DIVISIONAL COURT FILE NO.: 125/09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, HILL and LAX JJ.
B E T W E E N:
STAFF SERGEANT JOHN McCORMICK
Appellant
Peter M. Brauti, for the Appellant
- and -
GREATER SUDBURY POLICE SERVICE
Respondent
Réjean Parisé, for the Respondent
HEARD AT TORONTO: November 9, 2009
REASONS FOR JUDGMENT
TABLE OF CONTENTS
Para. No.
HILL J. (LAX J. concurring). 1-178
A. INTRODUCTION......................................................................................................... 1
B. GROUNDS OF APPEAL............................................................................................ 6
C. THE INVESTIGATORY PROCESS.......................................................................... 8
D. FACTUAL OVERVIEW
(1) The Uncontested Evidence................................................................................. 13
(2) The Injury Causation........................................................................................... 22
(3) The “Slap” Transaction........................................................................................ 46
(4) Note-Taking Compliance.................................................................................... 51
E. ANALYSIS
(1) Disclosure/Re-examination
The Context 56
Governing Principles. 69
Application of Principles. 75
(2) The Commission’s Standard of Review
The Context 81
Governing Principles. 84
Application of Principles. 89
(3) The Applicability of the W.(D.) Guideline
The Context 90
Governing Principles. 94
Application of Principles. 106
(4) Sufficiency of Reasons/Misapprehension and Failure to Consider Evidence
Governing Principles. 109
(a) Alcohol, Drugs and Giroux’s Reliability
The Context 120
Additional Principles. 127
Application of Principles. 131
(b) Additional Errors in Assessing Giroux’s Evidence
The Context 134
Application of Principles. 140
(c) Const. Hart’s Credibility
The Context 141
Application of Principles. 147
(d) The ‘Slap’ Transaction
The Context 152
Application of Principles. 156
(e) Rejection of the Appellant’s Evidence
The Context 158
Additional Principles. 163
Application of Principles. 167
(5) Unreasonable Verdict
The Context 171
Application of Principles. 173
F. CONCLUSION......................................................................................................... 176
J. WILSON J. (concurring with the result, in partial dissent).....................................179
HILL J. (LAX J. concurring)
A. INTRODUCTION
1Staff Sergeant McCormick of the Greater Sudbury Police Service (the Service) appeals the decision of the Ontario Civilian Commission on Police Services (the Commission), dated February 20, 2009, (OCCPS #09-02) which dismissed the appellant’s appeal from the liability and penalty decisions of a Hearing Officer under s. 64 of the Police Services Act, R.S.O. 1990, c. P.15 (the P.S.A.).
2The Hearing Officer, retired OPP Superintendent R.J. Fitches, in reasons dated January 11, 2008, concluded that the appellant was guilty as charged of both unlawful or unnecessary exercise of authority, and, neglect of duty, as alleged in these counts:
1You are…alleged to have committed an unlawful or unnecessary exercise of authority in that you used unnecessary force against a prisoner or other person contacted in the execution of your duty: contrary to section 2. (1)(g)(ii) of the Schedule Code of Conduct of Regulation 123 of the Revised Regulations of Ontario 1998 as amended and therefore, contrary to Section 74. (1)(a) of the Police Services Act 1997, as amended.
2You are…alleged to have committed neglect of duty in that you failed to work in accordance with orders, or leaves an area, detachment, detail or other place of duty, without due permission or sufficient cause contrary to section 2. (1)(c)(ii) of the Schedule Code of Conduct of Regulation 123 of the Revised Regulations of Ontario 1998 as amended and therefore, contrary to Section 74. (1)(a) of the Police Services Act 1997, as amended.
3The broad factual context for the allegations relate to the January 14, 2001 arrest of Richard Giroux in Sudbury, Ontario.
4Two material particulars were provided for each charge:
Unlawful or Unnecessary Exercise of Authority
1“That Cst Hart had Richard Giroux on the ground and in custody and you intentionally kicked Richard Giroux in the head causing injury.
2That you intentionally slapped Richard Giroux while he was at the back of the cruiser, under arrest and compliant.”
Neglect of Duty
1“That you were aware Mr. Giroux suffered injuries as a result of you kicking him in the head. That you failed to submit a use of force report which is contrary to service policy ADM 012 section 3(b)(i) which states; A member shall submit a use of force report, where the member, who during the performance of their duties: is required to use physical force which results in an injury.
2That you failed to note in your duty book the pertinent information as to your participation in this incident relating to the criminal offenses committed by Richard Giroux contrary to service policy ADM 013 section 6(h) which states: All information pertaining to offences, investigations and incidents shall be recorded.”
5In a decision dated May 16, 2008, the Hearing Officer imposed a penalty upon the appellant of demotion to first class constable for a period of one year. While observing that, “[t]he Neglect of Duty pales in comparison to the Unlawful or Unnecessary Use of Force”, the Hearing Officer elected to impose the demotion disposition stating that it “applies to both counts”.
B. GROUNDS OF APPEAL
6Pursuant to s. 71(2) of the P.S.A., Sgt. McCormick is entitled to appeal a finding of misconduct to this Court on any question not involving a question of fact alone. Apart from error involving a pure question of law, this Court can interfere with a conclusion of the Commission only if its decision was unreasonable: Ontario (Provincial Police) v. Favretto (2004), 2004 34173 (ON CA), 72 O.R. (3d) 681 (C.A.) at para. 50 (leave to appeal refused [2004] S.C.C.A. No. 562); Wilson v. Ontario (Provincial Police Service) (2008), 2008 52621 (ON SCDC), 242 O.A.C. 82 (Div. Ct.) at para. 19; Blakely v. Quinte West Police Service (2007), 2007 33123 (ON SCDC), 228 O.A.C. 149 (Div. Ct.) at para. 15.
7On behalf of the appellant, Mr. Brauti advanced these grounds of appeal:
(1) Both the Commission and the Hearing Officer erred in holding that the defence re-examination of Richard Giroux was not unfairly limited in circumstances of denial of an opportunity to show the witness, who was victim of the alleged assaultive conduct, a photograph of Const. Chris Hart. More specifically, a denial of natural justice is submitted to involve:
(a) failure of the prosecution to disclose Hart’s photo
(b) the Hearing Officer’s erroneous ruling that the photo need not be disclosed
(c) a denial of full answer and defence, in a proceeding where identity was in issue, through a prohibition against showing Giroux a photo of Const. Hart who the defence alleged was the assailant, with the Hearing Officer’s decision founded on legally irrelevant considerations:
(i) an application of photo identification caselaw pertaining to investigatory and prosecution processes
(ii) a negative pre-judgment of the credibility of the witness Giroux.
(2) The Commission erred in law in considering the appellant’s arguments as to substantive unreasonableness, insufficiency of reasons, and misapprehension/failure to consider evidence against a review standard as to whether the Hearing Officer’s conclusions were “void of evidentiary foundation”.
(3) The Commission and the Hearing Officer erred in law respecting the burden of proof in failing to recognize the application of the dicta in Regina v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) relating to credibility assessment by a trier of fact.
(4) The Hearing Officer’s reasons for judgment are insufficient, include misapprehension of evidence, and suffer from a failure to consider material evidence. More specifically:
(a) In diminishing the credibility and reliability of Mr. Giroux as a witness, the Hearing Officer misapprehended the evidence relating to whether, on January 14, 2001, Giroux had consumed alcohol and drugs, and further erred by improperly taking judicial notice of the effects of a combination of these substances upon the victim.
(b) The Hearing Officer unfairly rejected Mr. Giroux’s testimony because the witness described the supervisor’s SUV as a “little van”, because he considered it inconceivable that a victim attempting to protect his face from a beating would observe the amount of detail described by Giroux, and on account of finding that the witness’ report of the events of January 14, 2001 was an admixture of facts drawn from his two separate arrests in 2001.
(c) Significant evidence relating to a determination of Const. Hart’s credibility and to the key issue as to whether Hart was the assailant was entirely ignored or misconstrued.
(d) Significant evidence relating to Const. Train and the alleged ‘slap’ transaction was ignored.
(e) Effectively no reasons, and certainly inadequate reasons, were given for rejecting the appellant’s testimony.
(5) The findings of guilt were unreasonable and unsupported on the evidence – no trier of fact properly instructed, acting judicially and reasonably, could be satisfied that clear and convincing evidence supported the conclusions of liability.
C. THE INVESTIGATORY PROCESS
8The P.S.A. contraventions involving the appellant relate to January 14, 2001.
9Not until 2005, was an investigation launched into the circumstances of Mr. Giroux’s arrest.
10The North Bay Police Service undertook a criminal investigation. Mr. Giroux, the appellant and other relevant Sudbury officers were interviewed. In the end, apparently based on a conclusion that no reasonable prospect of conviction for assault existed, no criminal charge was laid against the appellant.
11In a somewhat parallel process, the Metropolitan Toronto Police Service took the lead on the professional standards investigation which ultimately led to P.S.A. charges in 2006.
12Witnesses at the hearing testified to their recall of events over 6 ½ years earlier.
D. FACTUAL OVERVIEW
(1) The Uncontested Evidence
13In January 2001, Richard Giroux was 36 years of age. He was 5’7-8” in height and weighed about 135 pounds. He had an extensive prior criminal record commencing when he was a teenager. His longest term of incarceration was six months.
14On January 14, 2001, shortly after 10:00 a.m., while on patrol in Sudbury, Const. Ealdama learned that a female, on foot, was pursuing a male party regarding a theft. This officer and others on patrol were soon informed that the woman was Lisa Lalande and that she was alleging her on-and-off again boyfriend, Richard Giroux, had stolen a knapsack from her residence. She would later inform the police that Giroux was uninjured when he fled from her home.
15A police dispatcher notified officers in the area that there was an outstanding arrest warrant for Giroux for common assault relating to domestic violence.
16A number of general patrol officers began a grid search for the suspect including Const. Ealdama, probationary Const. McNamara paired with auxiliary Const Train, Const. Hart, and the uniformed road supervisor, Sgt. McCormick. Three marked cruisers were engaged in the search in addition to the supervisor’s Ford Expedition SUV.
17Within minutes, Const. Ealdama spotted Giroux at the intersection of Kathleen St. and College St. in Sudbury. The officer confronted the suspect ordering him to stop. Giroux bolted running between buildings and through backyards.
18At one point, Const. McNamara drove his cruiser north in an unmarked laneway off College St. with the suspect just ahead. When Giroux then cut through a backyard, Const. Train exited the cruiser to pursue the suspect on foot. Const. McNamara, who knew something of Giroux’s background, including a history of resisting, running and fighting to the end, was not surprised that the suspect was evading capture. As Giroux ignored Const. Train’s commands to stop, the officer fell in the deep snow between two houses and lost sight of Giroux.
19The appellant, who was the only supervisor involved in the effort to capture Giroux, radioed that he observed the suspect ditch his jacket and proceed westbound.
20Const. Hart discovered Giroux on Eva Ave. He apprehended him and handcuffed the suspect’s hands behind his back. Seventy-six seconds after his prior broadcast, the appellant radioed, “One in custody”. Consts. McNamara, Train and Hart testified that the appellant was the second officer, after Hart, to arrive on Eva Ave. at the scene of the arrest. At trial, the appellant did not seriously dispute this chronology.
21Before Richard Giroux was placed in Const. Hart’s cruiser, he had visible injury to the bridge of his nose which was also bleeding.
(2) The Injury Causation
22In his testimony, Const. Hart maintained that when he came upon Giroux on Eva Ave. the suspect was out of breath and compliant with directions to drop to his knees and to go prone on the ground where he was handcuffed and arrested without incident. Const. Hart agreed that he was the only officer with Giroux during these initial events. He was wearing black Kevlar gloves. Asked if the suspect’s face was against the ground, Const. Hart testified, “I don’t remember exactly how his face was at that time”. The witness agreed that he may have had a knee on Giroux’s back during the handcuffing. Const. Hart denied the use of any force against Giroux. He at no time pushed the prisoner’s face into the pavement.
23Hart’s notes state in part:
I ordered him to the ground while approaching him + he complied dropping to his knees on the pavement Eva St…
The alteration of the notebook entry was not initialled as required by the Service’s policy, ADM 013 Officer Note Taking, s. 6(c). The witness was cross-examined as to the change:
Q. Why would you scratch pavement out?
A. I don’t know. Because maybe there was snow on the ground. I have no idea.
Q. Why would you take the time to scratch out the word pavement?
A. I have no idea.
Q. You realize Mr. Giroux’ allegation is somebody pushed his face in the pavement; right?
A. Well, I’m telling you that didn’t happen.
Q. But did you know that that’s his allegation?
A. No. I didn’t know that was his allegation. But I’m telling you that didn’t happen.
Q. And, I guess, it’s just coincidental that you scratched the word pavement out of your notebook?
A. Yeah, apparently.
24At the November 2007 hearing, Const. Hart’s head was shaved. He agreed that in January 2001 he had dark hair without any gray unlike the appellant. He was younger than McCormick. The witness further agreed that he was smaller in stature than the appellant.
25When interviewed by the North Bay Police Service in 2005, and again in his testimony at the 2007 proceeding before the Hearing Officer, Const. Hart stated that as Richard Giroux lay prone on the pavement, the appellant walked over and deliberately kicked the prisoner one time in the face for no reason causing injury to his nose. Const. Hart was unable to tell the Hearing Officer whether the appellant kicked with his left or right leg or what part of the foot made contact with the prisoner.
26Const. Hart testified that he understood an unjustified kick to a prisoner violated the Police Services Act and the Criminal Code. He took no action and made no notes of the kicking incident he maintained he observed. The constable agreed this amounted to neglect of duty. He decided not to complain about the sergeant on his platoon. Const. Hart agreed that during his second interview, Professional Standards investigators suggested he had assaulted Giroux. As of the time of the hearing, he was unsure what P.S.A. charges he might yet be facing.
27Const. Ealdama, serving abroad on a peace-keeping mission, did not testify at the hearing. Documentation authored by the officer was introduced into evidence.
28In his January 14, 2001 Witness Statement, Const. Ealdama wrote in part:
As a result he [Giroux] was placed under arrest by Cst. Hart, viewed by Cst. Ealdama and placed in handcuffs to the rear.
29In December 19, 2005 correspondence to a sergeant in the Service’s Professional Standards office, Const. Ealdama stated:
The writer had no involvement with the arrest of the accused party and only recalls driving past both the accused and the arresting officer (P/C Hart). At that time, the accused was standing outside of a marked cruiser with his hands handcuffed behind his back. The writer does not recall seeing any other police personnel in the vicinity at the time.
30At the hearing, Const. McNamara described himself as a friend of Const. Hart. On at least a couple of occasions, they had discussed the events of January 14, 2001. He agreed that doing so was inappropriate and suggestive of a “set-up”.
31Const. McNamara testified that he was younger than the appellant and smaller in stature. To the constable’s recall, the appellant was the only officer with gray in his hair at the scene of Giroux’s January 2001 arrest.
32According to Const. McNamara, when he pulled onto Eva Ave., he observed Const. Hart escorting a handcuffed Giroux to his cruiser. He at no time saw the handcuffs removed from the prisoner. Initially under cross-examination, Const. McNamara provided this testimony:
Q. And Staff Sergeant McCormick was not present at that time?
A. I think he pulled up shortly after. I don’t think – yeah.
33The witness subsequently changed his position to variously say that the appellant was already on scene as he arrived, and, that he was unsure where the appellant was.
34In his testimony, Const. Train agreed that both he and Const. McNamara appeared considerably younger than the appellant. The officer described McNamara’s hair as predominantly red.
35To Const. Train’s recall, on January 14, 2001, the streets were clear and not snow-covered. When the constable arrived on Eva Ave. the prisoner was already in custody.
36The appellant testified that he had no discipline entries in his policing record. Over the years, on any occasion where he had employed force against a member of the public, he noted the incident and submitted a use of force report as required.
37The appellant, who had no notes of his involvement in the pursuit of Richard Giroux on January 14, 2001, and whose memory was piecemeal refreshed over the years by reference to available extrinsic sources of information during the various investigations, informed the Hearing Officer that he had little memory of the Giroux apprehension because he was only peripherally involved and that nothing noteworthy transpired. Prior to January 14, 2001, the appellant had had no prior dealings with Richard Giroux.
38The appellant informed the Hearing Officer that he was the oldest officer of those engaged in pursuit of Giroux and the only one with gray in his hair. He was not wearing black gloves.
39The appellant agreed that police radio transmissions records placed him in the general area of Giroux’s arrest before it occurred. Although the witness professed no exact recall, he believes it was possible that he drove a route to block the suspect from reaching the Eva Ave. bridge as opposed to executing a straight drive to where Const. Hart arrested Giroux.
40To the appellant’s recall, he did not see Giroux on the ground under Const. Hart’s control. He had a vague memory of two officers on Eva Ave. leading the prisoner to a cruiser.
41The appellant testified to a lack of recall of blood on Giroux’s face or of seeing any injury. He did not dispute that injury may in fact have existed and been visible. If Giroux was injured during the arrest, Const. Hart would submit a use of force report. The staff sergeant at the police station would ensure that photos of the prisoner were taken. The appellant concluded that Const. Hart had lied to investigators and to the Hearing Officer in order to cover up his own misconduct. The appellant denied any physical contact with Giroux. He therefore had no need to submit a use of force report. He at no time delivered a kick to the prisoner. In his entire career, he had never kicked anyone in the face.
42Without objection, the appellant was asked in-chief at the hearing whether the injuries portrayed in the January 15, 2001 photos of Giroux matched Const. Hart’s explanation for the prisoner’s injuries. Noting two or three horizontal abrasions to Giroux’s nose, the witness opined that the injuries were more consistent with a suspect’s face pushed, rubbed or dragged on pavement as opposed to a kick to the face. The appellant testified that there was no characteristic of his footwear that would leave the profile of marks depicted on Giroux’s nose.
43Richard Giroux provided two statements to the North Bay Police Service. He was never asked to participate in a photo lineup of the Sudbury police officers involved in his January 2001 arrest.
44Mr. Giroux testified that he was not kicked in the face at the time of his January 14, 2001 arrest.
45In summary, the witness provided this evidence as to the circumstances of his apprehension and the identity of the individual who injured his nose:
(1) A police officer first approached him at Kathleen and College Sts. telling him to stay where he was. In Giroux’s words, “I didn’t take his picture”. He immediately ran.
(2) He believed that this police officer may be the one who ultimately arrested him but he was not totally sure: “I’m not stopping to take a picture of anybody or…I’m trying to get away”.
(3) In an encounter with the police, he always resists and tries to get away by running.
(4) The police officer who caught up to him on Eva Ave. took him to the ground and “attacked” him. As he lay on the ground, he took a couple of punches to the head. The officer told him to stop resisting:
…[he] tried to put me – my face through the pavement, smashing my face on the pavement.
He kept trying to put my face through the pavement and knocking my face into it and nose into the pavement.
…he kept trying to put my head through the pavement…
Lift my head up, bang. Put my face on the pavement [witness motioning downward with a hand on the back of his head].
I’m arrested. You got me. You got me. I kept saying…You don’t have to keep going.
(5) It is a hundred percent certain that the appellant is not the officer who assaulted him.
(6) It was a young officer wearing black gloves who assaulted him. He had black hair and a “pretty aggressive character”.
(7) His assailant kept a knee on his neck as he was handcuffed. The officer’s knee was also on his back at a point.
(8) In addition to the injuries to his nose, he suffered tooth, mouth and rib injuries. He had no hospital attention for any of these injuries.
(9) The beating stopped as soon as a little blue and white marked police van with ‘Supervisor’ on it arrived on scene. This supervisor had gray in his hair and seemed a little heavy. When he exited his vehicle, the supervisor, who was calm and cool, said words to the following effect, “Is everything okay here. You got him?“ The supervisor looked older than any of the other officers he observed the day of his arrest. He could have been as old as 50 years of age.
(10) His nose was bleeding. The officer who pulled him up from the ground, searched him and placed him in a cruiser, was the individual who assaulted him.
(3) The “Slap” Transaction
46On behalf of the prosecution, Const. Train described a slap administered to Richard Giroux by the appellant. The officer testified that he may have been as much as thirty-five feet away at the time. The witness’ evidence included the following:
(1) The appellant and Const. Hart were standing “right beside” Giroux near the back door of Hart’s cruiser. Giroux was between the two officers.
(2) Giroux’s hands were out of sight behind his back.
(3) Richard Giroux appeared to be uncooperative, “struggling a bit”, and trying to pull away from the officers.
(4) As the three stood together, shoulder to shoulder, the appellant delivered an open hand strike to Giroux’s front facial area.
(5) The constable didn’t think much of the matter at the time. He did not conclude that it amounted to excessive force. He agreed, under cross-examination, that a struggling prisoner is considered “active resistant” permitting employ of an open-hand technique to assert control.
(6) The witness did not have “a very good recollection of how this strike actually occurred”. He had no idea whether there was forehand or backhand contact or whether it was with the left or right hand. Under cross-examination, the constable finally acknowledged that his recollection of his observations “might be off” or “wrong”.
47Const. Hart’s notes described Richard Giroux as “cooperatively handcuffed”. In his testimony, the officer described the prisoner as “very compliant”. At the hearing, the prosecutor did not ask Const. Hart whether he observed the appellant strike Giroux in the face. In cross-examination, Const. Hart agreed that the prisoner was in his custody at all times from the point of handcuffing through to transport to the police station. Under cross-examination by the defence, the witness agreed that at no time did he observe or hear the appellant slap Giroux.
48Const. McNamara testified that he observed Const. Hart on his own walk the prisoner to his cruiser. The appellant thereafter walked over to where they were located. The constable did not see the appellant slap Giroux.
49Richard Giroux, the alleged “victim”, informed the Hearing Officer that he was at no point slapped in the face when he was standing up at the scene of his arrest.
50In his defence, the appellant testified that he never slapped Richard Giroux.
(4) Note-Taking Compliance
51The Service’s policy, ADM 013 ‘Officer Note Taking’, states in part:
- OFFICERS RESPONSIBILITIES
(a) Note taking practices shall be in accordance with procedures taught at the Ontario Police College.
- GUIDELINES ON MAKING NOTES
(f) Information pertaining to incidents of interest, suspects, missing or wanted persons and any other important particulars obtained during line-ups shall be recorded.
(g) Details of each tour of duty including date, assignment, vehicle, portable radio, name of supervisor, visits by supervisor, road and weather conditions, lunch period and start and finish time of duty shall be recorded.
(h) All information pertaining to offences, investigations and incidents shall be recorded. A notebook should answer the questions of WHO, WHAT, WHERE, WHEN, HOW and sometimes WHY.
52The appellant’s notebook entries for January 14, 2001 consist of six lines of text without any reference to the Giroux investigation.
53During his in-chief testimony, the appellant stated that as a supervisor there typically is no tendency to become involved in investigations or to deal with arrested persons. It was unnecessary, in his view, to make a note regarding speaking to patrol constables providing “[n]othing untoward” had occurred.
54Under further examination, the appellant acknowledged that on January 14, 2001 he was responsible for the oversight of uniformed police personnel on the road during his shift. The appellant admitted to being the supervisory officer at the scene of the Giroux arrest.
55Under further examination, the appellant provided this evidence:
A. …I should have had the incident number there or something that said I arrived on scene.
Q. Which isn’t there.
A. Right.
Q. And, secondly, that where it has unit unknown, attributing the words he just ditched his jacket, he’s coming westbound, that’s you?
A. Yes, it is.
Q. All right. So it would seem on the face of this that you’re involved in the containment process?
A. Well, I’m involved in looking for him.
Q. And when one looks at your notebook, especially in the context of having reviewed the transcripts and listened to your involvement in the apprehension of Richard Giroux, is it fair to say that these notes are inadequate and not in accordance with the guidelines?
A. Well, if I could do it all over again, there would be a lot more notes.
Q. Okay.
A. So, yes, to your question.
Q. Okay. I[n] terms of your notes of January 14, 2001 they – relative to this incident involving Mr. Giroux, they don’t even come close to answering the questions of who, what, where, when, how and sometimes why?
A. No, they don’t.
Q. …I think, you can now say that you were involved in this incident; fair to say?
A. In some respect, yes.
Q. You’re the – you’re the you’re the sergeant on the scene?
A. Mm-hmm.
Q. Right? You’re the person who is involved; albeit, you would say not as much, but you’re involved in the whole process of the apprehension of Mr. Giroux?
A. That’s correct.
E. ANALYSIS
(1) Disclosure/Re-examination
The Context
56Before the hearing, the appellant was provided significant disclosure including materials from the North Bay and Professional Standards investigative files.
57Sometime prior to the hearing, Richard Giroux’s name was on the prosecution witness list provided to the defence. Only days prior to the hearing, Mr. Parisé informed Mr. Brauti that the Service no longer intended to call the victim as a witness. The defence filed an abuse of process motion.
58Immediately prior to the hearing, with the assistance of the prosecution, it was learned that Giroux was in custody in Sudbury. Mr. Brauti withdrew the abuse of process motion and took steps to obtain a judge’s order to compel the witness’ attendance to testify.
59Mr. Brauti first met Richard Giroux on November 22, 2007, in an ante-room at the Service’s headquarters proximate to the boardroom where the disciplinary hearing was being conducted. The witness then gave his evidence, as a defence witness, before the Hearing Officer.
60During his in-chief testimony, Mr. Giroux provided this evidence:
Q. Let me ask you, during this investigation, did anybody show you pictures of a Constable Hart?
A. No.
Q. Did anybody show you pictures of a young police officer with dark hair?
A. No.
Q. And, I take it, if you were shown a picture today, in 2007, do you think you’d be able to identify the person?
A. I’m not sure. I probably could. I’d probably be pretty close. Like, I’d – I’d have to see the picture, but –
Q. All right.
A. I’m not sure.
A. Yeah. There’s no reason for me to lie. Like, I have no reason to lie. I’m just telling you what happened that day, that’s all. If I could remember the face totally? I don’t know if I could. But I do remember what he – I kind of got a good picture of what he looks like that guy.
61In response to further inquiry from Mr. Brauti, the witness testified that there was no confusion in his mind between his January 14, 2001 arrest and an arrest that occurred in November of the same year. Mr. Giroux stated that the latter arrest was at night in the Flour Mill area of the city and that no drugs were seized from him in that occurrence.
62Mr. Parisé extensively cross-examined the witness, often referring to prior interview statements, in an effort to establish that he was indeed confusing the circumstances of the two arrests. In both instances, Giroux was pursued on foot by the police. On his evidence, he was assaulted by police each time he was caught. Giroux continued to provide distinguishing details relating to the January arrest including his argument with Lalande, the dispute about the duffle bag, the time of the day, the smashing of his head into the pavement on Eva Ave., and the presence of a supervisor. The prosecution made some headway regarding inconsistencies between out-of-hearing statements and the witness’ sworn evidence, and regarding such topics as to whether he was out of breath at the time of capture, the extent of the injuries on each occasion, and the duration of the witness’ stay in jail after each arrest.
63During cross-examination, the witness made further reference to identification of his assailant by photo:
I bet you you give me a picture of the guy that did it, I’ve got a good idea of the guy –
Abdomino [Ealdama] or whatever, I’m not sure that was him, the one that attacked me, the one that jumped me, the one that tried to put my face through the pavement. My face is – is face down. I’m not looking up at him doing it. When I got up, the guy was pretty ignorant. I could remember his face. I know I would.
64Prior to re-examination, Mr. Brauti requested a brief opportunity to consult with Mr. Parisé about a “disclosure issue”. On return to the hearing room, counsel informed the Hearing Officer that the prosecution had a photo of Const. Hart, his request for the photo had been refused, and that the prosecutor’s reason for the refusal would only be given by Mr. Parisé when submissions were made.
65Before the Hearing Officer, Mr. Brauti emphasized the unique circumstance of the appellant having to produce the victim to testify. The obligation of continuing disclosure, it was said, required production of the Hart photo in order for full answer and defence on the critical issue of identity. For in-chief questioning, the defence had been content to have Giroux testify that the appellant was not his assailant and to circumstantially identify Const. Hart as that individual. Counsel submitted, however, that the prospect of misidentification on account of alleged confusion between the appearance of Const. Ealdama and Const. Hart, or between the arresting officers at the respective arrests, themes dominating the cross-examination, required an opportunity for the victim to identify Const. Hart directly – “I propose to show him a picture”. The use of a single photo would, it was acknowledged, affect the weight of any identification.
66Mr. Parisé resisted the defence approach submitting that disclosure of the photo could have been made “a long time ago” and that the showing of a photo in re-examination was inappropriate considering that the identity issue was live throughout the hearing including during Giroux’s in-chief testimony. The prosecutor noted that the process of identification employing Const. Hart’s photo “could have been something that was dealt with in terms of multiple photos of different officers”. Further, it was said to be “too late” and unfair to now attempt identification using a single photo of Const. Hart after the witness had declined to identify the appellant in a one-person show-up identification process.
67The Hearing Officer refused the defence request to allow the victim to be shown a photo of Const. Hart in re-examination:
I have serious concerns about it, showing this witness a picture of anybody, whether it’s Constable Hart or anybody else. And you might be right about the three aspects of disclosure, that may be absolutely accurate. I have some conditions around evidence and I have to have some belief that it’s reliable. I have doubts about the reliability of identification issues as a result of looking at many court decisions that have had that as a problem.
When we couple those observations with observations I’ve made this morning, my concern about it is tripled. So I’m not in the least prepared to go through – to me it would be an exercise in futility no matter what the witness says.
68On review, the Commission affirmed the Hearing Officer’s decision:
The issue raised by the Appellant regarding the production and introduction of the photograph of Constable Hart has two aspects to it. Did the Prosecution have an obligation to provide the Defence with the photograph, and secondly, was the Hearing Officer’s ruling to prohibit the production of a picture of anyone to RG reasonable?
The Hearing Officer considered the evidence and concluded that RG was not credible.
[RG] presented himself as someone who had a fair number of facts at his disposal, but someone who was unable to clearly define which facts went with a variety of similar incidents.
This is the Hearing Officer’s finding, after hearing all of the witnesses’ testimony over a number of days. His speculation as to the “number of possibilities for this” does not detract from his finding that RG’s testimony is confused.
RG’s testimony is riddled with inconsistencies. The Hearing Officer’s finding is not void of an evidentiary foundation.
Given the above, the Hearing Officer was quite clear that he was very concerned about the usefulness of presenting photographs to RG following comments made in cross-examination that he might be able to identify the officer who assaulted him:
I have serious concerns about it, showing this witness a picture of anybody, whether it’s Constable Hart or anybody else…I have some conditions around evidence and I have to have some belief that it’s reliable… When we couple those observations with observations I’ve made this morning, my concern about it is tripled. So I’m not in the least prepared to go through – to me it would be an exercise in futility no matter what the witness says.
Based upon the Hearing Officer’s view of the lack of credibility of the witness, this is a reasonable ruling. As well, there is certainly nothing to suggest that this somehow represents a failure on the part of the Prosecution to meet an ongoing disclosure obligation. (footnotes omitted)
Governing Principles
69In the circumstances of the present case, the ruling preventing the appellant’s counsel from showing Mr. Giroux a photo of Const. Hart raised four issues:
(1) the prosecution’s compliance with its disclosure obligations;
(2) the proper scope of re-examination;
(3) the admissibility of single photo identification;
(4) reasonable apprehension of bias.
70Although the precise Stinchcombe disclosure principles developed in the criminal context do not apply in the administrative law context, the disclosure obligations within the particular administrative setting will be determined in the context of the applicable statutory scheme: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 at para. 91-2. With respect to disclosure, a higher standard of procedure for professional discipline bodies has been recognized: Sheriff v. Canada (Attorney General), 2006 FCA 139, [2006] F.C.J. No. 580 (C.A.) at para. 29, 31; Home v. Institute of Chartered Accountants of Ontario (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483 (C.A.) at 495-7 per Laskin J.A. in dissent.
71The right to re-examine a witness exists where there has been cross-examination and is confined to explanation of matters arising in that examination: R. v. Moore (1984), 1984 3542 (ON CA), 15 C.C.C. (3d) 541 (Ont. C.A.) at 568-9 (leave to appeal refused [1985] 1 S.C.R. x). Counsel are expected to elicit anything of relevance from his or her witness during examination in-chief rather than a piecemeal presentation of evidence in direct and re-examination which effectively amounts to case-splitting and tends to unfairly impair the impact of cross-examination. A decision-maker ordinarily retains a discretion, in order to see that justice is done, to permit broader re-examination where a right of further cross-examination is granted.
72The presentation of a single photograph or pointing to a person seated in the gallery of a public courtroom would significantly depart from the standard of any ideal identification procedure. As a general rule, however, deficiencies in identification processes are a matter of weight for the trier of fact: R. v. Young, 2009 ONCA 891 at para. 7, 12.
73It is unreasonable for a Hearing Officer to act unfairly or with partiality: Toronto (City) Police Service v. Kelly (2006), 2006 14403 (ON SCDC), 209 O.A.C. 269 (Div. Ct.) at para. 57. Impartiality and the appearance of impartiality are essential to procedural fairness: Ontario (Commissioner, Provincial Police) v. MacDonald, [2009] O.J. No. 970 (C.A.) at para. 18.
74In determining whether there is a reasonable apprehension of bias, the test is whether a reasonably informed person could reasonably perceive bias on the part of the decision-maker: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 84 (SCC), [1992] 1 S.C.R. 623 at para. 22. Perceived bias includes “prejudgment of credibility” of a witness: Ontario (Commissioner, Provincial Police) v. MacDonald, supra at para. 20; Sorger et al. v. Bank of Nova Scotia et al. (1998), 1998 3715 (ON CA), 39 O.R. (3d) 1 (C.A.) at 3, 5-6.
Application of Principles
75The prosecution complied with its pre-hearing and in-hearing disclosure obligations. The defence was at liberty at any time to request a photo of Const. Hart. When the request was ultimately made, Mr. Parisé was quite prepared to surrender the relevant photo should the defence receive a successful ruling respecting the propriety of its proposed re-examination questioning relating to witness-box identification of a photo of Const. Hart.
76It was open to Mr. Brauti to request a photo of Const. Hart from the prosecution during the in-chief questioning of the appellant. The defence itself, during direct examination, raised the issue of Mr. Giroux’s confidence level that he had not mixed up facts relating to the two 2001 arrests. In answer to a precise question from Mr. Brauti as to whether he could identify his assailant if shown a photo, Giroux responded that he might be able to do so. Counsel deliberately, and likely strategically, chose not to pursue witness-box identification. It was not, therefore, Mr. Parisé’s cross-examination that raised the confusion or the photo identification issues. His questioning only explored the prospect of confusion of the two arrests in greater depth and, in response, Giroux repeated that if shown a picture he might be in a position to make a positive identification. Accordingly, the Hearing Officer would have been well within his discretion to have refused the proposed re-examination involving the photo on the basis of what would have effectively amounted to a splitting of direct examination on the subject of the identification of the officer said to have assaulted the witness.
77But, having earlier in the hearing indicated his general policy of flexibility in terms of allowing both parties to ask all relevant questions without standing on the technicalities of procedure, the Hearing Officer did not prohibit further defence questioning of its own witness as improper re-examination. Again, the adjudicator could fairly and reasonably take that approach.
78The Hearing Officer denied the appellant the opportunity to re-examine Giroux using a photo of Const. Hart on two bases – the showing of a single photo to a witness as an identification process would elicit inadmissible evidence, and, having regard to the tribunal’s existing assessment of the quality of Giroux’s evidence it would make no difference even if the witness identified the officer in the photo as his assailant. On both bases, the Hearing Officer erred in law.
79Giroux was a defence witness. This was not an instance of a prosecution attempt to establish guilt where relatively strict, judicially created guidelines attach to identification procedures. The Hearing Officer, acting within his discretion to control the process, could have directed that a photo line-up be assembled and shown to the witness. Full answer and defence was at stake. In any event, the limits of a single photo showing would properly have been a factor affecting not admissibility, but rather the weight to be afforded any positive identification of Hart by the witness.
80A fair reading of the ruling of the Hearing Officer is that, before Mr. Giroux’s testimony was finished, he concluded that the witness was sufficiently unreliable that any positive identification of Hart as the assailant would be irrelevant. The Commission expressed its view that such a pre-judgment of lack of credibility of the witness was a reasonable basis upon which to exclude otherwise relevant questioning. This approach fundamentally misconstrues the requirements of procedural fairness. Giroux’s testimony was not yet complete. It was not certain that further evidence would not be called in the hearing. The parties’ closing submissions were yet to be heard and evaluated. In these circumstances, prejudgment of the quality of Giroux’s evidence, and employ of that negative prejudgment to exclude relevant evidence, even if of modest weight only, was not only a denial of procedural fairness but also would lead a reasonable person fully informed of all the circumstances to believe that the Hearing Officer had prematurely determined the value of the evidence of the independent witness who was providing evidence exculpating the appellant.
(2) The Commission’s Standard of Review
The Context
81In the course of discussing the self-restraint inherent in its limited mandate to review any factual findings of the Hearing Officer, the Commission panel referred to Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) and Wilson and Ontario Provincial Police (20 Nov. 2006, O.C.C.P.S.) (aff’d [2008] O.J. No. 4019 (Div. Ct.)) for the proposition that: “The question to be asked…is, are the conclusions of the adjudicator void of evidentiary foundation?”
82The appellant submitted that the Commission erred in the review test it applied. By limiting itself to a “void of evidentiary foundation” assessment, which is a question of whether some evidence existed to support the findings, the Commission stopped short of discharging its legal obligation to review whether the findings were also reasonable.
83In the end, Mr. Parisé accepted that the Commission had identified and applied an overly narrow vision of its factual jurisdiction.
Governing Principles
84The determination of the appropriate standard of review and its correct application by the Commission is a question of law: Toronto Police Service v. Blowes-Aybar, 2004 34451 (ON SCDC), [2004] O.J. No. 1655 (Div. Ct.) at para. 26, 28. Where the Commission applies an incorrect standard of review, the task of this court is to itself review the Hearing Officer’s decision on the standard of reasonableness: Toronto Police Service v. Kelly, supra, at para. 50.
85The limited jurisdiction of the Commission to review matters of fact alone is on the standard of reasonableness as described in the Blowes-Aybar decision, supra, at para. 31-33:
In 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).
The 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.
It 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.
86A review standard asking only whether the conclusions of the adjudicator are “void of evidentiary foundation” tends to limit the inquiry to whether there exists some evidence supporting the decision-making while falling short of the assigned jurisdiction to assess the objective reasonableness of the tribunal’s conclusions. The distinction between sufficiency of evidence and reasonableness has been directly highlighted, in a statutory context in criminal cases, as recognized in R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656 at para. 13-5:
The question therefore is whether the trial judge's verdict was unreasonable or one that cannot be supported on the evidence: s. 686(1)(a)(i).
In proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168; R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122. Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.
The Court of Appeal in this case reviewed the evidence fully, as it was entitled to do. This review, however, did not lead it to conclude that the trial judge's conclusion was unreasonable, nor that it could not be supported by the evidence. (emphasis added)
87The nature of the reasonableness review, as including assessment of not only sufficiency of evidentiary support but also whether the reasons are defensible or tenable considering logic, probabilities and improbabilities, common sense, and experience, has been described in these terms:
…the appropriate standard of review is reasonableness. Viewed as a whole, the decision of the disciplinary body is supported by tenable reasons which are grounded in the evidentiary record; therefore, it was not an unreasonable decision.
The standard of reasonableness basically involves asking "After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?"
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. (emphasis added)
(Law Society of New Brunswick v. Ryan,
2003 SCC 20, [2003] 1 S.C.R. 247 at para. 2, 47, 55-6)
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. 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. (emphasis added)
(Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47)
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.
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). (emphasis added)
(Dr. Q. v. College of Physicians and Surgeons of
British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 38-9)
88In other words, a conclusion may be supported by some evidence, and therefore not be void of evidentiary foundation, without being reasonable. This distinction is identified in various authorities:
It is possible for a judge’s decision to be unreasonable even though it is supported by the evidence to a certain extent.
(R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at para. 47
per Deschamps and Fish JJ. dissenting in the result)
In the discharge of its appeal function, the Commission viewed its statutory mandate in what appears to be excessively narrow terms given its broad review powers under the Police Services Act, stating that:
Our role or function is not merely to substitute our opinion for the decision of the Hearing Officer. In order to determine whether or not the above criteria have been satisfied in essence, we must pose the question "Are the conclusions of the Hearing Officer void of evidentiary foundation?".
(emphasis added)
(Ontario Provincial Police v. Favretto
(2004), 2004 34173 (ON CA), 72 O.R. (3d) 681 (C.A.) at para. 32
(leave to appeal refused [2004] S.C.C.A. No. 562)
Application of Principles
89The Commission’s repeated references to its satisfaction that the Hearing Officer’s factual conclusions, including credibility determinations, were not void of evidentiary foundation amounted to an overly restrictive, and therefore erroneous, exercise of the review authority conferred by s. 64(10) of the P.S.A. Because the Commission failed to consider the reasonableness of the Hearing Officer’s findings, this Court is obliged to do so within the recognized limitations of a reasonableness review.
(3) The Applicability of the W.(D.) Guideline
The Context
90Mr. Brauti identified a number of background circumstances for what he described as a misdirection on the part of the Hearing Officer in the application of the correct standard of proof to the assessment of witness credibility:
(1) The Hearing Officer commenced the 20-paragraph segment of his reasons analyzing the evidence (para. 62-81) by devoting six (6) paragraphs to negatively evaluate the reliability of a defence witness, Richard Giroux.
(2) The Hearing Officer then purported to make favourable credibility findings as to the testimony of the witnesses Hart, Train and McNamara ignoring material parts of the record relevant to a contrary view of their credibility.
(3) No consideration was given in the reasons to the important observations of Const. Ealdama.
(4) The decision included no analysis of the appellant’s evidence nor any reasoned explanation for rejection of the appellant’s evidence.
(5) Guilt was founded entirely on a simplistic bipolar basis:
For me to accept Sergeant McCormick’s version of these events, I would have to believe that Constable Hart is either lying or mistaken and that Constable Train is either lying or mistaken. I believe neither of these.
91The Commission rejected the notion that the Hearing Officer misdirected himself respecting the standard of proof:
At the Appellant’s disciplinary hearing the question of the credibility of the witnesses and the reliability of their evidence was central.
In R. v. W.(D.) supra, the Supreme Court of Canada stated that in a criminal case it was an error for a trial judge to instruct a jury that in order to render a verdict the jury had to decide whether they believed the Defence evidence or the Crown’s evidence.
The Divisional Court of Ontario commented upon the applicability of this approach to an administrative hearing.
While the reasoning in W.(D.) may be of assistance to a trier of fact faced with an assessment of credibility, the strict application of the test in W.(D.) is not required in the context of disciplinary hearings before administrative tribunals. A failure to follow the test is not fatal provided the trier of fact applies the correct burden and standard of proof. Law Society of Upper Canada v. Neinstein supra, paragraph 58.
The Hearing Officer’s decision is not void of an evidentiary foundation. He not only examined the evidence before him, he also discussed at some length his evaluation of that evidence and the testimony which he heard first-hand. There are no errors of law. The findings of guilt must stand and the appeal as to guilt is dismissed.
92With reference to the W.(D.) principles, Mr. Brauti submitted that while the Hearing Officer referred to the need for clear and convincing evidence, he failed to recognize that he could believe the prosecution evidence and disbelieve the defence evidence “and still find on the whole of the evidence that it does not meet the clear and convincing standard of proof”. In other words, the question the adjudicator should have asked is: “considering all the evidence, whether the clear and convincing standard of proof had been met”?
93The respondent submitted that the reasoning in the W.(D.) decision has no application to administrative law cases. What is required is that the decision-maker apply “the correct burden and [s]tandard of [p]roof”. Mr. Parisé noted that a clear example of the Hearing Officer’s correct appreciation of the proper standard of proof can be seen in his rejection of the prosecution’s submission that the evidence supported a cover-up by the appellant in relation to the slap to Giroux.
Governing Principles
94The governing principles as to the standard of proof and the applicability of the W.(D.) guidelines in an administrative law context are far from clear.
95The W.(D.) approach to the burden of proof originated from the dicta of Cory J. in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 at 757-8:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
96The obligations of a first instance adjudicator or tribunal in a statutory disciplinary proceeding have been described in these terms – “it had to make findings of fact, including assessments of credibility; second, it had to select the appropriate standard of proof; and, third, it had to apply the standard of proof to the facts as found to determine whether the alleged impropriety had been proven”: Dr. Q. v. College of Physicians and Surgeons of British Columbia, supra, at para. 11.
97As the P.S.A. read at the time of the hearing, the adjudicator was bound to make determinations as to whether the alleged disciplinary misconduct was “proved on clear and convincing evidence” (s. 64(10)).
98In F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, a civil action for sexual assault, in referring to the W.(D.) guidelines, the Court stated at para. 84-6:
These charges to the jury are not sacrosanct but were merely put in place as guideposts to the meaning of reasonable doubt, as recently explained by Binnie J. in R. v. J.H.S., [2008] 2 S.C.R. 152, 2008 SCC 30, at paras. 9 and 13:
Essentially, W. (D.) simply unpacks for the benefit of the lay jury what reasonable doubt means in the context of evaluating conflicting testimonial accounts. It alerts the jury to the "credibility contest" error. It teaches that trial judges are required to impress on the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt.
... In R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56, Major J. for the majority pointed out that in any case where credibility is important "[t]he question is really whether, in substance, the trial judge's instructions left the jury with the impression that it had to choose between the two versions of events" (para. 19). The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.
The W. (D.) steps were developed as an aid to the determination of reasonable doubt in the criminal law context where a jury is faced with conflicting testimonial accounts. Lack of credibility on the part of an accused is not proof of guilt beyond a reasonable doubt.
However, in civil cases in which there is conflicting testimony, the judge is deciding whether a fact occurred on a balance of probabilities. In such cases, provided the judge has not ignored evidence, finding the evidence of one party credible may well be conclusive of the result because that evidence is inconsistent with that of the other party. In such cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case. That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant as in this case. W. (D.) is not an appropriate tool for evaluating evidence on the balance of probabilities in civil cases.
99At para. 39 of the McDougall decision, Bastarache J. recognized that an existing interpretation of the “clear and convincing” language was “[a]n intermediate standard of proof between the civil standard and the criminal standard”. Although, as a matter of common law, the McDougall case rejected the clear and convincing approach as importing an intermediate standard of proof into civil litigation, in favour of clear and convincing as simply a description of the quality of evidence, it does not necessarily follow that the same approach should apply to proof of disciplinary infractions in an administrative law context where the relevant statute requires a finding of liability only on clear and convincing evidence.
100In deciding as it did, the court in McDougall, at para. 43, considered that the employ of clear and convincing as an intermediate standard of probability in some civil cases, and not in others, would present certain practical problems of application in terms of understanding the precise degree of probability contemplated by such language.
101That said, our law quite clearly recognizes a decision-maker’s capacity to apply an intermediary standard of probability. In the administrative law context, in Dr. Q. v. College of Physicians and Surgeons of British Columbia, supra, at para. 11, 17 and 19, the court reviewed proceedings where the discipline of a physician was determined on “the intermediate standard of clear and cogent evidence”. In an entirely different context, the concept of “reasonable grounds to suspect” was developed in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 45, subsequently described as an “intermediate standard” (between mere suspicion and reasonable grounds) by Binnie J. in R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 at para. 160, 163 and 191.
102The respondent relied upon Law Society of Upper Canada v. Neinstein (2007), 2007 8001 (ON SCDC), 85 O.R. (3d) 446 (Div.Ct.) (under reserve at Ont. C.A., Court File # C50293), a disciplinary context proceeding decided before the McDougall case, where the Court considered the applicability of the W.(D.) guidelines, stating at para. 47, 50-2, 54-61, 64-7:
In Re Evans, supra, a panel of the Ontario Judicial Council stated that in assessing credibility, it was "largely informed by the usual instructions given by a trial judge to a jury in a criminal trial, subject of course to the different standard of proof as discussed" (at para. 9). While there is no explicit mention of W. (D.) in Evans, it is evident that this is the authority referred to. However, it is impossible from the reasons in Evans to know in what way W. (D.) was applied in that case.
Counsel for the respondent submitted that a modified W. (D.) test applies in the assessment of credibility in a disciplinary proceeding, given Evans. Moreover, by "preferring" the complainants' evidence, the Hearing Panel improperly treated the matter as a credibility contest between the complainants and the respondent.
The Law Society submitted that it is not a requirement that W. (D.) be applied in a disciplinary proceeding when assessing credibility, and that the Hearing Panel applied the appropriate burden and standard of proof in determining whether the allegations against the respondent had been proved.
In my view, the Appeal Panel erred in law in finding that a modified W. (D.) test controls the assessment of credibility of witnesses in the administrative law context. While it purported to follow Evans, that case is of no real assistance, as it is impossible to know from a reading of the reasons if and how W. (D.) was applied in that case. Nowhere in the lengthy reasons and numerous findings of credibility of the Judicial Council is there any indication that the members are working through the three steps outlined by the Appeal Panel in this case.
The proceedings before the Hearing Panel were not criminal. The Hearing Panel was not bound to assess the guilt or innocence of the member based on the criminal standard of proof. Rather, the standard of proof before the Hearing Panel was the civil standard of a balance of probabilities. However, given the seriousness of the allegations of professional misconduct and the possible consequences for the respondent, the allegations had to be proven by clear, convincing and cogent evidence (Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 1977 1072 (ON SC), 15 O.R. (2d) 447, [1977] O.J. No. 2182 (Div. Ct.), at pp. 470-71 O.R.).
The Hearing Panel quoted from a statement by Gavin Mackenzie in Lawyers and Ethics: Professional Responsibility and Discipline (Toronto: Thomson Carswell, 2006), that the standard of proof "rises" with the gravity of the allegation and the seriousness of the consequences (para. 14 of the Panel's reasons). In fact, the standard of proof does not change -- it remains the civil standard of proof on a balance of probabilities. However, given the serious nature of the allegations of professional misconduct, the quality of the evidence required to prove the allegations increases.
As the Nova Scotia Court of Appeal stated in Dhawan v. College of Physicians and Surgeons of Nova Scotia, 1998 NSCA 83, [1998] N.S.J. No. 170, 168 N.S.R. (2d) 201 (C.A.), the gravity of the charges in the context of a professional discipline case requires clear and convincing evidence to tilt the balance of probabilities (at para. 26). In the passage from Mr. Mackenzie's commentary, it appears that this is in fact what he meant when he said the standard of proof rises, as he went on to say that the trier of fact must scrutinize the evidence with greater care when the allegations are serious.
In this case, the Hearing Panel correctly identified the standard of clear, convincing and cogent evidence. The panel members were very aware that credibility was of key importance in determining whether the allegations had been proved. Applying the appropriate standard, they held that two of the allegations of professional misconduct had been proved, and one allegation had not been proved.
The Appeal Panel took issue with the use of the word "preferred" by the Hearing Panel, saying that this showed the Hearing Panel treated the determination of credibility as a contest between the complainants and the respondent. However, the use of that word does not alone warrant appellate intervention. As the Nova Scotia Court of Appeal stated in Dhawan, supra, the important question is whether the tribunal has understood the burden and standard of proof. In that case, the tribunal had before it two contradictory versions of events, and the court observed that it would have been impossible to "prefer" one version without rejecting the other [at para. 44]:
What is most significant however is the fact that when the committee stated its preference, it was not choosing between relatively comparable or similar alternatives. The evidence of the appellant on the one hand was sharply contradictory to that of each complainant on the other. It would have been impossible to "prefer" one account without completely rejecting the other. Any kind of coexistence between the two versions or anything close to it was not an option. The preference of one version or [page462] the other in this context clearly implied the rejection of the other -- not a lesser choice.
With respect to S.G., the Panel held that she testified in a forthright and honest manner and was not disturbed in any material respect on cross-examination. The Panel believed S.G., and it did not believe the respondent's blanket denials. The Panel also held that S.G.'s evidence constituted clear, convincing and cogent proof.
In contrast, the Hearing Panel found that the third complainant was not a credible witness because of significant memory lapses and an inability to explain prior inconsistencies in her various statements and testimony. Therefore, it dismissed her allegations.
In my view, the Hearing Panel understood the burden and standard of proof. It assessed the credibility of each complainant and the respondent, and accepted the evidence of two of the complainants and rejected the evidence of the respondent. It was not required to apply W. (D.) in its deliberations. Therefore, the Appeal Panel was incorrect in holding that the Hearing Panel erred in law in failing to apply its modified W. (D.) test.
Indeed, the application of the second step of that test would not have changed the decision of the Hearing Panel. They did not believe the respondent. On the evidence that they accepted, they found that there was clear, convincing and cogent proof of misconduct.
103In what might be considered non-binding obiter (see R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 at para. 54-7) at para. 31 of the McDougall case, the court stated:
In Ontario Professional Discipline cases, the balance of probabilities requires that proof be “clear and convincing and based upon cogent evidence” (see Heath v. College of Physicians & Surgeons (Ontario) (1997), 1997 14524 (ON SCDC), 6 Admin. L.R. (3d) 304 (Ont. Ct. (Gen. Div.)), at para. 53).
104Statutory disciplinary hearings in an employment and administrative law context are not ordinary civil proceedings. Nor are they criminal proceedings: Galassi v. Hamilton (City) Police Service, [2005] O.J. No. 2301 (C.A.) at para. 34. That said, [d]isciplinary proceedings in the police context have been characterized as “quasi-criminal in nature”: Blakely v. Quinte West Police Service, supra at para. 14. Charges under the P.S.A. can result in dismissal from the public service of the police employer.
105Counsel appearing before this panel did not refer to Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services) (2002), 2002 45090 (ON CA), 61 O.R. (3d) 649 (C.A.) (CCLA v. OCCPS). It is not apparent that the courts in the McDougall or Neinstein cases were referred to the decision either. The case specifically speaks to the standard of proof in s. 64(10) of the P.S.A. At para. 45-50, the court stated:
I find it convenient to address first the submission of the interveners that, pursuant to ss. 64(6) and (7), for the Chief to hold a hearing based on a complaint, there must be reasonable and probable grounds on which the Chief can base an opinion that there has been misconduct or unsatisfactory work performance by a police officer.
The overall legislative purpose contained in the Police Services Act is, as noted by Abella J.A. in Browne, supra at para. 67, to increase public confidence in the provision of police services. The high threshold proposed by the interveners for reviewing police conduct would not serve this purpose.
The requirement in s. 64(7) that a hearing be held if there “may” have been misconduct by the police officer connotes “possibility” rather than “probability” and is a good indication that the standard for a hearing is not “reasonable and probable grounds”.
The standard of “reasonable and probable grounds” put forward by the interveners is, in the submission of CCLA and the complainants, too close to the standard of “clear and convincing evidence”, the standard required to be met for a finding of misconduct after a hearing is held under s. 64(10):
(10) At the conclusion of the hearing, if misconduct or unsatisfactory work performance is proved on clear and convincing evidence, the Chief shall take any action described in section 68.
At p. 136 of P. Ceyssens et al., Ontario Police Services Act, Fully Annotated, 2002-2003 ed. (B.C.: Earlscourt, 2002) the authors discuss the standard clear and convincing evidence as follows: “Clear and convincing evidence was defined in Allan v. Munro, Ont. Bd. Inq., 27 July, 1994 to mean ‘weighty, cogent and reliable evidence upon which a trier of fact, acting with care and caution, can come to the fair and reasonable conclusion that the officer is guilty of misconduct’ (p. 11). This approach has been generally endorsed in other decisions.” [Citations omitted [by original]].
I agree that using “reasonable and probable grounds” as the standard for ordering a hearing would render the two-stage process virtually meaningless because it is too close to the “clear and convincing evidence” standard at a hearing. The terminology in ss. 64(6) and (7) as compared with s. 64(10) indicates that the Legislature intended a clear distinction between the two processes. The Chief is not required to hold a hearing only when a complaint has been proven on a balance of probabilities, or the slightly higher standard of clear and convincing evidence.
(emphasis added)
Application of Principles
106The Hearing Officer recognized that he should rely only on clear and convincing evidence. His articulation of effectively an ‘either/or’ test of credibility suggests that essential findings were made on the basis of a balance of probabilities.
107It does not necessarily follow that the holding of CCLA v. OCCPS that s. 64(10) of the P.S.A. imports a burden of persuasion exceeding 50+% has been overtaken by the reasoning in the McDougall case. Applying the CCLA decision, acceptance of evidence of prosecution witnesses in a police discipline hearing on a mere balance of probabilities standard would not necessarily discharge the prosecution’s burden of proof. Beyond acceptance of the evidence of prosecution witnesses and rejection of the defence evidence, the trier of fact would need to be satisfied that, on the whole of the evidence, the essential elements of the allegations have been established to the slightly higher standard of clear and convincing evidence.
108Given that the appeal is to be allowed on other bases, no final conclusion need be reached as to whether the Hearing Officer erred in concluding guilt on a balance of probabilities on the basis that acceptance of the evidence of prosecution witnesses Hart and Train inevitably meant that the appellant’s evidence must be disbelieved as opposed to asking whether, on the whole of the evidence, even accepting the evidence of the prosecution witnesses, and rejecting defence evidence, guilt had been established upon “the slightly higher standard of clear and convincing evidence”.
(4) Sufficiency of Reasons/
Misapprehension and Failure to Consider Evidence
Governing Principles
109The usually cited rationale for reasons for judgment include justifying and explaining the result, accountability to the parties and the public, permitting meaningful appellate review, and ensuring that justice has been and is seen to be done: F.H. v. McDougall, supra, at para. 98. The forum for first-instance decision-making, “where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts”: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 15.
110In certain circumstances, the duty of procedural fairness will include a requirement that an administrative tribunal provide reasons for its decision: Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353, 2009 ONCA 749, [2009] O.J. No. 4501 (C.A.) at para. 29. In police discipline cases under the P.S.A., there is a legitimate expectation that reasons for the decision will be provided. The public interest dimensions of the statute, as well as the stigma and range of penalty, all speak to the need for adequate reasons. Where reasons are required in an administrative law context, the duty is one of procedural fairness: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at para. 43.
111Appellate review of reasons for judgment mandates a functional and contextual approach having regard to the totality of the evidence and the critical issues in the case. In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 35, the court stated:
In summary, the cases confirm:
(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, at p. 524).
(2) The basis for the trial judge's verdict must be "intelligible", or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge's process in arriving at the verdict is unnecessary.
(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the "live" issues as they emerged during the trial.
This summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles.
112Recognizing that in the context of administrative tribunals “[o]ne of those realities is that many decisions by such agencies are made by nonlawyers” (Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, [2009] O.J. No. 3900 (C.A.) at para. 43), “it follows that courts should not be overly critical of the language employed by such bodies and seize on a few words as being destructive of the entire disciplinary process”: Del Core v. College of Pharmacists (Ont) (1985), 1985 119 (ON CA), 51 O.R. (2d) 1 (C.A.) at 8. Necessarily, “appellate review does not call for a word-by-word analysis” of reasons – “The task is to assess the overall, common sense meaning, not to parse the individual linguistic components”: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at para. 19.
113A decision-maker need not “expound on evidence which is uncontroversial”: R. v. R.E.M., supra, at para. 20. Reasons “need not refer to every piece of evidence to be sufficient, but must simply provide an adequate explanation upon which the decision was reached”: Clifford v. Ontario Municipal Employees Retirement System, supra, at para. 40. The judgment need not “answer each and every argument of counsel”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 30. Similarly, a decision-maker “need not address every conflict in the evidence however peripheral”: R. v. Antonatos, 2009 ONCA 884 at para. 3.
114Although a reviewing court does not assess reasons on a “stand-alone basis”, where reasons for judgment prevent meaningful appellate review of the decision, error of law will have been demonstrated: R. v. Wadforth (2009), 2009 ONCA 716, 247 C.C.C. (3d) 466 (Ont. C.A.) at para. 69, 73. In an administrative law context, quite apart from any review of the outcome reached by the tribunal, compliance with the legal obligation to give adequate reasons is a matter directly relating to procedural fairness: Clifford v. Ontario Municipal Employees Retirement System, supra, at para. 22, 24, 32.
115What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. In some cases, it cannot be said that the decision-maker “seized the substance of the matter”: R. v. R.E.M., supra, at para. 46, 50, 55, 57. This will be so where the reasons are unresponsive “to the case’s live issues and the parties’ key arguments”: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 at para. 20. What is generally objectionable is “generic and conclusory language of the omnibus finding” (R. v. Wadforth, supra, at para. 59, 71) or “little or no explanation of the reasoning process”: Gray v. Ontario (Director, Disability Support Program) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364 (C.A.) at para. 24. “The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion”: Via Rail Canada Inc. v. Lemonde (2000), 2000 16275 (FCA), 193 D.L.R. (4th) 357 (Fed. C.A.) at para. 22; Northwestern Utilities Ltd. et al. v. Edmonton (City), 1978 17 (SCC), [1979] 1 S.C.R. 684 at 706.
116“[I]nadequate reasons with respect to credibility may justify appellate intervention”: R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23. While a decision-maker’s reasons “do not need to meet a standard of perfection” (R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32 at para. 2), a “failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error”: R. v. Dinardo, supra at para. 2, 26; R. v. Braich, supra, at para. 23; Sagl v. Cosburn, Griffiths & Brandham Insurance Brokers Ltd., 2009 ONCA 388, [2009] O.J. No. 1879 (C.A.) at para. 99, 111. A decision-maker should “advert to…critical matters” central to the issue of credibility: R. v. R.E.M., supra, at para. 33. “In some cases, the failure to explain or justify a credibility finding may disentitle a trial judge to the appellate deference ordinarily accorded these findings”: R. v. Y.M. (2004), 2004 39045 (ON CA), 71 O.R. (3d) 388 (C.A.) at para. 20 (leave to appeal refused [2004] S.C.C.A. No. 340).
117As a general rule, more detail may be required in reasons where the trier is required “to resolve…contradictory evidence on a key issue”: R. v. R.E.M., supra, at para. 44; R. v. Dinardo, supra, at para. 27; R. v. D.R., 1996 207 (SCC), [1996] 2 S.C.R. 291 at para. 53-5; R. v. Wadforth, supra, at para. 65, 67, 72. Where the evidence is contradictory, “the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions”: R. v. R.E.M., supra, at para. 55. “Findings on credibility must be made with regard to the other evidence in the case, thus the need to make at least some reference to the contradictory evidence”: R. v. Wadforth, supra, at para. 67. It is incumbent on the decision-maker “to explain, even in succinct terms, how he resolved…difficulties” in a witness’ testimony “to reach a verdict”: R. v. Dinardo, supra, at para. 29, 34.
118An error of law, often termed as a “misapprehension of evidence”, can be documented where there is a rational basis for concluding that any of the following has occurred:
(1) error in appreciation of a relevant issue: R. v. R.E.M., supra, at para. 38; R. v. Macdonald, 1976 140 (SCC), [1977] 2 S.C.R. 665 at 673; R. v. Harper, 1982 11 (SCC), [1982] 1 S.C.R. 2 at 14-5;
(2) error in appreciation of evidence that would affect the propriety of the verdict including failure to assign proper effect to the evidence: R. v. R.E.M., supra, at para. 38, 56; R. v. Wadforth, supra, at para. 79; R. v. J.M.H., 2009 ONCA 834, [2009] O.J. No. 4963 (C.A.) at para. 34;
(3) a complete disregard of evidence relevant to a material issue capable of affecting the verdict: R. v. R.E.M., supra, at para. 56; R. v. Wadforth, supra, at para. 79; R. v. Lagace (2003), 2003 30886 (ON CA), 181 C.C.C. (3d) 12 (Ont. C.A.) at para. 44;
(4) a lack of “informed analysis of the impurities” of a witness’ evidence leading to the conclusion that the trier of fact did not seize the substance of the critical issue in assessment of credibility: R. v. Wadforth, supra, at para. 59, 72;
(5) “mistakes about the substance of evidence”: R. v. Wadforth, supra, at para. 79; R. v. J.M.H., supra, at para. 34; R. v. Lagace, supra, at para. 41;
(6) failure “to direct her or himself to all the evidence relevant to a material issue” (emphasis of original): R. v. J.M.H., supra, at para. 37; R. v. Harper, supra at 14;
(7) “an omission…to indicate an awareness of evidence that could affect the verdict”: R. v. Macdonald, supra, at 673.
119Without a legally correct approach to the evidence, “the final step in the process of adjudication, weighing the evidence, may be flawed”: R. v. Wadforth, supra, at para. 36. Establishing misapprehension of evidence does not of itself entitle appellate relief – “[w]hat is required is some link or nexus between the misapprehension and the core elements of the judge’s reasoning resulting in a conviction”: R. v. Wadforth, supra, at para. 80.
(a) Alcohol, Drugs and Giroux’s Reliability
The Context
120Lisa Lalande’s December 20, 2005 statement to police investigators was admitted into evidence. She did not testify at the hearing. In describing her recall of the events of January 14, 2001, Lalande stated:
A. He [Giroux] left ranting and raving being his drunken usual self.
Q. You said that he was drunk. Do you know how much he had to drink that day?
A. More than a 6 pack. A six pack is more than Richard can handle. If it was the weekend, he would have had more and probably didn’t go to sleep. He was also into percs back then so he may have been on them as well.
121Reading this statement excerpt into the record, Richard Giroux was cross-examined by the prosecutor as to his condition:
Q. Just at that point, do you recall that you were – you were drinking around that time, Mr. Giroux?
A. I wasn’t drunk. This is – this is like ten o’clock in the morning.
Q. Okay. Well, Mr. Giroux, if I went through your criminal record I would find lots of –
A. Drunkenness; eh?
Q. Drunk and –
A. Yeah, I know. I believe you.
Q. -- impaired. Yeah, yeah. Is it fair to say you had a problem with substances?
A. Yes, I did.
122The prosecutor’s questions then turned to other subjects in the Lalande statement:
Q. Right. Okay. Question, “Before you called the police, did you and Richard get into any kind of physical altercation that day?” Answer, “Guaranteed.” Question, “Did Richard have any injuries on him that you were around – aware of when he left the house?” Answer, “None to my knowledge. He may have had –
A. A twisted ankle.
Q. What does it say –
A. A twisted ankle.
Q. “A twisted ankle, but I’m not positive”.
Question, “Did you see Richard Giroux after he was arrested by the police that day?” Answer, “No. He probably would have had head – what’s that, head?
MR. BRAUTI: Conditions not to speak with me.
BY MR. PARISE:
Q. Oh, not to speak with me. All right. Thank you. Question, “Did Richard Giroux ever tell you that he was assaulted by the police when he was arrested?” Answer, “Not to my knowledge, no.” Question, “Did you and Richard ever get together – get back together with Richard Giroux?” Answer, “On and off as friends.” Okay. All right. Is that – up to that point, Mr. Giroux, is that pretty fair –
A. Yeah.
Q. -- on the part of Ms. Lalande?
A. Yeah.
123The Hearing Officer’s reasons treated the impairment issue in this way:
Mr. Giroux presented himself as someone who had a fair number of facts at his disposal, but someone who was unable to clearly define which facts went with a variety of similar incidents. There are a number of possibilities for this, including the passage of time, alleged alcohol abuse and alleged drug abuse. In her statement to the police, Ms. Lalande had indicated around the same time as these incident[s] occurred, Mr. Giroux was using ‘Perks’, undoubtedly meaning Percocet. Although I am not qualified to assess the likely effects of such a drug on any particular individual, the potential side effects of this drug, particularly when the drug is ingested along with alcohol, cause me to suffer significant apprehension relating to the weight to be afforded Mr. Giroux’s testimony.
I do not believe that Mr. Giroux was lying to fabricating the facts. I simply find his account to be completely unreliable.
124The Commission observed that while the Hearing Officer engaged in “speculation” as to possibilities for Mr. Giroux’s confusion, the adjudicator also stated:
Further, RG had accepted as fair, the outline LL provided about the possibility of his impairment by drugs or alcohol at the time.
125Mr. Brauti advanced a number of points on the appellant’s behalf:
(1) The finding that Mr. Giroux had consumed excess alcohol was unreasonable. The victim specifically denied that he was drunk. Reliance on Lalande’s unsworn and untested account to the contrary was not reasonable. No police witness testified to smelling alcohol on Giroux or noting any signs of impairment.
(2) Mr. Giroux was never asked whether he had consumed percocets on January 14, 2001.
(3) To suggest that Mr. Giroux’s agreement that Lalande’s account was “fair” “up to that point”, several questions after the alcohol/drugs subject matter had been dealt with, constituted agreement with her account on that topic is entirely unreasonable and at odds with Giroux’s own testimony.
(4) After properly stating that he was unqualified to assess the likely effects of a drug on an individual, the Hearing Officer nevertheless did so in the absence of expert evidence.
126The respondent takes the position that the record reasonably established that the victim had consumed alcohol and percocets on the relevant date.
Additional Principles
127Section 16 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 provides that:
A tribunal may, in making its decision in any proceeding,
(a) take notice of facts that may be judicially noticed; and
(b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.
128Judicial notice of facts in issue dispenses with formal proof of those facts which are clearly uncontroversial or beyond reasonable dispute – is the fact so notorious or generally accepted as not to be the subject of debate among reasonable persons or capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy? (R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 (S.C.C.) at 115).
129While it can be judicially noticed that alcoholic spirits can be intoxicating (R. v. Hayes (1924), 1924 514 (ON CA), 43 C.C.C. 398 (Ont. C.A.) at 400-1), notice cannot be taken of the physiological impact of a certain amount of alcohol consumption, or an identified blood/alcohol level, on a specific individual: R. v. Letford (2000), 2000 17024 (ON CA), 51 O.R. (3d) 737 (C.A.) at para. 22; R. v. Ostrowski (1958), 1958 102 (ON SC), 122 C.C.C. 196 (Ont. H.C.) at 196-7.
130It is not common knowledge that various pills or narcotic substances have certain properties or impacts, for example that Tylenol 3 or Contac-C can have certain effects on a person: R. v. Barstead, [2000] O.J. No. 2652 (S.C.J.) at para. 12-4; R. v. Hollahan (1969), 1969 1689 (NS SC), 7 C.R.N.S. 307 (N.S. Co. Ct.) at 312-3. Expert evidence is required.
Application of Principles
131Assuming the Hearing Officer could reasonably find that Mr. Giroux consumed alcohol the morning of January 14, 2001, although not a finding this Court may have made, it could not reasonably be found that Giroux had consumed percocets on that date given that Lalande’s unsworn information was that he “may” have been on them and the entire absence of direct questioning of Giroux as to whether he had taken percs on the date he was assaulted.
132In any event, the Hearing Officer erred in law in purporting to take judicial notice that the combined effects of the consumption of alcohol and percs would negatively impact on an individual’s ability to perceive and recall experienced events. The subject was neither notorious nor within any specialized knowledge of the tribunal. This was properly the subject of expert evidence only. The Commission recognized that the Hearing Officer engaged in “speculation” as to the possible reasons for deficiencies or weaknesses in Mr. Giroux’s testimony. Speculation, as opposed to reliance on admissible evidence, is an impermissible approach to fact-finding.
133The Hearing Officer not only advanced poly-substance ingestion as his first reason for doubting Mr. Giroux’s reliability, but also characterized it as raising “significant apprehension” as to the weight which would be afforded the witness’ evidence. In these circumstances, it cannot be said that the adjudicator’s conclusion of witness unreliability would necessarily have been the same had the tribunal not erred in the manner described. Although inconsistencies existed in Mr. Giroux’s evidence, he was also quite consistent respecting a number of material details of the January 2001 arrest.
(b) Additional Errors in Assessing Giroux’s Evidence
The Context
134The Hearing Officer arrived at these further conclusions relating to the reliablility of Mr. Giroux’s evidence:
His testimony about the supervisor’s vehicle arriving is an example of Mr. Giroux’s apparent inability to accurately relate what transpired on January 14th, 2001. The evidence is quite clear that the vehicle driven by the supervisor – Sergeant McCormick – was a Ford Expedition. There are very few non-commercial motor vehicles that are larger than a Ford Expedition. It is inconceivable to me that a Ford Expedition could be characterized as a ‘little van’, as Mr. Giroux did on several occasions. The issue that is raised by this testimony is Mr. Giroux’s inability to accurately observe the events that were unfolding around him that day, and his inability to accurately relate them to me in his testimony.
Along with my concerns regarding the reliability of Mr. Giroux’s testimony regarding the specifics of the events on the day in question, his description of the events also cause me to have grave doubts about his ability to actually see and hear all that he claims to have seen and heard. By his own testimony, he was laying face down on the ground, protecting himself from being struck. From that position he indicated that he was able to see a supervisor’s vehicle arrive, describe the driver of that vehicle, and was able ascertain whether he was being punched, kicked or otherwise struck and by whom. It is inconceivable that anyone who was attempting to protect his face or head in the manner he described would be able to accurately describe all of the detail Mr. Giroux provided. The known inaccuracies of his account illustrate the weakness of his testimony. I do not believe that Mr. Giroux was lying to fabricating the facts. I simply find his account to be completely unreliable.
When the events of November 2001 were put to Mr. Giroux and juxtaposed to the events of January 2001, there were striking similarities. When the details of yet another similar situation are considered, as related by Ms. Lalande, I am gravely concerned that Mr. Giroux’s account of January 14th is a mixture of a number of similar incidents.
The Commission stated:
The Hearing Officer considered the evidence and concluded that RG was not credible.
[RG] presented himself as someone who had a fair number of facts at his disposal, but someone who was unable to clearly define which facts went with a variety of similar incidents.
This is the Hearing Officer’s finding, after hearing all of the witnesses’ testimony over a number of days. His speculation as to the “number of possibilities for this” does not detract from his finding that RG’s testimony is confused.
RG’s testimony is riddled with inconsistencies. The Hearing Officer’s finding is not void of an evidentiary foundation.
135The appellant submitted that the Hearing Officer unreasonably rejected Mr. Giroux’s evidence on key issues because of alleged inconsistencies or inaccuracies on peripheral issues.
136Seizing on the witness’ description of the Ford Expedition driven by the appellant on January 14, 2001 as a little van, as opposed to a SUV, as a reason for finding the witness was unable to accurately recall and narrate the events of January 14, 2001, failed to take account of the totality of the evidence. In January 2001, the Expedition was the only non-sedan cruiser at the scene. There was no evidence of a van or SUV at the scene of Giroux’s November 2001 arrest. Mr. Giroux identified the occupant of the little van as a supervisor. The appellant was the only supervisor at the scene of the January 2001 arrest and there was no evidence of the presence of a supervisor at the November 2001 arrest.
137It was argued that the Hearing Officer unreasonably concluded that Mr. Giroux, who admitted attempts to protect his face from injury, could not observe the arrival of the supervisor’s vehicle, the driver of that vehicle, and identify how he was being assaulted and by whom. Mr. Giroux described the lone officer initially present at the scene who took him to the ground and handcuffed him as the individual who perpetrated the assault. The witness testified that the assault ended as the supervisor’s vehicle arrived. The brief attempts to protect his face did not prevent Mr. Giroux from making the observations he reported.
138In concluding witness confusion existed on the basis of “striking similarities” in the reported circumstances of the two 2001 arrests together with Ms. Lalande’s account relating to the November 2001 arrest, the Hearing Officer failed to consider the numerous accurately reported distinctions between the two arrests described by Mr. Giroux as well as the untested, unsworn character of Lalande’s information.
139The respondent relied upon inconsistencies within Mr. Giroux’s testimony and between that testimony and prior out-of-court statements to submit that the Hearing Officer’s conclusions as to Giroux’s unreliability were entirely reasonable including findings as to the witness’ confusion as to what transpired on each arrest date. The Hearing Officer’s findings of fact are entitled to deference in the absence of palpable and overriding error.
Application of Principles
140This ground of appeal raises largely factual questions including interpretations and evaluations of Mr. Giroux’s testimony. The Hearing Officer enjoyed the inestimable advantage of hearing and seeing the witness testify. The adjudicator had no obligation to refer to all aspects of the record relevant to assessment of the quality of Mr. Giroux’s evidence. He did not find that Giroux was an incredible witness but rather one whose evidence was of suspect reliability.
141Again, while members of this Court acting as triers may not have formed the same impressions or drawn the same inferences as the Hearing Officer, it cannot be said that the adjudicator ignored relevant evidence or made unreasonable findings of fact.
(c) Const. Hart’s Credibility
The Context
142Const. Hart was the only witness to assign blame to the appellant for kicking the prisoner in the head. As such, he was a key prosecution witness. The Hearing Officer favourably assessed the witness’ credibility stating:
Constable Hart testified that after Mr. Giroux had complied with his commands and when he had Mr. Giroux on the ground, Sergeant McCormick approached from Constable Hart’s right side, and for no apparent reason, kicked Mr. Giroux in the head. There was nothing tentative about Constable Hart’s description of these events. His account of Sergeant McCormick’s actions was plain and simple. Constable Hart described his feeling confused about why Sergeant McCormick would have done such a thing, and also described feeling annoyed that Sergeant McCormick would assault his prisoner and then leave Constable Hart to deal with the aftermath.
Constable Hart had no notes of these events. When asked about this while testifying before me, Constable Hart explained that he did not want to put Sergeant McCormick in jeopardy by recording an assault in his notebook. While this is clearly wrong, it is, nonetheless, a believable explanation.
After having heard Constable Hart’s testimony, and after having watched him quite closely while he testified, and giving due consideration to the O’Hallaran Test, I am left with no doubt whatsoever that what he testified to did, in fact, occur. There can be no logical or reasonable explanation for Constable Hart fabricating this story, since these events only came to light as part of a much larger investigation and that Mr. Giroux did not formally complain that he had been assaulted.
143The Commission made these observations:
The Hearing Officer next considered the credibility of Constable Hart. He dealt with the troubling fact that Constable Hart had made no notation of the kick and did not report the kick. He accepted Constable Hart’s reasons for such omission. It is open to the Hearing Officer to accept or reject this testimony. In fact it is the Hearing Officer’s job to make such decisions.
The Hearing Officer listened to Constable Hart. He observed Constable Hart and then he applied the appropriate test for weighing the evidence, the O’Hallaran Test, and concluded “I am left with no doubt whatsoever that what he testified to did, in fact, occur”.
The Hearing Officer’s observation that “(t)here can be no logical or reasonable explanation for Constable Hart fabricating this story, since these events only came to light as part of a much larger investigation and that RG did not formally complain that he had been assaulted” is an observation and is not the basis for his finding.
144Mr. Brauti submitted that the adjudicator’s credibility analysis of Const. Hart was significantly imbalanced and apparently ignored critical evidence which necessarily fell to be evaluated before any final assessment of the witness’ evidence could reasonably be made. The Hearing Officer’s reasons limited the matters relevant to Hart’s believability to his demeanour and manner of testifying as well as acceptance of an explanation of the omission to make relevant notes.
145Counsel pointed to these matters which it was argued were critical to a complete examination of Const. Hart’s credibility:
(1) Const. Hart was the only officer on scene when Richard Giroux was taken to the ground, arrested and handcuffed.
(2) The prisoner denied receiving a kick to the face – it was the arresting officer who banged his face into the pavement injuring his nose.
(3) Richard Giroux’s description of the police officer who smashed his face on the pavement was circumstantially consistent with Const. Hart’s appearance and not the appellant (hair colour, age, stature, gloves).
(4) In his notebook, Const. Hart struck out reference to “pavement” in describing the arrest of Giroux. He had no explanation for the alteration. The notes were not initialled according to the relevant Service policy.
(5) On Const. Hart’s version of events, he not only made no note of the cause of Giroux’s injuries, and no report to a supervisor, but as a peace officer he witnessed a criminal offence and did nothing.
(6) Far from having no motive to fabricate a story of injury to the prisoner occasioned by another officer, if responsible for the assault, Const. Hart had every reason to execute a pre-emptive strike and to deflect blame from himself by relating such a false account to the criminal investigators and thereafter.
(7) No reference was made to the evidence suggesting the appearance of the injury to Giroux’s face was more consistent with facial contact with pavement as opposed to a kick.
146The respondent submitted that the adjudicator’s reasons for judgment “adequately demonstrate the rationale for the Hearing Officer’s conclusions on credibility” and that no error exists in the adjudicator’s analysis of Const. Hart’s evidence.
Application of Principles
147Const. Hart was a key prosecution witness. He was the sole witness to give evidence of a kick by the appellant to Mr. Giroux’s head in a case where evidence to the contrary existed from more than one witness. Of equal significance, was the officer’s status as the “other suspect”.
148For a number of reasons, the Hearing Officer’s reasons accepting the credibility of Const. Hart’s account were legally inadequate.
149Although the Commission considered the adjudicator’s conclusion as to the absence of any logical or reasonable reason for Const. Hart to fabricate an account of wrong-doing by the appellant to be merely “an observation” and not the basis for the favourable assessment of Const. Hart’s evidence, it is clear that the adjudicator’s view of the motive-to-fabricate issue was not simply a passing observation but rather a factor of some importance in the credibility analysis. The Hearing Officer misapprehended the evidence by eliminating any consideration of motive to mislead on the part of Const. Hart. As the arresting officer, Hart was approached first respecting the allegation of physical abuse of Giroux. If responsible for the assault, he was at risk of P.S.A. and/or criminal charges. The constable would have every incentive to deflect blame to someone else and to stick to that story. Indeed, as Const. Hart testified at the hearing in accordance with the prosecution view of the case, he still potentially faced P.S.A. charges.
150Further, discriminating review of the reasons relating to Const. Hart’s credibility leads to the conclusion that the Hearing Officer failed to seize the substance of the matter in the sense of undertaking analysis responsive to the live issues and key arguments of the parties. How, if at all, did the adjudicator resolve significant aspects of the evidence, many of which are listed in para. 147, supra, capable of negatively impacting upon Hart’s believability? For example, what was the path of reasoning by which the Hearing Officer dismissed the probative effect of Hart’s alteration of his notebook?
151The failure of the reasons to advert to contradictory evidence relevant to Const. Hart’s credibility tends to defeat full appellate review of the reasoning process of the tribunal. In the circumstances of a prosecution where Hart played a pivotal role in assigning guilt, evidence contradicted his account, and he was centered out by the defence as the party responsible for the assault, these deficiencies in the reasons compromise procedural fairness to a degree amounting to reversible error.
(d) The ‘Slap’ Transaction
The Context
152The appellant submitted that the Hearing Officer’s reasons were entirely inadequate respecting acceptance of Const. Train’s evidence to conclude that he unlawfully assaulted Richard Giroux.
153The Hearing Officer stated:
[I] found the testimony of (Auxiliary) Constable Train to be as compelling as Constable Hart’s, but in relation to the hand strike near the cruiser after the arrest. Constable Train testified that as he was looking at Sergeant McCormick, Constable Hart and Mr. Giroux standing near the rear of the police car, he saw Sergeant McCormick strike Mr. Giroux with an open hand in the area of Mr. Giroux’s face. The accounts of others in the vicinity indicate quite clearly that at the time, Mr. Giroux was handcuffed. There were some indications of resistance by Mr. Giroux, but these efforts at resistance were not described in such a way that they would justify such a use of force.
Constable Train was, at the time of these events, an Auxiliary Constable with the Greater Sudbury Police Service. His stated wish was to become a full-time officer with the service. It is not surprising at all that he would be hesitant to report the Sergeant’s actions, and it is likewise not surprising that he would not make note of Sergeant McCormick’s actions in his duty notebook.
When he and Constable McNamara were back in their cruiser, Constable Train advised Constable McNamara what he had observed in relation to Sergeant McCormick slapping Mr. Giroux.
154Mr. Brauti noted that in accepting Const. Train’s testimony the Hearing Officer forgave the officer’s failure to make notes and to report seeing the appellant slap the handcuffed prisoner without any analysis of the competing evidence supporting the appellant’s innocence including the following:
(1) the victim denied that he was slapped;
(2) Const. Hart, who had unbroken custody of Giroux, neither heard nor saw a slap;
(3) the appellant denied slapping the prisoner;
(4) Const. Train recalled few details of the alleged slap and acknowledged under cross-examination that the account of his observations may have been wrong;
(5) Const. McNamara observed Const. Hart walking the prisoner to his cruiser where the appellant then joined them – he did not see anyone slap the prisoner.
155The respondent again submitted that the reasons of the Hearing Officer adequately demonstrated the rationale for his conclusions respecting witness credibility and that no misapprehension of evidence transpired relating to the assessment of Const. Train’s testimony.
Application of Principles
156Whether described in terms of a failure to consider the totality of the evidence, or a failure to advert to important contradictory evidence, the reasons of the Hearing Officer do not reveal that he seized the substance of the issue relating to the reliability of Const. Train’s account of a slap delivered to Mr. Giroux.
157In limiting his explanation for accepting Train’s testimony that the appellant slapped the prisoner to an understandable reason for the absence of a relevant notebook entry, and, the making of a prior consistent out-of-court statement by the officer, the Hearing Officer never tackled the reality that the weight of the evidence, including that of the prosecution witness Hart, was against the version advanced by Const. Train. Again, the path of reasoning considering all relevant evidence has been withheld from appellate scrutiny.
(e) Rejection of the Appellant’s Evidence
The Context
158Mr. Brauti submitted that it is essential to the adequacy of reasons for judgment, if not a principle of natural justice, that a person prosecuted for a disciplinary offence be informed of the reason(s) why his sworn evidence was rejected by the adjudicator. Counsel argued that in the present case the effective extent of the Hearing Officer’s analysis for rejecting the appellant’s evidence was this statement:
For me to accept Sergeant McCormick’s version of these events, I would have to believe that Constable Hart is either lying or mistaken and that Constable Train is either lying or mistaken. I believe neither of these.
159In oral argument, Mr. Parisé agreed that no other reasons were stated for rejection of the appellant’s testimony.
160The Commission stated:
With respect to Staff Sergeant McCormick’s testimony the Hearing Officer commented as follows:
For me to accept Sergeant McCormick’s version of these events, I would have to believe that Constable Hart is either lying or mistaken and that Constable Train is either lying or mistaken. I believe neither of these.
Although it may have been preferable for the Hearing Officer to state specifically the reasons why he did not find Staff Sergeant McCormick’s testimony to be credible, he has indirectly done so through his acceptance of the testimony of Constables Hart and Train where it contradicted Staff Sergeant McCormick’s evidence. There is no requirement for him to itemize each point of acceptance. As well, the failure to provide detailed reasons is not fatal. Law Society of Upper Canada v. Neinstein supra, at paragraph 84 and Trotter v. College of Nurses of Ontario [1991] O.J. no. 348, 44 O.A.C. 302 (Gen. Div.)
161The appellant noted that the Hearing Officer commenced his analysis of the credibility of the witnesses by adverse findings against a defence witness, Richard Giroux, before turning to the prosecution witnesses and then, effectively by default, concluding that the appellant’s evidence should not be accepted. By proceeding in this fashion, it is said, the adjudicator failed to consider, and in turn communicate, why the appellant’s exculpatory evidence, frequently supported by evidence in the prosecution’s case itself, was rejected. Mr. Brauti further submitted that the Hearing Officer failed to consider the probative value of the good character evidence of the appellant who had “no history of criminality or misconduct”.
162The respondent supported the adequacy of the reasons submitting that the Hearing Officer had sound reasons for rejecting the appellant’s evidence. It was argued that the adjudicator’s reasons “demonstrate the rationale” for his credibility findings. Alternatively, it was submitted that “rejection of the creditability of a witness without reasons is not necessarily a reversible error”.
Additional Principles
163At a minimum, it is “useful” for a trier to attempt to articulate the reasons for disbelieving a witness: R. v. R.E.M., supra, at para. 49. Where the evidence of a principal prosecution witness was “not seriously challenged” (R. v. R.E.M., supra, at para. 66), or the accused’s evidence was “obviously incredible” or “inherently unreliable”, or the prosecution evidence “overwhelming”, it may be that little explanation is necessary for disbelief of the accused’s evidence: R. v. Y.M., supra, at para 23. Otherwise, the accused’s denial of responsibility cannot simply be ignored where it contradicts other evidence: R. v. Wadforth, supra, at para. 58-9, 72. There exists a duty to clearly state the “grounds for disbelief…if an appearance of arbitrariness is to be avoided”: Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services (1985), 1985 2053 (ON SC), 51 O.R. (2d) 302 (Div. Ct.) at 310. In other words, a decision-maker is “under a duty to give its reasons for casting doubt upon the appellant’s credibility in clear and unmistakable terms” not “vague and general terms”: Hilo v. Canada (Minister of Employment and Immigration), 1991 14469 (FCA), [1991] F.C.J. No. 228 (C.A.) at p. 3. The Commission has itself identified this very error in other cases: Pigeau v. Ontario Provincial Police, July 15/09 OCCPS at p. 12 (adjudicator finding T to be credible but “did not…comment why the credibility of the other witnesses was less acceptable”).
164In the Y.M. case, supra, after expressing acceptance of the evidence of a prosecution witness, the trial judge stated:
It is clear as well that for me to have made these findings of fact, I reject outright Mr. Y.M.’s denials.
165In these circumstances, at para. 14, 20 and 26-7, the court stated:
Having accepted A.G.’s evidence, he simply rejected the appellant’s evidence.
Trial judges have a duty to give reasoned reasons for their decisions. This duty applies to their credibility assessments as much as to their fact finding and legal analysis. In some cases, the failure to explain or justify a credibility finding may disentitle a trial judge to the appellate deference ordinarily accorded these findings.
…the trial judge’s failure to explain why he rejected the appellant’s evidence amounts to an error of law that justifies this court’s intervention.
The appellant was entitled to some analysis of his evidence, alone and in the context of the evidence as a whole: see R. v. Lagace (2003), 2003 30886 (ON CA), 181 C.C.C. (3d) 12 (Ont. C.A.). More importantly, he was entitled to know why his denials were disbelieved. The words of this court in R. v. Strong, [2001] O.J. No. 1362 (C.A.) at para. 9 apply here:
Second, the trial judge offered no reason for his rejection of the appellant’s evidence. He simply said “I do not believe him”. In a case like this, some explanation for that conclusory statement was required. The appellant’s evidence was not inherently incredible.
166Evidence of the good character of a person charged with an offence is relevant for a decision-maker on two bases as it may be concluded (1) that such evidence of good character would render it unlikely that the respondent would have done the acts of which complaint is made and (2) that such evidence tended to enhance the credibility of the respondent: R. v. Lagace, supra, at para. 35; Re College of Nurses v. Quiogue, supra, at para. 35.
Application of Principles
167The Commission considered it to “have been preferable” had the Hearing Officer provided specific reasons as to why the appellant’s evidence was not believed. In the circumstances of the present case, the absence of any effective analysis of the appellant’s credibility constitutes error of law.
168The Hearing Officer’s summary conclusion for disbelief of the appellant precludes effective appellate review of the adjudicator’s path of reasoning and affords no real analysis for the appellant as to how his evidence, alone and in the context of the evidence as a whole, came to be rejected. In the words of the Y.M. decision, having “accepted” the evidence of a prosecution witness, “he simply rejected the appellant’s evidence”.
169It is unknown whether the Hearing Officer employed similar fact reasoning to disbelieve the appellant in the sense that the evidence of Const. Hart and Const. Train as to physical abuse of the prisoner by the appellant was cross-applied to render the testimony of each witness more believable. This approach was not argued by counsel before the Hearing Officer.
170The silence of the adjudicator’s reasons respecting the good character evidence, the appellant’s demeanour as a witness, and the details of his denial of responsibility serves to place the reasoning process of the Hearing Officer beyond meaningful review and, in a case where the evidence was contradictory and the appellant’s evidence not obviously incredible, provides no transparent notice to the appellant as to how his evidence came to be rejected. Such a denial of procedural fairness amounts to reversible error.
(5) Unreasonable Verdict
The Context
171Quite apart from the legal misdirection and non-direction already discussed, the appellant submitted that the Hearing Officer’s findings of guilt were based on a record incapable of meeting the standard of clear, convincing and cogent evidence.
172The respondent supported the Hearing Officer’s conclusions as reasonable.
Application of Principles
173The respondent Service elected to provide two particulars for each count to describe the alleged P.S.A. violations as opposed to four discrete charges. Proof of at least one particular per count properly founds guilt on a count or charge.
174Review of the totality of the hearing record leads to the conclusion that an adjudicator, acting reasonably and under proper legal self-instruction, could find that the appellant delivered a kick to Mr. Giroux’s head, an unnecessary use of force amounting to unlawful or unnecessary exercise of authority. This conclusion alone disposes of the appellant’s submission that the verdict upon the unlawful or unnecessary exercise of authority charge was unreasonable. Accordingly, while the whole of the evidence of the slap transaction particular appears to fall short of the clear and convincing evidence standard, that observation is effectively irrelevant to the lack of success of the appellant in persuading this Court that the verdict on this count was unreasonable.
175The finding of guilt as to neglect of duty was entirely reasonable respecting the particular describing the appellant’s failure to make notebook entries relating to his participation in the arrest of Mr. Giroux. The defence essentially acknowledged this to be so. The reasonableness of a Hearing Officer’s finding of neglect of duty on account of the alleged further failure to submit a use of force report is dependent on a reasonable finding, in a properly conducted hearing without legal error, that the appellant kicked Mr. Giroux in the head. Such a hearing was not held in the present case. Accordingly, the neglect of duty verdict is reasonably supportable only on the basis of the notebook allegation.
F. CONCLUSION
176In light of the identified legal errors, the appeal of misconduct is allowed respecting the Unlawful or Unnecessary Exercise of Authority count. The misconduct finding is set aside and a new hearing ordered before a differently constituted tribunal.
177The appeal is dismissed respecting the neglect of duty count. The Hearing Officer’s decision as to liability on the notebook particular was reasonable and unaffected by legal error. Because penalty was imposed on the basis of both particulars having been proven, the appeal against penalty is allowed, the penalty is set aside and the matter of the fit and appropriate penalty, restricted to the lack of compliance with the Service policy ADM 013, remitted to the newly assigned Hearing Officer.
178The parties agreed that a partial indemnity award of costs of $10,000.00 would be appropriate to the successful party. While success is somewhat divided on the appeal, the substance of the appeal engaged consideration of the charge on which a new hearing has been ordered. In the circumstances, costs are awarded in the appellant’s favour in the amount of $8,500.00 inclusive of G.S.T.
HILL J.
LAX J.
J. WILSON J. (concurring with the result, in partial dissent)
179I agree with the analysis and conclusions reached of Hill J. with respect to the disposition of this appeal. However, I respectfully do not accept the obiter commentary about the potential application of the principles of R. v. W.(D.),1991 93 (SCC), [1991] 1 S.C.R. 742 at 757-8 in the context of an administrative disciplinary proceeding outlined in paragraphs 91 to 107 of the decision.
180The W.(D.) test was developed as an aid for the trier of fact to assess whether the Crown has established proof beyond a reasonable doubt in the context of a criminal prosecution with conflicting testimony. As confirmed in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, the W.(D.) test is not an appropriate or useful tool in evaluating evidence in a civil case. In the Law Society of Upper Canada v. Neinstein, (2007), 2007 8001 (ON SCDC), 85 O.R. (3d) 446 (Div. Ct.), the court concluded at para. 66 (QL) that the Appeal Panel erred in law in finding that a modified W.(D.) test applied to test the credibility of witnesses in the administrative law context. To take principles developed for one legal context, and to apply them in a very different context runs the risk of seriously muddying the waters in the already complex and nuanced area of administrative law.
J. WILSON J.
Released: March 1, 2010
CITATION: McCormick v. Greater Sudbury Police Service, 2010 ONSC 270
DIVISIONAL COURT FILE NO.: 125/09
DATE: 20100301
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, HILL and LAX JJ.
B E T W E E N:
STAFF SERGEANT JOHN McCORMICK
Appellant
- and –
GREATER SUDBURY POLICE SERVICE
Respondent
REASONS FOR JUDGMENT
HILL J.
Released: March 1, 2010