CITATION: Ferry v. Toronto Police Services, 2019 ONSC 1328
DIVISIONAL COURT FILE NO.: 01/17
DATE: 2019/03/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Marrocco ACJSC, Sachs and M. Edwards JJ.
BETWEEN:
Sergeant Michael Ferry
Applicant
– and –
Toronto Police Service and Ryan Mitchell and Office of the Independent Police Review Director and Ontario Civilian Police Commission
Respondents
Joanne Mulcahy, for the Applicant
Alexandra Ciobotaru, for the Toronto Police Service
Miriam Saksznajder and Pamela Stephenson Welch, for the Office of the Independent Police Review Director
Trevor Guy and Gun Koleoglu, for the Ontario Civilian Police Commission
HEARD at Toronto: February 11, 2019
H. sachs j.
Overview
[1] In January of 2015, the Appellant, a police officer, was found guilty of misconduct under the Police Services Act, R.S.O. 1990, c. P.15 in relation to the arrest of the Respondent, Ryan Mitchell, and the officer’s use of unnecessary force during that arrest. The incident in question took place on June 27, 2010 during the G20 summit in Toronto.
[2] The hearing was held over 7 days and, after receiving written submissions, the Hearing Officer imposed a penalty of demotion to the rank of Police Constable (First Class) for a period of two months.
[3] The Applicant appealed both the findings of misconduct and the penalty to the Ontario Civilian Police Commission (the “Commission”). The Commission upheld the findings of misconduct and varied the penalty from a two month demotion to a one month demotion.
[4] On this application the Applicant seeks to judicially review the Commission’s decision. For the reasons that follow, I would dismiss the application.
Factual Background
[5] On June 27, 2010, the final day of the G20 summit, the Applicant was on duty and part of a team tasked with safeguarding and patrolling the area of St. Thomas Street and Bloor Street in Toronto. Ten to twelve people had been arrested at that site.
[6] Mr. Mitchell, a civilian, arrived at the scene and was ultimately arrested by Sergeant Ferry for breach of the peace. Essentially, the Hearing Officer heard two different versions of the events leading to Mr. Mitchell’s arrest.
[7] Sergeant Ferry’s version was that Mr. Mitchell was disruptive in regards to the arresting process. He was warned multiple times not to approach the people under arrest or to communicate with them. He was also asked to leave the area on several occasion. Finally, after saying “this is not a police state…we don’t have to go”, and calling Sergeant Ferry a “fucking pig”, Mr. Mitchell began walking to the southwest corner of Bloor and St. Thomas. He then turned back to Sergeant Ferry and said “if we take Yorkville it will be expensive.” Sergeant Ferry formed the grounds that Mr. Mitchell was breaching the peace and made the decision to arrest him. He attempted to do so by grabbing Mr. Mitchell’s right shoulder. Mr. Mitchell began to run and Sergeant Ferry caught up to him and took him to the ground to effect an arrest. Mr. Mitchell actively resisted arrest and bit or tried to bite Sergeant Ferry. In order to control Mr. Mitchell, Sergeant Ferry put him a headlock. After a struggle, Mr. Mitchell was arrested, charged with breach of the peace and detained for 8 hours at a prisoner processing centre that had been set up during the G20. Mr. Mitchell was never charged with any criminal offences.
[8] Mr. Mitchell denied that he had ever tried to “rile up” arrestees and he denied that he ever swore at the police. According to Mr. Mitchell, Sergeant Ferry ordered him to go to the north side of Bloor Street, which he could not do directly because of construction barriers on Bloor Street. Thus, he complied with Sergeant Ferry’s direction by walking west on the south side of Bloor Street. Sergeant Ferry ordered him to get out of the area entirely or face arrest for breach of the peace. Mr. Mitchell responded with a dismissive wave of his hand and said “get off it” as he continued to walk west. Sergeant Ferry said “that’s breach of the peace” and told him to get down on the ground. Mr. Mitchell started moving to his knees when Sergeant Ferry forced him to the ground where he was put face down on a concrete sidewalk. He was held in a chokehold by Sergeant Ferry while another officer had both his knees on his back. He was handcuffed to the rear.
[9] The Hearing Officer accepted Mr. Mitchell’s version of the events surrounding his arrest. As a result he found that Sergeant Ferry unlawfully arrested Mr. Mitchell and that his actions in holding Mr. Mitchell in a chokehold during his arrest when Mr. Mitchell was not resisting constituted excessive use of force.
[10] As already mentioned, after finding Sergeant Ferry guilty of misconduct the Hearing Officer imposed a penalty of two months demotion. Sergeant Ferry appealed the Hearing Officer’s decisions to the Commission.
The Commission’s Decision
[11] Broadly speaking, the basis for the Applicant’s appeal to the Commission was very similar to the basis for his application for judicial review before us. Thus, I will discuss the Commission’s decision in more detail when I deal with the Applicant’s arguments on this application.
[12] The Commission dismissed the Applicant’s appeal of the Hearing Officer’s findings of misconduct, but varied the penalty imposed by the Hearing Officer on the basis that the Hearing Officer erred in considering Sergeant Ferry’s untruthfulness during the hearing as an aggravating factor when it came to penalty. As a result the Commission reduced the penalty imposed from two months to one month.
Issues Raised
[13] The Applicant submits that the Commission’s decision discloses the following errors:
(a) The Commission erred in its application of the standard of review.
(b) The Commission erred in failing to allow the appeal on the basis that the Hearing Officer used impermissible reasoning when he found that the police officers (including Sergeant Ferry) had an interest in the proceedings that negatively impacted on their credibility.
(c) The Commission erred in failing to allow the appeal on the basis that the Hearing Officer applied a different level of scrutiny to the evidence of the officers than he did to the evidence of the complainant.
(d) The Commission erred in failing to allow the appeal on the basis of the Hearing Officer’s alleged failure to consider relevant evidence.
(e) The Commission erred in failing to allow the appeal on the basis that the Hearing Officer erred when he found that Sergeant Ferry did not have reasonable and probable grounds to arrest Mr. Mitchell.
(f) The Commission erred in failing to allow the appeal on the basis that the Hearing Officer erred when he found that Sergeant Ferry used excessive force when he arrested Mr. Mitchell.
(g) The Commission erred in not reducing the penalty further because of the fact that the Hearing Officer penalized Sergeant Ferry for matters beyond his control.
Standard of Review
[14] The parties agree that the appropriate standard of review for this Court to apply to the Commission’s decision is reasonableness (Ottawa Police Services v. Diafwila, 2016 ONCA 627, at para. 52).
[15] This Court recently described its role when judicially reviewing a decision of the Commission as follows:
[I]t is not the role of the Divisional Court to review the decision of the Hearing Officer. It is not our role to determine if the Hearing Officer was correct, or even reasonable. [This Court’s] sole focus is to determine whether the Commission in its review of the Hearing Officer acted reasonably. (Husseini v. York Regional Police Service, 2018 ONSC 283 (Div. Ct.), at para. 31).
Alleged Error Regarding the Application of the Standard of Review
[16] The parties agree that the standard of review for the Commission to apply to the decision of the Hearing Officer is reasonableness for questions of fact and correctness for questions of law (OPS v. Diafwila).
[17] With respect to the Hearing Officer’s findings of credibility, the parties also agree with the Commission’s statement at para. 51 of its decision, as follows:
As stated in Blowes-Aybar, supra:
Unlike the trier of fact, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to the Hearing Officer’s findings, unless an examination of the record shows that the Hearing Officer’s conclusions cannot be reasonably supported by the evidence.
[18] The Applicant submits that while the Commission articulated the correct standard of review, it failed to apply that standard. According to the Applicant, this is apparent from the fact that the Commission’s decision failed to deal with all of the specific arguments that the Applicant made before it concerning the Hearing Officer’s credibility analysis. At para. 52 of its decision the Commission states:
Bearing this in mind, we do not intend to review in this decision every criticism of the Hearing Officer’s assessment of credibility, although some should be mentioned.
[19] According to the Applicant, it was an error for the Commission not to have reviewed every criticism of the Hearing Officer’s assessment of credibility and that its failure to do so constituted an unreasonably restrictive approach to its mandate. In support of this submission the Applicant referred us to the decision of the Divisional Court in McCormick v. Greater Sudbury Police Service, 2010 ONSC 270.
[20] In McCormick v. Greater Sudbury Police Service, the Commission had described its mandate when it came to reviewing the factual findings of the Hearing Officer as follows: “The question to be asked…is, are the conclusions of the adjudicator void of evidentiary foundation?” The Divisional Court found that this was not the same thing as asking whether the conclusions were reasonable as reasonableness is concerned not only with the “sufficiency of evidentiary support but also with whether the reasons are defensible or tenable considering logic, probabilities and improbabilities, common sense and experience..” (para. 87). There is no suggestion in the case at bar that the Commission adopted a similarly overly restricted view of its mandate.
[21] The Applicant’s argument that para. 52 of the decision means that the Commission saw no need to consider all of the criticisms that he raised concerning the Hearing Officer’s credibility analysis is not a fair reading of the Commission’s decision. First, in the impugned paragraph the Commission states that it is choosing not to review each of the Applicant’s criticisms “in this decision” (emphasis added). Read as a whole, it is clear that the Commission did consider all of the Applicant’s criticisms, but chose not to address each one of them in its decision. Rather, at para. 53, it decided to highlight some of the major criticisms, criticisms that were similarly emphasized by the Applicant in his argument on the judicial review, namely: the Hearing Officer’s characterization of Mr. Mitchell and his companions as graduate students that he considered to be “thoughtful, careful people with an intellectual bent”; the Hearing Officer’s failure to comment upon the items found in Mr. Mitchell’s backpack after his arrest; and the Hearing Officer’s failure to comment upon Mr. Mitchell’s behaviour and demeanour on a video after his arrest.
[22] As the Supreme Court of Canada stated in Construction Labour Relations Assn. (Alberta) v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, at para. 3, “[A]dministrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons.” Therefore the Commission’s failure to comment upon every criticism raised by the Applicant in its reasons does not equate to failure to apply the correct standard of review. This is not what a reasonableness review requires.
Alleged Error re Use of Impermissible Reasoning
[23] In his assessment of credibility, the Hearing Officer set out and considered several factors. One of them was whether the witness had an interest in the outcome of the case. After finding that the prosecution witnesses did not have an interest in the outcome of the case, the Hearing Officer stated that, in contrast, Sergeant Ferry did have a great deal to lose and therefore would “have a significant interest to exaggerate or even fabricate to avoid evidence.”
[24] According to the Applicant, the law is clear that reasoning that a subject officer will lie to avoid liability is impermissible as it displaces the presumption of innocence and the burden of proof. The Applicant relies on the decision of the Supreme Court of Canada in R. v. Laboucan, 2010 SCC 12, [2010] 1 SCR 397 as support for this submission.
[25] The Commission considered the Applicant’s submissions and correctly found that “[t]he Court, in Laboucan, refused to adopt an absolute prohibition on a trier of fact considering an accused’s motive to lie in assessing his or her credibility as a witness”. Rather, the reasons must be read in their entirety, in the context of the hearing, and the reviewing court must decide whether “they reveal that the trial judge properly assessed and weighed the evidence of all witnesses, including the accused, without undermining the presumption of innocence or the burden of proof.” (Laboucan, at para. 23).
[26] The Commission then went on to review the reasons of the Hearing Officer and found they were satisfied that “his overall assessment of credibility was reasonable” and that there was no basis for them to intervene. In my view, this conclusion was reasonable. As the Commission noted, the Hearing Officer’s reference to the so-called “motive to lie” was but one of many factors that led the Hearing Officer to disbelieve Sergeant Ferry’s evidence. Further, the suggestion that the Hearing Officer’s reasons disclosed an undermining of the presumption of innocence or a reversal of the burden of proof is belied by the fact that the Hearing Officer acquitted Sergeant Ferry of the misconduct charges in relation to his arrest of another complainant.
Alleged Application of a Different Level of Scrutiny and the Failure to Consider Relevant Evidence
[27] In arguing these two grounds, the Applicant selectively highlighted pieces of evidence and submitted that the Commission acted unreasonably in failing to find that these pieces of evidence demonstrated either that the Hearing Officer applied a higher level of scrutiny to the evidence of the officers than he did to the evidence of the civilian witnesses or that the Hearing Officer ignored relevant evidence.
[28] The Applicant also argued that the Commission, who heard the same submissions, failed to deal with them. I disagree. The Commission addressed these arguments at paras. 53 to 57 of its decision:
Sgt. Ferry questioned the Hearing Officer’s characterization of Mitchell and Horwatt as being graduate students that he considered to be “thoughtful, careful people, with an intellectual bent.” He questioned why the Hearing Officer did not comment on the items found in Mitchell’s (or Walter’s) backpacks after the arrest, including a mask and swimming goggles. He also raised, as an example of the unfair scrutiny the Hearing Officer applied to the prosecution witnesses versus all of the officers who testified, the failure of the Hearing Officer to comment on Mitchell’s behaviour and demeanour on camera after his arrest. Mitchell was shown on the video (Exhibit 6.2), according to Sgt. Ferry, “defiantly winking and blowing a kiss to the camera.” As has been previously stated, a decision-writer need not refer to every piece of evidence in a proceeding in a Decision. The Hearing Officer was obviously aware of the video and we cannot say that his failure to include reference to it somehow adversely affected his finding of credibility.
The Hearing Officer did, however, as he did with the evidence of Sgt. Rose, conduct an analysis of the credibility of Sgt. Ferry. At paragraph 130 of his decision, the Hearing Officer commented: “Ferry’s demeanour did not inspire confidence in his credibility. He was combative, evasive, he failed to answer questions, and he made speeches.”
Sgt. Ferry, who claimed that Mitchell was biting him during the arrest, changed his statement later that Mitchell tried to bite him, and did not mention anything about the biting or Mitchell’s attempt to do so, in his interview with the Director. Officer Gough testified in his cross-examination that he “saw” Mitchell actually biting Sgt. Ferry. The Hearing Officer found that Sgt. Ferry’s statements were part of a ruse, noting that Mitchell was not charged with assaulting a police officer or resisting arrest, as someone would have expected. That conclusion was one open to him to make on his assessment of the evidence.
Reading the Hearing Officer’s entire Decision, we are satisfied that his overall assessment of credibility was reasonable and that there is no basis for us to intervene. The Hearing Officer’s reasons may not have been perfect, but that is not a standard by which they are to be measured. As stated in R. v. R.E.M., [2008 SCC 51], 2008 SCC 51, [2008] 3 S.C.R. 3, [at para. 49]:
Assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.
- As was the case with Sgt. Rose, it is worthwhile noting that the Hearing Officer’s analysis of Sgt. Ferry’s evidence, and his comments about credibility notwithstanding, did lead him to acquit Sgt. Ferry of the misconduct charges arising from the arrest of Walker.
[29] In essence, the Commission found that the Hearing Officer did not ignore relevant pieces of evidence; he just chose not to refer to them in his decision (as he was entitled to do). The Commission also found that, read as a whole, the Hearing Officer’s failure to refer to these pieces of evidence did not adversely affect his assessment of credibility, which was overall reasonable. The Commission dismissed the argument that evidence of the defence witnesses was subjected to a higher level of scrutiny than that of the prosecution witnesses, finding that the conclusions of the Hearing Officer to prefer the evidence of some witnesses over others were conclusions that were reasonably available on the evidence.
[30] The Commission’s findings in this regard satisfy the standard of reasonableness. Its reasons disclose “the existence of justification, transparency and intelligibility” in the decision-making process and the conclusions it reached fell well within the “range of possible, acceptable outcomes which are defensible in respect of the facts and the law”: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
[31] The Commission’s reasons also disclose a sensitivity to the fact that it was not its job, nor is it the place of this Court, to retry the case before the Hearing Officer by reweighing the evidence.
Alleged Errors re Reasonable and Probable Grounds to Arrest and Excessive Use of Force
[32] The Applicant’s arguments on these points turn on the fact that the Applicant disagrees with the findings of fact made by the Hearing Officer. As the Commission reasonably found, the findings of fact that the Hearing Officer made were clearly available to him on the evidence tendered at the hearing. Again, it is not our function (nor was it the function of the Commission) to retry the case and substitute our findings of fact for those of the Hearing Officer.
Alleged Error in Penalizing the Applicant for Matters Beyond His Control
[33] One of the aggravating factors that the Hearing Officer considered was “[t]he seriousness of the misconduct and related Charter violations including the continuation of the arrest and the length of Mr. Mitchell’s unlawful detention (he was detained at the scene, and then for 8 hours at the Prisoner Processing Centre on Eastern Avenue).”
[34] According to the Applicant, he never attended at the Prisoner Processing Centre and the systemic problems that the Toronto Police Service had at that centre were matters beyond his control. Therefore, he should not have been penalized for what happened to the Applicant at that centre.
[35] The Commission dealt with this argument at para. 73 of its decision:
Finally, Sgt. Ferry submitted that he was penalized for factors beyond his control and in particular, the amount of time Mitchell was held in custody before he was released without being charged. Sgt. Ferry’s arrest of Mitchell triggered his being held in custody. We see no reason why Sgt. Ferry should not be held accountable for the time Mitchell remained in custody. In any event, the ultimate penalty, as modified herein, is reasonable and not unduly harsh.
[36] There is no merit to the Applicant’s submission that the Commission’s treatment of this issue was unreasonable. Mr. Mitchell’s detention was a direct result of his arrest. While the Applicant might be able to argue that he ought not to be penalized for the conditions that prevailed at the Prisoner Processing Centre, the fact that Mr. Mitchell was detained at that centre for 8 hours is a fact that can reasonably be considered in assessing the seriousness of the Applicant’s conduct.
Conclusion
[37] For these reasons the application for judicial review is dismissed. Since no one is requesting costs, there will be no order as to costs.
H. Sachs J.
I agree _______________________________
Marrocco ACJSC
I agree _______________________________
M. Edwards
Released: March , 2019
CITATION: Ferry v. Toronto Police Services, 2019 ONSC 1328
DIVISIONAL COURT FILE NO.: 01/17
DATE: 2019/03/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Marrocco ACJSC, Sachs and M. Edwards JJ.
BETWEEN:
Sergeant Michael Ferry
Applicant
– and –
Toronto Police Service and Ryan Mitchell and Office of the Independent Police Review Director and Ontario Civilian Police Commission
Respondents
REASONS FOR JUDGMENT
Released: March 14, 2019