal test for review and overreached its review jurisdiction. It in essence retried the case, based upon a review of the transcripts, and purported to make findings of credibility without the benefit of hearing any evidence. Thus, it failed to respect the principle of deference to the trier of fact when the issue is credibility. It also failed to provide any factual analysis that would justify its decision.

57Therefore, the Commission’s decision is set aside. In our view, the careful reasons of the Hearing Officer in her decision are amply supported by the evidence, and her decision was reasonable.

Other Issues Raised by the Respondent

Admissibility of the Dominican Republic Medical Report

58The Respondent suggested that the Hearing Officer erred in considering the medical report dated April 4, 1998 prepared by the forensic doctor from the Dominican Republic, Dr. Pedro Claxton. There is no dispute that the Complainant, shortly after the incident, attended a medical examination.

59The medical report is clearly admissible in evidence pursuant to s. 15(1) of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22. It reads:

Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible in evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

Subsections (2) and (3) do not apply here. As well, the report meets the hearsay test of reliability and necessity. It was prepared on the date of the incident by a forensic doctor at the request of the police.

60The medical report is brief. The original is written in Spanish, sworn and notarized. The translation provides:

Slight trauma on neck

And inside mouth

With long-dated perforated hymen

Signals of recent sexual relations

61The Respondent called many witnesses suggesting that the complainant exhibited no marks or bruising on her body after the incident. The medical report was introduced in reply to provide corroboration for her allegations that the Respondent attempted to strangle her and put his fingers into her mouth during the assault.

62The Hearing Officer made the following observations with respect to the medical report:

Although witnesses commented on lack of visible injuries to Ms. D., I cannot ignore the medical report [exhibit 47] submitted by the prosecution from the Dominican Republic that substantiates her version of events.

63The Respondent purports now to object to the accuracy of the translation, and the admissibility of the document. The Respondent is Spanish speaking. The medical report is in Spanish, and both the original and the translation were admitted into evidence before the Hearing Officer. The Respondent was cross-examined with respect to its contents. No issue was raised at the time with respect to the accuracy of the translation.

64We note that in 2001 the Respondent retained a former police officer, George Jackson, to attempt to locate witnesses and to investigate the matter in the Dominican Republic. Mr. Jackson made no attempt to contact or interview Dr. Claxton to question the contents of the report.

65We conclude that the Hearing Officer made no error in admitting the medical report into evidence, and that it was properly considered by her.

The Evidence of Mr. Jackson

66The Respondent suggested that it was not reasonable of the Hearing Officer to consider the medical report, and then to reject the evidence of Mr. Jackson. Respectfully we disagree. The Hearing Officer stated: “I thank Mr. George Jackson for his testimony, but due to many discrepancies I find that it did not assist me in my findings”.

67The Respondent sought to introduce through Mr. Jackson a statement he prepared after interviewing the lawyer who assisted the Complainant when the criminal charges were withdrawn.

68The quality of this evidence was problematic. The interview was not taped. It took place some three and a half years after the incident. The questions were asked in English, translated into Spanish, answers given in Spanish then translated into English. The interview took place in a lobby of a hotel. There were discrepancies between the notes and the statement. In these circumstances, the Hearing Officer was justified in concluding that the evidence of Mr. Jackson did not assist her in her findings.

Failure to Investigate

69The Commission was incorrect in its finding that the Toronto Police Service failed to interview the Canadian witnesses who were with the Complainant and the Respondent on the night of the incident, and following. These witnesses were interviewed and statements taken. It would perhaps have been helpful to have at least spoken to the Dominican Republic police as part of the investigation. In our view, this omission does not justify interference with the Hearing Officer’s decision. The evidence before her met the test of clear and convincing evidence.

The Penalty

70After concluding that the Respondent was guilty of discreditable conduct, the Hearing Officer heard lengthy submissions and evidence with respect to the appropriate penalty. No oral submissions were made by the Respondent in this appeal questioning the appropriateness of the penalty. However, counsel suggested in his factum that dismissal was not an appropriate penalty, having regard to the offence taking place outside Canada, while the Respondent was off duty, and having regard to his exemplary police record and character references. The defence suggested that the appropriate penalty in the circumstances is forfeiture of twenty days pay.

71Respectfully, we disagree. The penalty was imposed by the Hearing Officer after hearing lengthy submissions and character evidence. She was a veteran police officer with 29 years of service. The issue of the appropriateness of the penalty was not canvassed in the Commission’s reasons. We conclude that the penalty was reasonable, given the facts of this case and conclude that it would be inappropriate for this Court to interfere with a discretionary decision squarely within the expertise of the Hearing Officer.

72For these reasons, the appeal is allowed and the decision of the Ontario Civilian Commission on Police Services dated August 12, 2003 is set aside and the decision of the Hearing Officer, Superintendent Jane Dick, dated November 11, 2002 as well as the sentence imposed by her, dated January 30th, 2003 is restored. If the parties are unable to agree with respect to costs, short written submissions may be submitted by the parties within 30 days of the release of this decision.

MacFARLAND, J.