Wolfe v. Ontario Provincial Police, 2008 CanLII 23503 (ON SCDC)

COURT FILE NO.: 490/05

DATE: 2008-05-20

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

KITELEY, SWINTON and LOW JJ.

B E T W E E N:

SERGEANT MARK WOLFE #7158 Appellant

• and -

ONTARIO PROVINCIAL POLICE Respondent

Joanne Mulcahy, for the Appellant

Lorenzo D. Policelli, for the Respondent

HEARD at Toronto: April 2, 2008

SWINTON J.:

1Sergeant Mark Wolfe appeals from a decision of the Ontario Civilian Commission on Police Services (the “Commission”) dated November 16, 2005, which upheld the decision of a Hearing Officer finding him guilty of one count of discreditable conduct. The issue on this appeal is the reasonableness of the Commission’s decision, both with respect to the finding of discreditable conduct and the penalty imposed.

Background

2The charge against the appellant arose as a result of the discharge of his firearm during a police pursuit of a stolen car on February 15, 2003. On that evening, the appellant, a member of the Ontario Provincial Police (“OPP”), was on duty as a shift supervisor in the Kawartha Lakes Detachment.

3Around 8:21 PM, the OPP Communications Centre advised officers that a 1998 Ford Contour had just been stolen by a man smelling of alcohol from a grocery store in Norland, Ontario. Constable Chris Lewis soon spotted the vehicle on Highway 35, travelling at a high rate of speed and in an erratic manner. He followed the vehicle, which fled at high speed. At points, the car was being driven on the wrong side of the road.

4At one point, the car suddenly pulled over to the side of the road. Constable Lewis pulled in behind, called for assistance, and exited his police car. The driver of the stolen car then pulled away, going south. Constable Lewis returned to his car, activated his lights and sirens and began a pursuit. He observed the stolen car travelling at approximately 160 to 180 kilometres per hour, mainly in the oncoming lane. A number of northbound cars were forced to pull over onto the shoulder.

5Other police officers, including the appellant, began to move to the direction of the pursuit. The appellant coordinated their efforts, including ordering one officer to deploy a spike belt.

6At some point, the driver slowed, and Constable Lewis saw him discard a black, v-shaped object. At some point in the pursuit, this was identified as a gun, although no gun was found subsequently.

7On three occasions, the driver of the stolen vehicle braked suddenly, in an attempt to have Constable Lewis’ police car strike the stolen car. Each time, Constable Lewis was able to stop before impact. On the fourth occasion, Constable Lewis was not able to stop, and he hit the stolen car. The airbags in the police car deployed, and the windshield broke. Nevertheless, Constable Lewis continued the pursuit, and he was joined by the appellant in another car.

8Another officer, Constable Deyell, had laid a spike belt across the southbound lane and parked his vehicle so as to block the northbound lane. The stolen vehicle crossed the belt at around 160 kilometres an hour, but did not stop. Beyond the belt, another officer, Constable McDermott, attempted a rolling block with his vehicle. The driver of the stolen vehicle smashed into the rear passenger door of the police vehicle and kept going.

9The appellant followed the stolen vehicle and rammed it, causing it to skid, spin and stop. The appellant’s vehicle stopped several car lengths beyond the stolen vehicle.

10Four police vehicles were present, and the officers approached the stolen vehicle. Two approached from the rear on the passenger side. One, armed with pepper spray, tried to open the passenger door, which was locked. Another officer had his baton out with the intention to break the passenger window.

11The appellant drew his firearm as he exited his vehicle. He observed two figures by the rear back corner of the vehicle. As he approached the vehicle with his gun in the low ready position, he heard the motor revving and saw smoke from the wheels spinning. He testified that he feared for his life, but did not shoot as he was concerned that he might hit the officers behind the vehicle. As the car started to move towards him, he stepped to the right. As the vehicle went past him, he “dug down low”, in his words, and discharged two rounds at the rear wheels of the vehicle as it passed.

12Constable McDermott testified that he also drew his firearm, because he thought that the driver of the stolen vehicle was going to run over the appellant. He was about to shoot when the appellant jumped out of the way.

13The vehicle did not stop, so the appellant ran to his car and continued the pursuit. The stolen vehicle again veered into the northbound lane, where there was oncoming traffic. The appellant then rammed the vehicle again, sending it into a snow bank. The car was pinned by a number of police vehicles, and the officers were able to arrest the driver, although one officer was injured in the course of the arrest.

14The pursuit had spanned 32 kilometres and lasted approximately 10 minutes. Six officers and five police cars were involved.

The Charge

15The appellant was charged with one count of discreditable conduct pursuant to s. 2(1)(a)(xi) of the Code of Conduct, O. Reg. 123/98 in connection with the use of his firearm. Section 2(1)(a) defines discreditable conduct in a number of ways, with (xi) stating, “acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force”. In particular, the appellant was alleged to have acted contrary to s. 8 of O. Reg. 546/99 – Suspect Apprehension Pursuits, made under the Police Services Act¸ R.S.O. 1990, c. P.15 (the “Act”). That provision states,

A police officer shall not discharge his or her firearm for the sole purpose of attempting to stop a fleeing motor vehicle.

The Decision of the Hearing Officer

16After a seven day hearing, the Hearing Officer issued a decision on February 28, 2005 in which he determined that the appellant had discharged his firearm contrary to s. 8 of O. Reg. 546/99 and, therefore, was guilty of discreditable conduct.

17In his reasons, the Hearing Officer described the chase and, in particular, what occurred after the appellant rammed and stopped the stolen vehicle for the first time. He noted that much occurred in a ten second period. He also observed that the appellant had put himself in danger by approaching the vehicle while the engine was revving and the front tires were spinning. He stated that when the vehicle moved, the appellant moved to the right and discharged two rounds into the rear wheel assembly as the vehicle passed him. The Hearing Officer also referred to the appellant’s testimony that he did this because he feared for his life and safety. He also said that the appellant testified that “he wished to stop the threat. Johnston [the driver] had endangered his men and that of the public by his actions on the Highway” (Record, p. 40).

18The Hearing Officer cautioned himself on the danger of using hindsight in determining what happened at the time the firearm was discharged. He then went on to find that the appellant was no longer in danger at the time the firearm was discharged (Record, p. 40). He then concluded,

The vehicle was not pinned and the resulting discharge of his firearm was the second attempt to stop a fleeing motor vehicle. His life at this point was not in danger. This was his sole purpose; Johnston sped away and was subsequently struck a second time by WOLFE resulting in the arrest.

19The Hearing Officer went on to agree with the submission of the prosecuting officer (Record, p. 41):

Sergeant WOLFE needed to maintain his primary role as Supervisor. He got entirely involved in the apprehension of the suspect vehicle. It is not difficult to understand his motivation or his actions. There is no doubt his goal was to stop Johnston and end the risk that he posed for the public and other officers.

20The Hearing Officer then concluded that the appellant discharged his firearm contrary to s. 8 of O. Reg. 546/99 and, therefore, was guilty of discreditable conduct. Subsequently, on April 15, 2005, he imposed a penalty of the forfeiture of 12 hours pursuant to s. 68(1)(f) of the Act. He required that this be accomplished by the appellant working on an annual leave day or rest day. He also required that this be done within one month, and that the Professional Standards Bureau be informed when the hours had been completed.

The Decision of the Commission

21On appeal, the Commission upheld the decision of the Hearing Officer, although it varied the penalty to remove the requirements that the penalty be carried out within one month and that the Professional Standards Bureau be notified after completion.

22The Commission described its role on appeal in the following words:

… our function is to determine whether or not the conclusions of the Hearing Officer are without evidentiary foundation or cannot be reasonably supported (Record, p. 17).

It went on to say that the “heart of the case” before the Hearing Officer was “the appropriateness of the use of a firearm in a particular situation”, and that the “reasonableness” of the appellant’s actions must be assessed in the legislative context.

23The Commission determined that the prohibition on the discharge of a firearm in s. 8 of the regulation is not absolute. Reference was made to an obvious exception where “the officer has a reasonable immediate fear for his or her life or that of another person” (Record, p. 18).

24The Commission went on to describe the Hearing Officer’s conclusions:

Given the fact that the stolen vehicle was passing Sergeant Wolfe the Hearing Officer did not accept as reasonable his explanation that he had an immediate fear for his life. Clearly, at that point in time the suspect vehicle was not a “weapon” directed at him. On the evidence presented, we believe these were conclusions open to the Hearing Officer, an experienced police officer, to make. (Record, p. 19)

The Commission also noted that there was no evidence that the vehicle was being driven at any of the other officers when the shots were fired.

25In upholding the decision, the Commission stated (Record, p. 20):

Given Sergeant Wolfe’s conduct during the course of the pursuit that evening, the Hearing Officer appears to have reached the conclusion that his actions demonstrated a deliberate, focused, organized and singular intention to stop the suspect vehicle. On the facts presented, we accept that this is a conclusion that can be reasonably supported.

The Standard of Review

26Pursuant to s. 71(1) of the Act, an appeal lies to the Divisional Court from a decision of the Commission. On an appeal, this Court is to apply a standard of reasonableness with respect to the Commission’s decision on discreditable conduct and the penalty to be applied (Ontario Provincial Police v. Favretto, 2004 34173 (ON CA), [2004] O.J. No. 4248 (C.A.) at paras. 50 and 52).

27The Supreme Court of Canada has described the reasonableness test in Dunsmuir v. New Brunswick, 2008 SCC 9 as follows (at para. 47):

Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Analysis

28The appellant was charged with discreditable conduct in that he was alleged to have breached s. 8 of O. Reg. 546/99. Relying on Monaghan v. Toronto (City) Police Service, [2005] O.J. No. 1396 (Div. Ct.) at para. 22, he submitted that the Commission erred in upholding the decision because the Hearing Officer failed to make an express finding that his conduct was likely to bring discredit on the police force, which is an element of s. 2(1)(a)(xi) of the Code of Conduct.

29I would not give effect to this ground of appeal. The Hearing Officer made a finding that the appellant contravened s. 8 of O. Reg. 546/99 and, therefore, he was guilty of discreditable conduct. This was a reasonable decision, given that discreditable conduct is defined to include conduct that contravenes any provision of the Act or the regulations (Code of Conduct, s. 2(1)(a)(x)). Therefore, the Commission did not err in failing to address this issue.

30The appellant also submitted that the Hearing Officer failed to properly apply s. 8 of O. Reg. 546/99, as he did not give proper effect to the words “sole purpose”. Therefore, he argued, the Commission acted unreasonably in upholding the decision. In my view, there is merit to this argument.

31Section 8 provides that “[a] police officer shall not discharge his or her firearm for the sole purpose of attempting to stop a fleeing motor vehicle” (emphasis added). However, the prohibition on the discharge of a firearm during the pursuit of a vehicle is not absolute. For example, s. 9 of O. Reg. 926/90, Equipment and Use of Force, provides:

A member of a police force shall not draw a handgun or discharge a firearm unless he or she believes, on reasonable grounds, that to do so is necessary to protect against loss of life or serious bodily harm.

In addition, s. 25(4) of the Criminal Code, R.S.C. 1985, c. C-34 permits a peace officer to use force that is intended to cause death or grievous bodily harm during the course of an arrest when the officer believes, on reasonable grounds, that force is necessary for the purpose of protecting the officer or another person from imminent or future death or grievous bodily harm, and flight cannot be prevented by reasonable means in a less violent manner.

32Given that the regulation prohibits the discharge of a firearm for the “sole purpose” of stopping the fleeing vehicle, the Hearing Officer was required to determine whether the only purpose for which the appellant discharged his firearm was to stop the vehicle. This required him to determine the appellant’s state of mind at the time he discharged his weapon. In my view, he failed to do this. Instead, the Hearing Officer appears to have approached this case on the basis of whether the discharge of the firearm was reasonable in the circumstances, even though the appellant was not charged with a violation of s. 9 of O. Reg. 926/90.

33The Hearing Officer made reference to the Brown and Haldimand-Norfolk Regional Police case (1987) O.P.R. 766 as the decision most similar to the one before him. There, however, the officer had been charged with discreditable conduct related to the allegedly improper discharge of his firearm contrary to s. 9 of O. Reg. 926/90. He had fired into the radiator of a car that was coming at him at a high rate of speed. The Ontario Police Commission quashed the finding of discreditable conduct, holding that the officer’s conduct must be assessed by looking at his state of mind when he fired and determining the reasonableness of his fear for his life in the circumstances. The Commission accepted the officer’s evidence that he feared for his life, and found that the fear was reasonable in the circumstances.

34In the present case, the Hearing Officer concluded that the appellant was out of danger when he fired his gun. He distinguished Brown on the basis that the officer there fired when the car was bearing down upon him.

35An inquiry into the reasonableness of the use of force is the kind of analysis to be made when a charge is brought alleging a breach of s. 9. Here, the charge related to s. 8. Discipline is warranted under that provision only if the “sole purpose” for discharging the firearm was to stop the fleeing vehicle. If the officer had other purposes, such as the protection of his life or the safety of the other officers or members of the public, then he has not contravened s. 8.

36Therefore, the task for the Hearing Officer was to assess the appellant’s evidence, in light of the evidence of the other witnesses, and to determine what was in the appellant’s mind when he discharged the firearm. This is a subjective inquiry. Instead, the Hearing Officer appears to have determined whether there was a reasonable use of force on an objective basis, rather than determining what the appellant’s purpose was. In doing so, he misapplied s. 8.

37There was extensive evidence with respect to the appellant’s purpose and state of mind. He testified that as he approached the car, he believed that the suspect had a weapon because of information he had received by radio. When he heard the tires screeching and the engine revving, he thought he was going to die. However, he did not shoot for fear of hitting the officers to the rear of the car. Instead, he stepped to the right, dug down and fired into the rear wheel assembly. He testified,

…I did that because I feared for my safety. I feared for my life. I had watched that man attack members of my platoon using his vehicle as a weapon, and in mere seconds that was what I did to stop that threat and to protect my life and anyone else’s life that he was going to take that night, and that’s what I did. (Record, p. 439)

38He also stated that his sole purpose was not to stop the vehicle:

It was he had driven his motor vehicle at me. He had used it as a weapon. I feared for my safety, and in the seconds that I had and as he was beside me, I discharged my firearm, but it was never for the sole purpose of stopping that motor vehicle. (Record, p. 459)

39Finally, in response to questions from the Hearing Officer, he stated, “I feared for my life. He was using a vehicle as a threat, a tool against me” (Record, p. 473). He also described the digging in and discharge as a “continuation” of what went before, stating:

I mean, I’ve been a policeman a long time. I’ve never shot at a vehicle to stop it. That was not in my head. If it would have been, I probably would have used it miles before, suggested it. That was never in my mind. I was threatened by that vehicle that was coming at me, and it’s seconds, so quick. (Record, p. 473a)

40The Hearing Officer made reference in his reasons to the appellant’s testimony about his feelings and state of mind through the few seconds between his exit from his car and the discharge of the weapon. He noted that the appellant stated that he feared for his life and safety, and he also feared for his officers and the public. If accepted, that testimony logically leads to the conclusion that the appellant’s sole purpose in discharging his firearm was not to stop the vehicle. The appellant’s evidence was that his purpose was to stop the driver from using the stolen vehicle as a weapon against him and other officers and to end the serious danger to his officers and the public. Indeed, at one point, the Hearing Officer seems to accept this evidence in part, when he stated that there was “no doubt his goal was to stop Johnston and end the risk that he posed for the public and other officers” (Record, p. 41).

41However, the Hearing Officer does not really assess the appellant’s evidence, nor does he bring it to bear in determining the appellant’s purpose. In his decision, the Hearing Officer made no adverse finding about the appellant’s credibility, nor did he reject the appellant’s evidence about his state of mind. In his decision on penalty, he held that “credibility, honesty and integrity are characteristics that I have no doubt Sgt. WOLFE possesses” (Penalty Reasons, at p. 2).

42It was not reasonable to find the appellant credible, yet disregard his uncontradicted evidence as to his purpose. Nor was it reasonable to conclude that the appellant’s goal was to put an end to the risk to the public and officers, but to conclude earlier in his reasons that the appellant’s sole purpose for discharging the firearm was to stop the vehicle. There is a logical inconsistency in the Hearing Officer’s reasoning.

43The Hearing Officer was very critical of the appellant’s course of action, mentioning several times that the appellant had put himself in danger by exiting his vehicle and approaching the stolen vehicle. He also observed critically that the officers had failed to pin the stolen vehicle in, and as a result the vehicle sped away. All of those are extraneous matters. None were relevant to the appellant’s state of mind at the time of the shots.

44The task for the Hearing Officer was to determine the appellant’s purpose, not the reasonableness of it, as he would have had to do under s. 9. The Hearing Officer’s decision does not fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, supra at para. 47), because he failed to appreciate the inquiry necessary under s. 8; he failed to give any weight to the evidence of the appellant concerning his purpose, while giving no basis for not accepting that evidence; and he took into account extraneous matters.

45The Commission, too, approached its review of the Hearing Officer’s decision in an erroneous manner. In its reasons, the Commission stated that the heart of the case was the appropriateness or the reasonableness of the appellant’s use of his firearm. The Commission observed that the appellant could have justifiably discharged his firearm when the vehicle was being driven at him (Record, p. 19), but not when he stepped to the side, because the Hearing Officer found that his life was no longer in danger. Nowhere does the Commission turn its mind to the words of s. 8 and the need to consider what was in the mind of the appellant.

46Therefore, the Commission, too, reached an unreasonable decision, because it focussed on the appropriateness of the discharge of the firearm and the adequacy of the evidence to determine that issue, rather than the proper application of s. 8 and the evidence related to the appellant’s state of mind.

47The Commission concluded that “the Hearing Officer did not accept as reasonable [the appellant’s] explanation that he had an immediate fear for his life” (Record, p. 19). The Commission also seemed to find the Hearing Officer’s conclusion to be reasonable because none of the other officers were endangered by the vehicle when the shots were fired.

48However, this ignores the appellant’s evidence that he fired, in part, because he feared for his officers and the public, as well as the total context in which he reached that conclusion. Given the erratic and dangerous behaviour of the driver, the intentional damage to Constable Lewis’ vehicle, and the hitting of Constable McDermott’s vehicle, as well as the use of the car to try to strike the appellant, there was substantial evidence of a serious danger to the other officers and the public. Moreover, Constable McDermott testified that he drew his weapon when he thought that the driver of the stolen vehicle was going to run over the appellant. He was about to shoot when the appellant jumped out of the way.

49The decisions of both the Commission and the Hearing Officer were unreasonable because of the failure to focus on the appellant’s purpose in firing the weapon, as required by s. 8 of the regulation. The decision of the Commission must be set aside. The issue then becomes the appropriate disposition of the appeal by this Court. The appellant seeks an order that the decision of the Hearing Officer be set aside because the complaint was not substantiated.

50On an appeal from the Hearing Officer to the Commission, the Commission may “confirm, vary or revoke the decision being appealed or may substitute its own decision” for that of the chief of police (s. 70(6) of the Act). An appeal lies to the Divisional Court on a question that is not a question of fact alone, from a penalty imposed or from any other action taken (s. 71(2)). Section 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 states that unless otherwise provided, a court to which an appeal is taken may “make any order or decision that ought to or could have been made by the court or tribunal appealed from”.

51Had the Commission approached this case properly, it would have had to find the decision of the Hearing Officer to be unreasonable and the complaint to be unsubstantiated. In the circumstances of this case, it is not appropriate to send this case back for another hearing before the Commission, given the uncontradicted evidence of the appellant as to his state of mind and considering that evidence in the context of all that had happened during the pursuit, especially in the few seconds between the appellant’s approach to the stolen vehicle and the firing of his gun. His evidence as to his fear for his life and his fear for the other officers and the public was never rejected by the Hearing Officer. It is clear when that evidence is properly considered that the appellant’s sole purpose was not to stop the vehicle, but to prevent the further use of the vehicle as a dangerous weapon. On the evidence before the Hearing Officer, there was no basis to find the appellant guilty of discreditable conduct because of a violation of s. 8.

52Therefore, the appeal is allowed. The decisions of the Commission and the Hearing Officer are set aside, and the charge of discreditable conduct is dismissed. As agreed by the parties, no costs are awarded.

Swinton J

Kiteley J.

Low J.