McCormick v. Greater Sudbury Police Service, 2010 ONSC 270

• Judge: J. Wilson, Hill and Lax, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 09, 2009
• Jurisdiction: Ontario
• Citations: 2010 ONSC 270;(2010), 259 O.A.C. 226 (DC)

McCormick v. Police Service (2010), 259 O.A.C. 226 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MR.011

Staff Sergeant John McCormick (appellant) v. Greater Sudbury Police Service (respondent)

(125/09; 2010 ONSC 270)

Indexed As: McCormick v. Greater Sudbury Police Service

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, Hill and Lax, JJ.

March 1, 2010.

Summary:

Staff Sergeant McCormick of the Greater Sudbury Police Service faced charges of unlawful or unnecessary exercise of authority and neglect of duty contrary to the Police Services Act. The charges related to the 2001 arrest of Giroux. The Hearing Officer found McCormick guilty of the charges and imposed a penalty of demotion to first class constable for one year. The Ontario Civilian Commission on Police Services dismissed McCormick's appeal from the liability and penalty decisions of the Hearing Officer. McCormick appealed from the Commission's decision.

The Ontario Divisional Court held that in light of identified legal errors, the appeal respecting the unlawful or unnecessary exercise of authority count was allowed. The misconduct finding was set aside and a new hearing was ordered before a differently constituted tribunal. The court dismissed the appeal respecting the neglect of duty count. The Hearing Officer's decision as to liability on one of the two particulars provided for that charge was reasonable and unaffected by legal error. However, because penalty was imposed on the basis of both particulars having been proven for that charge, the appeal against penalty was allowed, the penalty was set aside and the matter of the fit and appropriate penalty, restricted to the proven particular, was remitted to a newly assigned Hearing Officer. J. Wilson, J., concurred with the result, but was in partial dissent with respect to the issue of the potential application of the principles of R. v. D.W. in the context of an administrative disciplinary proceeding.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See second, third and fourth Police - Topic 4191 ].

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions (incl. sufficiency of reasons) - [See second and fourth Police - Topic 4191 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - Staff Sergeant McCormick was charged with unlawful or unnecessary exercise of authority related to the arrest of Giroux - Const. Hart (the arresting officer) was the only witness to say that McCormick had kicked Giroux in the face - Giroux denied receiving a kick to the face and stated that it was the arresting officer who banged his face into the pavement - The Hearing Officer refused the defence request to allow Giroux to be shown a photo of Const. Hart in re-examination - The Hearing Officer found McCormick guilty of the charge - The Ontario Civilian Commission on Police Services dismissed McCormick's appeal - On appeal from the Commission's decision, McCormick alleged a denial of natural justice involving the failure of the prosecution to disclose Hart's photo - The Ontario Divisional Court held that the prosecution complied with its disclosure obligations - The defence was at liberty at any time to request a photo of Hart - When the request was ultimately made, the prosecution was prepared to surrender the 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 Hart - See paragraphs 75 to 76.

Evidence - Topic 2290

Special modes of proof - Judicial notice - Particular matters - Human body - Effect of alcohol and drugs - A Hearing Officer found Staff Sergeant McCormick guilty of a charge of unlawful or unnecessary exercise of authority related to the January 14, 2001 arrest of Giroux - The Ontario Civilian Commission on Police Services dismissed McCormick's appeal - McCormick appealed - McCormick argued that, in diminishing the credibility and reliability of 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 those substances on Giroux - The Ontario Divisional Court stated that assuming the Hearing Officer could reasonably find that Giroux consumed alcohol on January 14, 2001, it could not reasonably be found that Giroux had consumed percocets on that date given that the unsworn information of Giroux's former girlfriend was that he "may" have been on them, and given the absence of direct questioning of Giroux as to whether he had taken percocets on that date - In any event, the Hearing Officer erred in law in purporting to take judicial notice that the combined effects of the consumption of alcohol and percocets 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 - See paragraphs 120 to 133.

Police - Topic 4161

Internal organization - Discipline - Appeals and judicial review - General (incl. standard of review) - A Hearing Officer found Staff Sergeant McCormick guilty of charges of unlawful or unnecessary exercise of authority and neglect of duty - The Ontario Civilian Commission on Police Services dismissed McCormick's appeal - McCormick appealed, arguing that the Commission erred in the review test it applied to the Hearing Officer's decision - McCormick submitted that by limiting itself to a "void of evidentiary foundation" assessment, which was 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 - The Ontario Divisional Court stated that "The 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 [Police Services Act]. 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" - See paragraphs 81 to 89.

Police - Topic 4173

Internal organization - Discipline - Appeals and judicial review - To court - Scope or standard of review - [See Police - Topic 4161 ].

Police - Topic 4187

Internal organization - Discipline - Hearings - Requirements of natural justice or principles of fundamental justice - [See Administrative Law - Topic 2617 and first, second and fourth Police - Topic 4191 ].

Police - Topic 4190

Internal organization - Discipline - Hearings - Evidence - Of identification - Staff Sergeant McCormick was charged with unlawful or unnecessary exercise of authority related to the arrest of Giroux - Const. Hart (the arresting officer) was the only witness to say that McCormick had kicked Giroux in the face - Giroux denied receiving a kick to the face and stated that it was the arresting officer who banged his face into the pavement - The Hearing Officer denied McCormick the opportunity to re-examine Giroux using a photo of Const. Hart on the basis, inter alia, that the showing of a single photo to a witness as an identification process would elicit inadmissible evidence - The Ontario Divisional Court held that the Hearing Officer erred in law - The court stated that "Giroux 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" - See paragraphs 78 to 79.

Police - Topic 4191

Internal organization - Discipline - Hearings - Evidence - Witnesses - Staff Sergeant McCormick was charged with unlawful or unnecessary exercise of authority related to the arrest of Giroux - Const. Hart (the arresting officer) was the only witness to say that McCormick had kicked Giroux in the face - Giroux denied receiving a kick to the face and stated that it was the arresting officer who banged his face into the pavement - The Hearing Officer denied McCormick the opportunity to re-examine Giroux using a photo of Const. Hart on the basis, inter alia, that 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 - The Ontario Divisional Court held that the Hearing Officer erred in law - Before Giroux's testimony was finished, the Hearing Officer concluded that the witness was sufficiently unreliable that any positive identification of Hart as the assailant would be irrelevant - The court stated that "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 [McCormick]" - See paragraph 80.

Police - Topic 4191

Internal organization - Discipline - Hearings - Evidence - Witnesses - A Hearing Officer found Staff Sergeant McCormick guilty of a charge of unlawful or unnecessary exercise of authority related to the arrest of Giroux - The Ontario Civilian Commission on Police Services dismissed McCormick's appeal - McCormick appealed - McCormick argued that the Hearing Officer's reasons ignored or misconstrued significant evidence relating to the determination of the credibility of Const. Hart (the officer who arrested Giroux) - Cst. Hart was the only witness to say that McCormick had kicked Giroux in the face - Giroux had denied receiving a kick to the face and stated that it was the arresting officer who banged his face into the pavement - The Ontario Divisional Court held that the Hearing Officer's reasons accepting the credibility of Const. Hart's account were legally inadequate - The Hearing Officer misapprehended the evidence by eliminating any consideration of motive to mislead on the part of Hart - Further, the Hearing Officer failed to seize the substance of the matter in the sense of undertaking an analysis responsive to the live issues and key arguments of the parties - The court stated that "The 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" - See paragraphs 142 to 151.

Police - Topic 4191

Internal organization - Discipline - Hearings - Evidence - Witnesses - A Hearing Officer found Staff Sergeant McCormick guilty of a charge of unlawful or unnecessary exercise of authority related to the arrest of Giroux - The Ontario Civilian Commission on Police Services dismissed McCormick's appeal - McCormick appealed - McCormick argued that the Hearing Officer's reasons were entirely inadequate respecting acceptance of Const. Train's evidence that McCormick had slapped Giroux - The Ontario Divisional Court stated that "Whether 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. In 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" - See paragraphs 152 to 157.

Police - Topic 4191

Internal organization - Discipline - Hearings - Evidence - Witnesses - A Hearing Officer found Staff Sergeant McCormick guilty of charges of unlawful or unnecessary exercise of authority and neglect of duty - The Ontario Civilian Commission on Police Services dismissed McCormick's appeal - McCormick appealed - The Ontario Divisional Court held that the absence of any effective analysis of McCormick's credibility constituted an error of law - The court stated that "The 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' ... The 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" - See paragraphs 158 to 170.

Police - Topic 4195

Internal organization - Discipline - Hearings - Burden of proof - A Hearing Officer found Staff Sergeant McCormick guilty of charges of unlawful or unnecessary exercise of authority and neglect of duty contrary to the Police Services Act - The Ontario Civilian Commission on Police Services dismissed McCormick's appeal - McCormick appealed, alleging a misdirection by the Hearing Officer in the application of the correct standard of proof to the assessment of witness credibility - With reference to R. v. D.W. (S.C.C.), McCormick's counsel 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" - The respondent submitted that the reasoning in D.W. had no application to administrative law cases - The Ontario Divisional Court discussed the issue - The court stated that "Given 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'" - See paragraphs 90 to 108.

Cases Noticed:

Ontario Provincial Police v. Favretto (2004), 191 O.A.C. 3; 72 O.R.(3d) 681 (C.A.), leave to appeal refused (2005), 343 N.R. 192; 207 O.A.C. 389 (S.C.C.), refd to. [para. 6].

Wilson v. Ontario Provincial Police Service (2008), 242 O.A.C. 82 (Div. Ct.), refd to. [para. 6].

Blakely v. Quinte West Police Service - see Blakely v. Parker et al.

Blakely v. Parker et al. (2007), 228 O.A.C. 149 (Div. Ct.), refd to. [para. 6].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 7].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 70].

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1, refd to. [para. 70].

Sheriff et al. v. Canada (Attorney General) (2006), 350 N.R. 230; 2006 FCA 139, refd to. [para. 70].

Howe v. Institute of Chartered Accountants (Ont.) (1994), 74 O.A.C. 26; 19 O.R.(3d) 483 (C.A.), refd to. [para. 70].

R. v. Moore (1984), 5 O.A.C. 51; 15 C.C.C.(3d) 541 (C.A.), leave to appeal refused [1985] 1 S.C.R. x; 58 N.R. 312; 7 O.A.C. 320, refd to. [para. 71].

R. v. Young, 2009 ONCA 891, refd to. [para. 72].

Toronto Police Service v. Kelly (2006), 209 O.A.C. 269 (Div. Ct.), refd to. [para. 73].

Ontario Provincial Police Commissioner v. MacDonald, [2009] O.J. No. 970 (C.A.), refd to. [para. 74].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 74].

Sorger et al. v. Bank of Nova Scotia et al. (1998), 109 O.A.C. 130; 39 O.R.(3d) 1 (C.A.), refd to. [para. 74].

Williams v. Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), refd to. [para. 81].

Toronto Police Service v. Blowes-Aybar (2004), 185 O.A.C. 352 (Div. Ct.), refd to. [para. 84].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193, refd to. [para. 86].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 87].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 291 D.L.R.(4th) 577, refd to. [para. 87].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 87].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355, refd to. [para. 88].

Ontario Provincial Police v. Favretto (2004), 191 O.A.C. 3; 72 O.R.(3d) 681 (C.A.), leave to appeal refused (2005), 343 N.R. 192; 207 O.A.C. 398 (S.C.C.), refd to. [para. 88].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74, consd. [para. 98].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 101].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 101].

Law Society of Upper Canada v. Neinstein (2007), 222 O.A.C. 286; 85 O.R.(3d) 446 (Div. Ct.), refd to. [para. 102].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 103].

Galassi v. Hamilton Police Service, [2005] O.A.C. Uned. 291 (Div. Ct.), refd to. [para. 104].

Canadian Civil Liberties Association et al. v. Civilian Commission on Police Services (Ont.) (2002), 165 O.A.C. 79; 61 O.R.(3d) 649 (C.A.), refd to. [para. 105].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 109].

Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353 et al. (2009), 255 O.A.C. 201 (C.A.), refd to. [para. 110].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 110].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40, refd to. [para. 111].

Clifford v. Ontario (Attorney General) et al. (2009), 256 O.A.C. 354 (C.A.), refd to. [para. 112].

Del Core v. College of Pharmacists (Ont.) (1985), 10 O.A.C. 57; 51 O.R.(2d) 1 (C.A.), refd to. [para. 112].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198, refd to. [para. 113].

R. v. Antonatos (G.), [2009] O.A.C. Uned. 636; 2009 ONCA 884, refd to. [para. 113].

R. v. Wadforth (D.) (2009), 254 O.A.C. 295; 247 C.C.C.(3d) 466; 2009 ONCA 716, refd to. [para. 114].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 115].

Gray v. Disability Support Program (Ont.) (2002), 158 O.A.C. 244; 59 O.R.(3d) 364 (C.A.), refd to. [para. 115].

Via Rail Canada Inc. v. Lemonde - see Via Rail Canada Inc. v. National Transportation Agency et al.

Via Rail Canada Inc. v. National Transportation Agency et al. (2000), 261 NR 184; 193 D.L.R.(4th) 357 (F.C.A.), refd to. [para. 115].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 115].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, refd to. [para. 116].

R. v. H.S.B., [2008] 3 S.C.R. 32; 380 N.R. 130; 260 B.C.A.C. 122; 439 W.A.C. 122; 2008 SCC 52, refd to. [para. 116].

Sagl v. Cosburn, Griffiths & Brandham Insurance Brokers Ltd. et al. (2009), 249 O.A.C. 234 (C.A.), refd to. [para. 116].

R. v. Maharaj (Y.) (2004), 187 O.A.C. 101; 71 O.R.(3d) 388; 186 C.C.C.(3d) 247 (C.A.), leave to appeal refused (2005), 334 N.R. 198; 206 O.A.C. 397 (S.C.C.), refd to. [para. 116].

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81, refd to. [para. 117].

R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271, refd to [para. 118].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 118].

R. v. J.M.H. (2009), 256 O.A.C. 246 (C.A.), refd to. [para. 118].

R. v. Lagace (G.) (2003), 178 O.A.C. 391; 181 C.C.C.(3d) 12 (C.A.), refd to. [para. 118].

R. v. Find (K.) (2001), 269 N.R. 149; 146 O.A.C. 236; 154 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 128].

R. v. Hayes (1924), 43 C.C.C. 398 (Ont. C.A.), refd to. [para. 129].

R. v. Letford (J.) (2000), 139 O.A.C. 387; 51 O.R.(3d) 737 (C.A.), refd to. [para. 129].

R. v. Ostrowski (1958), 122 C.C.C. 196 (Ont. H.C.), refd to. [para. 129].

R. v. Barstead (B.), [2000] O.T.C. Uned. 603 (Sup. Ct.), refd to. [para. 130].

R. v. Hollahan (1969), 7 C.R.N.S. 307 (N.S. Co. Ct.), refd to. [para. 130].

Pitts v. Ontario (1985), 9 O.A.C. 205; 51 O.R.(2d) 302 (Div. Ct.), refd to. [para. 163].

Hilo v. Minister of Employment and Immigration (1991), 130 N.R. 236 (F.C.A.), refd to. [para. 163].

Statutes Noticed:

Police Services Act, R.S.O. 1990, c. P-15, sect. 64(10) [para. 89].

Counsel:

Peter M. Brauti, for the appellant;

Réjean Parisé, for the respondent.

This appeal was heard on November 9, 2009, at Toronto, Ontario, before J. Wilson, Hill and Lax, JJ., of the Ontario Divisional Court. The judgment of the Divisional Court was released on March 1, 2010, including the following opinions:

Hill, J. (Lax, J., concurring) - see paragraphs 1 to 178;

J. Wilson, J., concurring with the result, dissenting in part - see paragraphs 179 to 180.