COURT FILE NO: 341/06

DATE: 20070709

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: MILES WHITNEY Appellant

• and –

CONSTABLE NEIL GONZALEZ, ONTARIO PROVINCIAL POLICE, and ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES Respondents

BEFORE: Lane, Lederman, and Swinton, JJ.

COUNSEL: Dale Whitney, by leave, Agent for the Appellant Lorna Boyd, for the Respondent Constable Neil Gonzalez Jinan Kubursi, for the Respondent Ontario Provincial Police

Heard at Toronto: June 21, 2007

ENDORSEMENT

1At the close of the hearing the Court dismissed the appeal with reasons to follow. These are the reasons.

2The Appellant appeals from a decision of the Ontario Civilian Commission on Police Services (the “Commission”). The Commission upheld the decision of the Hearing Officer who found that the Respondent, Constable Neil Gonzalez (the “Officer”), was not guilty of discreditable conduct within the meaning of s. 2(1)(a)(xi) of the Code of Conduct in O. Reg. 123/98 made under the Police Services Act, R.S.O. 1990, c.P.15 (the “P.S.A.”). The charge of discreditable conduct arose from the allegation that the Officer detained the Appellant and administered a breath test to detect alcohol levels, and in doing so, breached the Appellant’s rights guaranteed by the Charter of Rights.

3The Appellant appeals to this Court pursuant to section 71 of the P.S.A. Leave was granted by Kiteley J. to permit Dale Whitney to act as agent for the Appellant, Miles Whitney.

4The standard of review on an appeal from the Commission is reasonableness where the question involves mixed fact and law, and correctness when the issue is a pure question of law.

5Dale Whitney submitted that the Hearing Officer made errors which are reviewable in this Court: namely, that he misapprehended the evidence in that there was no evidence to support the Hearing Officer’s finding that the Appellant knew the purpose of the breath test and that he was aware that no criminal charges could result from it; made findings of credibility that were not supported by the evidence; and further, made an error in law in finding that the Appellant’s Charter rights were not breached by the Officer.

6The issue before the Hearing Officer was whether, as the Officer contended, the Appellant had agreed to voluntarily submit to a breathalyzer test in order to ensure that it was safe for him to drive away from the camp site.

7In this regard the Officer testified as follows:

It was very relaxed, very casual. I told the two parties that there was a concern with regard to their sobriety and that I’d conduct a voluntary roadside screening device test. They agreed to take the test. I indicated to them that it’s a very simple procedure. And I prepared to warm up the device, which takes a few minutes.

8On the other hand, the Appellant testified that he was not offered an explanation or clearly told what would happen to them if he did not comply with a breath test. He specifically testified that the word “voluntary” did not come up.

9The Hearing Officer found an inconsistency in the evidence of the Appellant who first testified that he did not drink any alcohol and then acknowledged his use of Bailey’s Irish Cream in his coffee that morning. Although he did not agree with the Hearing Officer’s findings, Dale Whitney conceded in argument that there was some evidence to support the Hearing Officer’s finding of credibility in favour of Constable Gonzalez.

10With respect to decisions on credibility, the Commission and the Divisional Court are guided by principles of deference in that the Hearing Officer is in a better position to make assessments of credibility. Given that there is evidence to support the Hearing Officer’s conclusions, his acceptance of the Officer’s testimony as credible was reasonable.

11There also was evidence to support the Hearing Officer’s finding that the Appellant knew the purpose of the breath test and was aware that no criminal charges could result. The Appellant testified (at p. 91 of the transcript) that he knew prior to the Officer arriving at the scene that he was going to give a breath sample to show that he was not at risk of being an impaired driver and could leave the park.

12Since the Hearing Officer found that the Appellant took the breath test voluntarily, it cannot be said that any of the Apellant’s Charter rights were breached. Thus, the Hearing Officer made no error of law in this regard.

13Even if there was a Charter breach by the Officer in detaining the Appellant and failing to caution and fully inform him of his rights before administering the breath test, that violation does not necessarily amount to discreditable conduct.

14There is no suggestion that the Officer was acting other than in good faith in the discharge of his duties out of concern that the Appellant and the other campers would travel safely on the public highways.

15As in most cases, the context is important. In the present case the Officer was called to the camp site by the park Wardens who were concerned about evicting out on the highway drivers who may have alcohol in their systems. The Appellant encouraged that the police be called to resolve the dispute that he had with the Wardens and was expecting the Officer’s arrival. The Appellant and his fellow campers had been evicted from the park but would have to remain at the site until sober if they were not fit to drive. Given that context, a reasonable person would view the Officer’s actions as professional in that they were directed at ensuring the safety of the Appellant and the public. It was, therefore, reasonable for the Hearing Officer to conclude that his conduct was not discreditable.

16Accordingly, the Hearing Officer made no error of law and his findings of fact and credibility were reasonable, as was the decision of the Commission.

17The appeal is dismissed. The Ontario Provincial Police does not seek costs. If the other parties cannot agree upon costs, they may make written submissions within 30 days.

Lane J.

Lederman J.

Swinton J.