COURT FILE NO.: 609/06

DATE: 20081015

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, SWINTON AND KARAKATSANIS JJ.

B E T W E E N:

POLICE CONSTABLE BRANDON WILSON

Appellant

• and -

THE ONTARIO PROVINCIAL POLICE SERVICE

Respondent

Leo A. Kinahan, for the Appellant

Lynette E. D’Souza, for the Respondent

HEARD at Toronto: September 11, 2008

Swinton J.:

1Police Constable Brandon Wilson (the “appellant”) appeals from the decision of the Ontario Civilian Commission on Police Services (the “Commission”) upholding the decision of a Hearing Officer finding the appellant guilty of unlawful or unnecessary exercise of authority under the Police Services Act, R.S.O. 1990, c. P.15.

2The issue in this appeal is whether the Commission made an unreasonable decision in upholding the Hearing Officer’s decision, given the Hearing Officer’s treatment of the evidence in his brief reasons.

Background Facts

3The charges against the appellant arose as a result of events on April 19, 2003 in Barry’s Bay, Ontario. The appellant was alone on duty that evening. He was driving his OPP car when he saw Jerry Yakabuskie and Vanessa Cowan walking down the street in a residential area. Mr. Yakabuskie yelled a comment, the content of which is disputed. Mr. Yakabuskie and Ms. Cowan testified that he called “Happy Easter”, while the appellant heard “fuck you, fucking pig, fuck off”.

4The appellant stopped his car and asked Mr. Yakabuskie to identify himself. Mr. Yakabuskie refused to do so. The appellant then got out of his car and again asked Mr. Yakabuskie to identify himself. Again, there was a refusal, and Mr. Yakabuskie walked away. The appellant testified that he observed a strong smell of alcohol, Mr. Yakabuskie’s eyes were bloodshot and blurry, and his speech was slurred.

5As a result of his observations, the appellant arrested Mr. Yakabuskie for failing to identify himself and for being “intoxicated in a public place” contrary to the Liquor Licence Act, R.S.O. 1990, c. L.19 (the “LLA”). The appellant testified that he arrested Mr. Yakabuskie because

the male was drunk, he was refusing to identify himself and he was walking away. I feel he was either in danger of himself or somebody else.

6The appellant testified that he took Mr. Yakabuskie by the hand to escort him to the police car. Subsequently, there was a struggle between the two men. The appellant testified that he feared being assaulted, so he hit Mr. Yakabuskie three to four times in the head with his hand. Mr. Yakabuskie ended up on the ground, with the appellant kneeling on his back with one knee. The appellant handcuffed Mr. Yakabuskie and placed him in the OPP cruiser.

7Mr. Yakabuskie was driven to the detachment and charged with resisting arrest as well as the LLA offences. He was released around 4:00 the next morning, and the appellant and another officer drove him home. Mr. Yakabuskie went to the hospital later that morning.

8As a result of a complaint made by Mr. Yakabuskie, the appellant was charged with unlawful or unnecessary exercise of authority for making an unlawful or unnecessary arrest and using unnecessary force against a person contrary to s. 2(g)(i) and (ii) of the Code of Conduct contained in the Schedule to O.Reg. 123/98.

9The charges against Mr. Yakabuskie were ultimately withdrawn or dismissed.

The Decision of the Hearing Officer

10The Hearing Officer gave brief reasons of 7 pages on May 11, 2005, following two days of evidence and a further appearance for submissions. He reviewed the evidence given by various witnesses, including the appellant, Mr. Yakabuskie and Ms. Cowan. He discussed the submission of the appellant’s counsel that Mr. Yakabuskie and Ms. Cowan were not credible witnesses.

11The Hearing Officer stated that while some of Mr. Yakabuskie’s responses were self-serving, his evidence was credible, when considered with the evidence of other witnesses. He also concluded that Ms. Cowan was a credible witness despite some inconsistencies in her testimony. He then concluded that the charge had been proved on clear and convincing evidence.

The Commission’s Decision

12The main ground raised by the appellant in his appeal to the Commission was the misapprehension of evidence by the Hearing Officer. In particular, the appellant relied on the failure of the Hearing Officer to set out why he believed or did not believe the appellant, given the conflicting testimony of the witnesses.

13The Commission began its analysis by setting out its role – namely, to determine whether the conclusions of the adjudicator were without evidentiary foundation. It noted that appeals are on the record, and the members had had the opportunity to review all the evidence submitted.

14The Commission observed that while the reasons of the Hearing Officer “could have been more detailed”, the decision was not void of evidentiary foundation. The Commission then reviewed the evidence in detail, particularly the testimony given by the appellant. The Commission considered the inconsistencies in the evidence of Mr. Yakabuskie and Ms. Cowan relied upon by the appellant and concluded they were “peripheral” to the central issue.

15The Commission referred to subsections 31(4) and (5) of the LLA, which authorize a police officer to arrest without warrant a person who is in an intoxicated condition in a place to which the general public is invited or permitted access. The Commission observed that Mr. Yakabuskie did not display any of the classical symptoms of intoxication when he was arrested, such as falling down or vomiting.

16The Commission reviewed the appellant’s evidence supporting his conclusion that Mr. Yakabuskie was intoxicated – namely, that there was a strong odour of alcohol on his breath, his eyes were bloodshot, and he showed an aggressive demeanour in response to questions. The appellant could not explain why he arrested Mr. Yakabuskie rather than escort him home or take him to a hospital pursuant to s. 36(1) of the LLA.

17The Commission then concluded:

Given the above, and the testimony of both Ms. Cowan and Mr. Yakabuskie it was certainly open to the Hearing Officer to conclude that the arrest in question was neither lawful nor necessary. (Reasons, p. 9)

18The Commission went on to state that the appellant should have been aware that an individual has the right to resist an unlawful arrest. Moreover, if an arrest is unlawful or unnecessary, then any use of force flowing from the arrest is improper. The Commission then stated,

On balance, we find that the Hearing Officer considered the evidence and made clear findings of fact about Constable Wilson’s demand for identification, the escalation during the encounter, the arrest and the subsequent struggle by the roadside.

In the Commission’s view, the Hearing Officer had found the appellant’s version of events less credible, and he preferred the evidence of Ms. Cowan and Mr. Yakabuskie.

The Standard of Review

19The standard of review of a decision of the Commission reviewing a finding of misconduct in a case such as this is reasonableness (Ontario Provincial Police Force v. Favretto, 2004 34173 (ON CA), [2004] O.J. No. 4248 (C.A.) at paras. 50 and 52; Galassi v. Hamilton (City) Police Service, [2005] O.J. No. 230 (Div. Ct.) at paras. 12-13).

Analysis

20As the appellant arrested Mr. Yakabuskie for failing to identify himself and being intoxicated in a public place under the LLA, it is useful to begin with an examination of the relevant statutory provisions. Subsection 31(4) sets out the offence of intoxication in a public place, while s. 31(5) sets out the power of arrest:

31 (4) No person shall be in an intoxicated condition,

(a) in a place to which the general public is invited or permitted access …

(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.

However, as an alternative to arrest, the police officer may take an intoxicated person to a hospital:

36(1) A police officer who finds a person apparently in contravention of subsection 31 (4) may take the person into custody and, in lieu of laying an information in respect of the contravention, may escort the person to a hospital designated by the regulations.

21Section 48 deals with arrest if a person fails to identify himself or herself:

If a police officer finds a person apparently in contravention of this Act or apparently in contravention of a prescribed provision of the regulations and the person refuses to give his or her name and address or there are reasonable grounds to believe that the name or address given is false, the police officer may arrest the person without warrant.

22Thus, in order to arrest for public intoxication, a police officer must have reasonable grounds to believe that an individual is intoxicated in a public place, and arrest is necessary for the protection of some person. A police officer can also arrest if he or she finds a person apparently in contravention of the LLA, and the person refuses to provide his name and address.

23The appellant submits that the Hearing Officer misapprehended the evidence, given that there were inconsistencies between the evidence of Mr. Yakabuskie and Ms. Cowan with respect to a number of facts: whether the window in the police cruiser was open or closed, the amount of alcohol consumption by Mr. Yakabuskie and the timing of the consumption, the distance from the cruiser where the alleged assault occurred, the details of the assault, the timing of the pictures of the injuries, the issue of threatened use of pepper spray, Ms. Cowan’s evidence regarding witnesses at the scene, the clothing worn by the appellant, the issue of blood on Mr. Yakabuskie’s face, and the issue of the criminal records of Mr. Yakabuskie and Ms. Cowan.

24The Commission concluded that these inconsistencies were not material - in their words, “peripheral” - to the central issue whether the appellant had reasonable cause to make the arrest and whether he used unnecessary force. In coming to this conclusion, the Commission properly considered the whole record, including the appellant’s testimony, as well as the evidence given by Mr. Yakabuskie and Ms. Cowan. They reasonably concluded that these inconsistencies were not material to a determination of whether the appellant committed the offence with which he was charged.

25There is no dispute that there was an altercation between the appellant and Mr. Yakabuskie that evening. It is also apparent from the record that Mr. Yakabuskie was harmed to some extent in that altercation. The appellant gave evidence that he saw blood on Ms. Cowan’s hand after his struggle with Mr. Yakabuskie, but he did not know its source. However, the prisoner’s log which he filled out makes mention of blood on Mr. Yakabuskie’s lip and nose. Constable Beaudry, who was in the station when the appellant brought Mr. Yakabuskie in, saw a trace of blood on Mr. Yakabuskie’s chin just under his lip. There is also evidence that Mr. Yakabuskie went to the hospital the day following, and there are pictures of injuries.

26Most important, there is no dispute that the appellant stopped his car and demanded identification from Mr. Yakabuskie, and that Mr. Yakabuskie, at the time of the demand, was not required to respond. The appellant conceded that in cross-examination. The appellant also got out of his car and asked for identification. Again, at that moment, Mr. Yakabuskie had no obligation to respond.

27While the appellant arrested Mr. Yakabuskie for public intoxication, his notes from the evening of the arrest did not mention any difficulty Mr. Yakabuskie had in walking, and the appellant conceded in cross-examination that Mr. Yakabuskie did not seem mentally confused. His grounds for arrest were the smell of alcohol, the bloodshot eyes, slurred speech, and aggressive attitude. The Commission observed in its reasons that Mr. Yakabuskie did not exhibit the classic symptoms of intoxication: “[h]is clothing was not in disarray, he understood the questions being asked, he was not unsteady on his feet or falling down, urinating on the street or vomiting”. Mr. Yakabuskie and Ms. Cowan testified that he had consumed one beer. Mr. Yakabuskie told the appellant that when asked if he had been drinking, and he asked for a breathalyzer.

28While the appellant testified he was of the opinion that Mr. Yakabuskie was a danger to himself or others, he made no effort to determine where Mr. Yakabuskie lived or how far he was from his home. The appellant could point to nothing that suggested any danger from Mr. Yakabuskie prior to the appellant stopping his car and asking for identification. His notes from that evening indicate that he “told Jerry if he didn’t cooperate then he would be arrested”.

29Constable Beaudry testified that there was an odour of alcohol and that Mr. Yakabuskie was rude, but compliant. He believed that Mr. Yakabuskie understood instructions.

30The Commission concluded that given the evidence, including that of the appellant and Mr. Yakabuskie and Ms. Cowan, it was open to the Hearing Officer to conclude that the arrest was neither lawful nor necessary. Moreover, if the arrest was unlawful or unnecessary, any use of force that flowed from the arrest was unlawful. On the record before it, this was a reasonable conclusion for the Commission to reach.

31In oral argument before this Court, the appellant’s counsel made reference to R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, in which the Supreme Court of Canada discussed the duty to give reasons in the context of a criminal case. He submitted that the Hearing Officer failed to give adequate reasons for his finding with respect to the credibility of Mr. Yakabuskie and Ms. Cowan and failed to explain why he disbelieved the appellant.

32The Supreme Court discussed the issue of the adequacy of reasons more recently in R. v. Dinardo, 2008 SCC 24, [2008] S.C.J. No. 24. The Court reiterated the functional test for determining the sufficiency of reasons, noting that “[a]n appeal based on insufficient reasons will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review” (at para. 25).

33The Supreme Court observed that a trial judge’s findings of credibility will rarely be overturned because of deficiencies in the credibility analysis, although reasons are particularly important where there is confused and contradictory evidence on a key issue (at paras. 26-27). However, the Court noted that “[i]f the trial judge’s reasons are deficient, the reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record.”

34The Supreme Court of Canada has emphasized these principles once again in Her Majesty the Queen v. R.E.M., 2008 SCC 51 at para. 35. In that case, McLachlin C.J.C., spoke of the role of an appellate court reviewing the sufficiency of reasons in a criminal case (at para. 55):

The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial.

35In this case, the Commission examined all the evidence, as well as the reasons of the Hearing Officer, as the members were quite aware of the deficiencies in the Hearing Officer’s reasons. Having examined the record, they reasonably concluded that the Hearing Officer’s finding of misconduct should be upheld, given his conclusion about the credibility of the testimony of Mr. Yakabuskie and Ms. Cowan and given the other evidence in the record.

36Therefore, the appeal is dismissed. If the parties cannot agree on costs, they may make brief written submissions through the Divisional Court Office within 30 days of the release of this decision.

Swinton J.

Carnwath J.

Karakatsanis J.