COURT FILE NO.: 294/05
DATE: 20080116
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: NATHAN PARKER AND PAUL KOSCINSKI Appellants
- and - NIAGARA REGIONAL POLICE SERVICE Respondent
- and - WAYNE PENNER Respondent
BEFORE: CARNWATH, KITELEY & MURRAY JJ.
COUNSEL: Gary Clewley, for the Appellants Woodward McKaig, for the Respondent, Niagara Regional Police Service Wayne Penner, In person
HEARD: October 17, 2007
E N D O R S E M E N T
CARNWATH J.:
[1] Messrs. Parker and Koscinski are Constables with the Niagara Regional Police Service (“NRPS”). The appellants had arrested Mr. Penner during the trial of Mr. Penner’s wife on a traffic violation. Mr. Penner filed a complaint under Part V of the Police Services Act, (R.S.O. 1990, c. P.15) (“the Act”) which led to a disciplinary hearing before retired Superintendent Robert J. Fitches (“the Hearing Officer”). The Hearing Officer exonerated the officers and Mr. Penner appealed that decision.
[2] On appeal, the Ontario Civilian Commission on Police Services (“the Commission”) revoked the decision of the Hearing Officer and found the appellants guilty of unlawfully or unnecessarily exercising authority contrary to sections 2(1)(g)(i) and (ii) of the Code of Conduct, O. Reg. 123/98, made pursuant to the Act.
[3] Two issues are raised on this appeal:
(a) Did the Commission err in law by ignoring the findings of fact made by the Hearing Officer and, in some instances, by substituting its own findings of fact for those of the Hearing Officer?
(b) Did the Commission err in law by concluding the Hearing Officer was required to rule on whether a Justice of the Peace’s power to cite for contempt in the face of the court ousted the obligation of a police officer to arrest someone in court committing a criminal offence?
[4] Counsel for the NRPS joins with the appellants in his submission that the Commission erred on both points and that the appeal should be allowed.
BACKGROUND
[5] On January 28, 2003, Mr. Parker was in Provincial Offences Court in the City of St. Catharines to provide testimony for the trial of Wayne Penner’s wife, Marlene Penner. She was charged with failing to have a proper license plate affixed to the front of her car; it was Mr. Parker who had issued the traffic ticket under the Highway Traffic Act.
[6] Mr. Penner attended in court during his wife’s trial. While Mr. Parker was testifying, Mr. Penner made a number of comments aloud. These comments cannot be heard on the audio recording that was taken at the proceedings. When Mrs. Penner began to testify, Mr. Penner’s comments increased in volume and can be heard on the audio recording. David Brown, the Crown prosecuting the charge against Mrs. Penner, complained to the presiding Justice of the Peace at that point that Mr. Penner was being disruptive. The Justice of the Peace instructed Mr. Penner not to cause any interruption, but he continued to speak. The Court Security Officer then asked Mr. Penner to leave the courtroom, at which point Mr. Parker said to Mr. Penner, “Get up. Get up, out right now”. The Justice of the Peace immediately took a recess and left the courtroom.
[7] Mr. Parker then placed Mr. Penner under arrest. When Mr. Penner resisted, Mr. Koscinski, a Constable who was in court on another matter, assisted his colleague. The officers applied force to Mr. Penner in placing him under arrest. Mr. Parker then drove Mr. Penner to 11 Division. Mr. Penner was later taken to St. Catharines General Hospital for examination. His complaints were: being unsteady on his feet, a black right eye, various scrapes, sore ribs, a sore left elbow, a bruised left knee and a sore right wrist.
[8] Mr. Penner filed a complaint under Part V of the Act, which resulted in the disciplinary hearing against Mr. Parker and Mr. Koscinski.
THE HEARING OFFICER’S FINDINGS
[9] At the disciplinary hearing, the Hearing Officer canvassed the evidence of what happened in the courtroom on January 28, 2003. Mr. Penner, Mrs. Penner, several individuals who were in court on other matters, the court reporter, the Crown for Mrs. Penner’s trial, and the Court Security Officer all testified. He found both Mr. Parker and Mr. Koscinski not guilty of unlawfully or unnecessarily exercising their authority. This decision was based both on his findings of fact and certain findings in law.
[10] The Hearing Officer found that portions of Mr. Penner’s sworn testimony at the disciplinary hearing were untrue. Mr. Penner denied making any comments at all while his wife was testifying, which was directly contradicted by the evidence of other witnesses. Mr. Penner also stated that the Justice of the Peace said, “This gentleman can stay.” The Hearing Officer found that there was no evidence to support this assertion, as such a statement was not included in either the transcripts or the recording of the courtroom proceedings that day and no one else in the courtroom recalled it. Mrs. Penner affirmed her husband’s testimony and the Hearing Officer doubted her candour as a result.
[11] All the other witnesses recalled hearing Mr. Penner make comments throughout the proceedings. Some witnesses testified that they heard Mr. Penner using profanities; others did not. Those who heard the profanities were nearer to Mr. Penner in the courtroom than those who did not. In addition, the other witnesses testified that the Justice of the Peace told Mr. Penner to quiet down, and not that he could stay.
[12] The Hearing Officer addressed the issue of the recording of the proceedings in his reasons since it did not record the comments that the witnesses heard Mr. Penner make during Mr. Parker’s testimony. He accepted the court reporter’s technical description of the recording system, which was set up in the courtroom to capture the voices of the Justice of the Peace, any witnesses and counsel. Because the recording system was not designed to capture all sounds in the courtroom, the Hearing Officer found that the absence of a recording of Mr. Parker’s comments did not cause him to doubt that the comments were made.
[13] Mr. Penner’s conduct was escalating, not subsiding, despite the instructions from the Justice of the Peace and the Court Security Officer to quiet down. The Hearing Officer further found, based on witnesses’ testimony and the audio recording, that Mr. Penner did not stop interrupting the proceedings until Mr. Parker arrested him.
[14] With respect to the exact timing of the arrest, the Hearing Officer recounted Mr. Parker’s testimony that he first stood up and touched Mr. Penner’s arm while the Justice of the Peace was still in the courtroom, at which point Mr. Parker was telling Mr. Penner to leave the courtroom. The Justice of the Peace then quickly departed the room and Mr. Parker touched Mr. Penner’s arm again. It was when Mr. Penner pulled his arm away at this point that Mr. Parker decided to arrest Mr. Penner for causing a disturbance.
[15] Mr. Koscinski then became involved. As Mr. Penner resisted arrested, refusing to walk under his own power, the Constables dragged him out of the courtroom. The Constables then employed an “approved grounding technique and administered empty hand strikes and knee strikes to Mr. Penner’s torso to gain compliance”. This allowed them to handcuff Mr. Penner.
The Standard of Review for the Hearing Officer’s findings of credibility by the Commission
[16] The Commission’s own view of its duties in considering credibility findings of the Hearing Officer has been expressed as follows:
Our role or function in such matters is not to second guess the decision of the Adjudicator. In certain limited cases, it would be open to us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the Adjudicator, as to [whether] the credibility of witnesses, cannot be reasonably accepted.
(Williams v. Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS) at p. 1058
[17] The above passage in Williams was cited with approval in Armstrong v. Peel (Regional Municipality) Police Services, [2003] O.J. No. 3437 (Div. Ct.)). O’Driscoll J. is reported at para. 20:
Other issues raised concern the Hearing Officer’s assessment of credibility and treatment of the evidence. On such matters, it is a well-established principle that an appellant authority should only intervene if the Hearing Officer has made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence or drawn erroneous conclusions from it.
Matters of credibility and finding of fact are within the Hearing Officer’s domain. Only in exceptional cases, where the reasoning is self-evidently wrong, contain clear error or cannot reasonably be accepted, will the Commission interfere with conclusions.
The standard of review of the Commission’s decision at the Divisional Court
[18] This standard of review was extensively considered by the Divisional Court in Armstrong v. Peel, above, at para. 26. O’Driscoll J. quoted extensively from the judgment of McLachlin C.J.C., in Dr. Q. v. College of Physicians and Surgeons of B.C., 2003 SCC 19, [2003] 1 S.C.R. 226. In Dr. Q, at para. 26, McLachlin C.J.C. described the pragmatic and functional approach that determines the standard of review. That approach considers four contextual factors – the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question – law, fact, or mixed law and fact. The factors may overlap.
[19] Of particular interest to the matter before us are paragraphs [38] and [39] of Dr. Q:
[38] 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.
[39] 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). [Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247]
[20] The Divisional Court, in Armstrong v. Peel, above, concluded the appropriate standard of review to be applied to the decision of the Commission was one of reasonableness simpliciter. We see no reason to come to a different conclusion in the matter before us and conclude the standard of review by this Court of the Commission’s decision is one of reasonableness simpliciter.
(a) Did the Commission err in law by ignoring the findings of fact made by the Hearing Officer and, in some instances, by substituting its own findings of fact for those of the Hearing Officer?
[21] The Commission is reported at p. 4 of its reasons, as follows:
Wayne Penner denied making any comments during Constable Parker’s testimony. His testimony was supported by his wife. All of the remaining witnesses agreed that Mr. Penner was ‘chirping’ during Constable Parker’s evidence. There were differences about how many times this occurred, how loud the remarks were or whether or not he used profanity.
Mr. Penner asserted that he had been told by the Justice of the Peace that he could stay in the Court room. This was supported by Mrs. Penner. This was not reflected in the transcript of the court proceedings. This, along with the absence of any recording of Mr. Penner’s ‘chirping’ raised questions about the sensitivity and accuracy of the recording devices in the courtroom.
[22] These two paragraphs ignore findings of fact made by the Hearing Officer. At p. 3 et seq. of his reasons, the Hearing Officer found that Mr. Penner’s evidence caused him great discomfort in terms of its honesty. On the following page 4, the Hearing Officer gives three examples of where he found Mr. Penner’s evidence to be untrue. This included Mr. Penner’s statement that the Justice of the Peace had said, “This gentleman can stay”. The Hearing Officer found this to be untrue.
[23] Mr. Penner had denied that he had done anything except laugh about a question put to Constable Parker by Mrs. Penner. The Hearing Officer found it absolutely clear that Mr. Penner had been making remarks in a voice loud enough to be heard by the prosecutor, the Court Security Officer, and others in the courtroom. He found Mr. Penner’s evidence on this point to be untrue.
[24] Mr. Penner testified under oath that, “I absolutely disagree that I was making comments while my wife was involved in defending herself”. The Hearing Officer found this statement to be untrue.
[25] The Hearing Officer concluded his analysis of Mr. Penner’s testimony by saying, “I have had to reject considerable portions of his testimony”. Implicit in the Hearing Officer’s findings of credibility was a conclusion that where Mr. Penner’s evidence was in conflict with that of other witnesses, the evidence of those other witnesses was to be preferred.
[26] Although the Commission recited the Hearing Officer’s findings that large portions of Mr. and Mrs. Penner’s evidence were untrue, overstated and lacking in forthrightness and candour, at p. 6 of its decision, no reference to this is made in the reasons for its decision beginning on p. 9 of the decision. On p. 15 of its decision, the Commission notes that, “the official transcript of the proceeding just prior to his arrest does not disclose any profanity or clear and obvious threat of the nature that would override the Justice of the Peace’s authority to control his courtroom”. This statement ignores the finding of the Hearing Officer that the absence of specific words on the electronic record did not cause him to doubt the fact that things were said that were not recorded. These comments by the Commission also ignore the finding of the Hearing Officer on p. 8 of his reasons where he is reported:
…It appears from the evidence of a number of witnesses, as well as from the audio tape, that Mr. PENNER did not desist from this conduct until such time as Constable PARKER arrested him. In fact, as I have already stated, Mr. PENNER’S conduct appeared to be escalating, not subsiding.
[27] It is helpful to recall the Hearing Officer’s findings of fact, including:
▪ During Mrs. Penner’s evidence, Mr. Penner constantly made comments, uttered profanity, and disturbed the conduct of the Crown’s case. ▪ At no time did the Justice of the Peace say to Mr. Penner or to anyone else, “This gentleman can stay”. ▪ The absence of a recording of Mr. Penner’s remarks did not cause the Hearing Officer to doubt that the comments were made. ▪ Mr. Penner did not stop interrupting the proceedings until Officer Parker arrested him. ▪ Mr. Penner’s conduct was escalating when Officer Parker arrested him. ▪ Other than to tell Mr. Penner not to interrupt, the Justice of the Peace took no steps to control his conduct.
[28] These were findings the Hearing Officer was entitled to make on the evidence. We find no manifest error, no ignoring of conclusive or relative evidence, nor any indication he misunderstood the evidence or drew erroneous conclusions from it. There was an ample evidentiary foundation for his findings of fact.
[29] We conclude, therefore, that any of the Commission’s findings of fact, which tend to limit or cast doubt upon the Hearing Officer’s findings, are unreasonable and cannot stand. As the Commission itself said in Williams, above, “Our role or function in such matters is not to second guess the decision of the Adjudicator”.
(b) Did the Commission err in law by concluding the Hearing Officer was required to rule on whether a Justice of the Peace’s power to cite for contempt in the face of the court ousted the obligation of a police officer to arrest someone in court committing a criminal offence?
[30] In the course of his reasons, the Hearing Officer made an extensive analysis of the jurisdiction of the Justice of the Peace to control conduct in his courtroom contrasted with the jurisdiction of a police officer to arrest someone who, on reasonable and probable grounds, was committing a criminal offence. The Hearing Officer asked himself the same question on three occasions, expressed in general terms as follows – If a Justice of the Peace fails, for whatever reason, to maintain order in the courtroom, does a police officer who witnesses a criminal offence being committed within the courtroom remain powerless to take such actions as would be appropriate if the Justice of the Peace was not present?
[31] At the conclusion of his analysis, the Hearing Officer decided he was not required to answer the question he posed to himself in order to adjudicate upon the alleged misconduct of the officers.
[32] The Hearing Officer’s reasons for so concluding are found at p. 14 of his decision:
…When attempting to determine if Mr. Penner’s arrest was not authorized in law, and when applying the generally accepted guidelines in police discipline matters, insofar as the burden of proof resting upon the Prosecution, it necessarily follows that one of the points that would need to be proven would be that the arrest was not authorized by statute.
The evidence before me does not illustrate in any clear and cogent way that Mr. Penner’s arrest was not authorized by statute. I am left unconvinced that a police officer’s powers of arrest are parked at the courtroom door when court is in session.
Given that there is nothing to indicate to me that the arrest was unlawful, and further, given the fact that I have been unable to locate any authoritative clarification of the issue, I must find in favour of the officers, and treat the arrest as though it’s authorized in law.
[33] The Commission found, “This failure to address and determine the applicable law” represented a manifest error. The Commission went on to say that it was the role of the Hearing Officer to conduct the necessary analysis and interpretation to determine what the law provides so that it may be applied to the facts of a particular case. Following an analysis of the various powers of a Justice of the Peace and of a police officer, the Commission made the following statement at page 13 of its reasons:
However, in the middle of an ongoing court proceeding, absent either a clear and present threat or direction by the Court, we believe that such authority is superseded by the court’s power to deal with disruptive behaviour falling under the broad definition of contempt.
[34] With respect, we disagree and find this conclusion of the Commission to be an error in law and therefore unreasonable. In our view, the two powers or jurisdictions may co-exist until such time as circumstances require that one or the other be exercised. No contest ever arose. The Hearing Officer was correct in law when he found he did not need to decide which jurisdiction or power was paramount because the Justice of the Peace took no action. Only if what the officer did was in conflict with some action on the part of the Justice of the Peace to control Mr. Penner would the need arise to resolve the concurrent powers. Were it otherwise, the officer would be unable to respond to any criminal activity in the courtroom whether surreptitious or obvious unless the Justice of the Peace so directed. This conclusion, with respect, defies common sense. As the Hearing Officer himself said, at p. 13 of his reasons:
…Surely, the fact that a man was seen and heard making uncontrolled outbursts while court was in session, when coupled with the fact that the Prosecutor had asked that he be silenced or removed, and further, that the court security officer had directed that the man either remain quiet or he would be removed, when taken in totality, would indicate that somebody should do something to ensure that appropriate decorum was reestablished in the courtroom.
The reasonable person would have an expectation that on-duty police officers who were present in the courtroom would be duty bound to take some constructive action in this regard. Inaction by the Justice of the Peace surely cannot eliminate a police officer’s powers to intervene in some substantive fashion.
[35] The Hearing Officer based his decision not to rule on the alleged conflict between the Justice of the Peace’s powers and the police officer’s powers by applying an evidentiary analysis to the question. He resolved it on the basis of the burden of proof in the disciplinary proceeding. We might not have come to the same conclusion. Nevertheless, we do agree that he arrived at the right answer. It is the conclusion which counts, rather than the reasons for the conclusion.
[36] The appeal is allowed, the decision of the Commission is set aside and the decision of the Hearing Officer is restored.
[37] If the parties are unable to agree on costs, Mr. Clewley shall by January 7th, 2008 make written submissions not exceeding 3 pages plus a costs outline. Mr. Penner shall make written submissions not exceeding 3 pages by January 14, 2008.
CARNWATH J.
KITELEY J.
MURRAY J.
DATE: