1. Prosecuting Police Services Act Cases Adjudicators & Prosecution Course November 16, 2016
Ian D. Scott
Lawyer
Suite 1900
439 University Ave
Toronto Ontario M5G 1Y8
(o)
(fax)

2. Role of Prosecutor
Present evidence before hearing officer to satisfy him/her that misconduct has been proven on clear & convincing evidentiary standard
Ensure that the evidence called is relevant to the particulars of allegation attached to the Notice of Hearing
“Relevance requires the determination of whether as a matter of human experience and logic the existence of ‘Fact A’ makes the existence of ‘Fact B’ more probable than it would have been without the existence of Fact A. Watson OCA 2009
‘Fact A – people walking around with their umbrellas up – more likely than not that it’s raining. Existence of ‘Fact A’ – umbrellas up – make the existence of Fact B – it’s raining – more probable than it would have been without the existence of ‘Fact A’
But relevance is in part human experience which means we bring to the table different concepts of what is relevant
-good example id the non discredited view that a woman’s prior sexual history is relevant to whether she consented to sexual relations in a sexual assault trial
-used to be thought that a woman who has other sexual relations was more likely to consent to sex with anyone, including an accused who says she consented
-now, in law, that logic is viewed as irrelevant
“even a prostitute has the right to say no”
- Another example – defence that drugs were planted on an accused

3. Difference Between Criminal Trials and P.S.A. Hearings
Charter
Technical issues of admissibility
Accused may or may not testify
Proof beyond reasonable doubt
P.S.A. Hearings
Few, if any, pre-hearing motions
Few objections to admissibility
Subject officer usually testifies
Clear and convincing evidence
Complainant may be a party
As a prosecutor, there should be a strong enough case presented that it cries out for an explanation
[get your pens out and scratch out ‘balance of probabilities]
Jacobs v. Ottawa Police Service 2016 ONCA345 (C.A.) standard of proof is clear and convincing evidence; somewhere between balance of probabilities and beyond a reasonable doubt
S. 15 of the Statutory Powers Procedures Act: tribunal may admit as evidence at a hearing any oral testimony and any document or thing relevant to the subject matter

4. Preparation for Hearing
Is disclosure complete?
Interview witnesses – statements –cross-x -reply
Motions
Prepare a ‘Documents Brief’
If complicated, prepare opening statement
Prepare for cross-examination of subject officer
Disclosure: prosecutor is under no obligation to fulfil every request for more material from defence – “the parties to a hearing are not entitled to use a request for disclosure to rummage around the files of an adverse party to see if a case can be made. The party must be able to articulate why the requested material is relevant and is not entitled to base a disclosure application on suspicion or speculation alone” Cardi v. Peel Regional Police OCPC annotation at s. 83(5) of the P.S.A.
Interview Witnesses – statements - cross-ex – reply
Motions - can be prehearing motions, motions for more disclosure, motions to recuse the hearing officer, adjournment motions
Documents - Importance of documents will be shown momentarily
Importance of Witness Prep Next slide, ‘Zac Attack’

5. “Zac Attack”
-with the very material witnesses, I literally sit them down and go through their entire statement. I say “I know you know what happened but I want to make sure I understand what happened”
Front Page of the Toronto Star December 6, 2006 ‘Daggers are Out for RCMP Boss’
Former RCMP Commissioner Guilano Zaccardelli was called to testify before the House of Commons public safety committee on December 6, The top Mountie changed his version of events about what he and others knew about the Maher Arar case from his previous testimony in September. This is what Zaccardelli said: he said he hadn’t prepared for questioning about what he knew on the Arar file and when he knew it, and had only expected questions on the recommendations on the way forward.

6. Examination-in-chief
Opportunity for witness to tell story
Leading questions not permitted
Permissible to have witness focus on specific issue
Documents very useful for guiding witness
May cross-examine one’s own witness
Can’t speak to witness re: evidence given
Leading questions suggest the answer anticipated by the questioner
May cross-examine one’s own witness if evidence is inconsistent with his prior statement or if displaying adversity – s. 20 Ontario Evidence Act
Next Slide Fantino on issue of a witness not speaking to others about their evidence when testifying

7. Judge at OPP hearing claims 'intimidation' Toronto Star – November 11, 2008
Do not speak to your witness until evidence complete
Toronto Star – November 11, 2008
But the real fireworks occurred after the lunch break when it appeared Fantino had been tipped that some of his earlier comments didn’t gel with what the prosecution was expecting. After the recess, Fantino looked to reverse on an earlier statement. The hearing officers immediately told him to leave the room
“It’s upsetting and it’s something I’ll have to deal with when I come to do my thing,”said the adjudicator, directing the prosecutor to move on to a new subject immediately. It’s this incident that lies at the heart of the recusal motion brought by the prosecutor on an allegation of bias. The prosecutor lost the motion, appealed to Divisional Court, lost, appealed to Ontario Court of Appeal and lost. The Commissioner then withdrew the prosecution.

8. When Opposing Counsel Cross-examines
Take verbatim notes; consider why counsel is asking those questions
Object if opposing counsel misstates prior evidence
Object if questioning unduly repetitious or irrelevant (s. 15 SPPA), or if cross “sufficient to disclose fully and fairly all matters relevant to the issues..” (ss. 23(2) SPPA

9. Re-Examination
Have a right to ask your witness questions to clarify issues that arose in cross-examination that could not be reasonably anticipated
Focus the witness: e.g. “Mr. White asked you a question about the condition of your cat. Is there anything else you would like to add?”
You’ve now completed your case for the prosecution, and it is up to the defence to present its case.

10. End of Prosecution’s Case
Now completed your case
All your witnesses called and exhibits tendered
Defence may bring a non-suit or directed verdict motion
Defence may or may not call evidence – up to prosecution to prove case
Assume defence loses the non-suit motion and assume the defence calls evidence

11. Examination-in-chief of Opposing Witness
Take verbatim Notes
Think about points you want to accept, ones that are unimportant and ones you must cross-examine on
Object to leading questions
Object to opinion questions if witness not qualified as an expert
If you object, insist on rulings to your objections
Make sure the defence does not “back door’ a successful objection
For example, defence lawyer asks the witness, “do you love dogs?” You object and hearing officer agrees with you that the issue is irrelevant; then ten minutes later, the defence lawyer askes, “what do you think of dogs?”
Opinion evidence – be aware of opinions being slipped in. For example, the questioner cannot ask a lay person (as opposed to a toxicologist) “how many beers would the complainant have to have to be impaired?” an expert witness must be qualified as an expert in his or her field in order to give an opinion

12. Cross-Examination – 1 “engine of the truth”? Paint with words
Questions should be tight, eliciting yes or no answers
If witness gives meandering answers, ensure your question was answered
Must cross-examine on evidence of opposing witness inconsistent with material elements of your case
“the real test of the truth of a story must be in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” Bates v. Durham Regional Police Services 2003
paint with words in your cross-examination
Let’s assume Brian Mulroney says “I once had some dealings with Karl Heinz-Schreiber”, don’t leave it at that
How many times? Where? When? Did money ever change hands? Was it cash? In an envelope? Did you count it in front of him? How was the sum agreed upon? Were you satisfied in the amount you were paid? How did you account for it?

13. Cross-Examination -2 “Inconsistencies”
“Catching a witness in self-contradiction is one of the staples of effective cross-examination” Riley (SCC) Dec. 15/05
Probe any inconsistencies – are signs of dishonest/unreliable witness;
What doesn’t fit in their evidence?
Confirm present testimony, block off avenues of escape, confront with prior inconsistency
Once found, drive it home
Juxtapose present evidence with prior statements. Do not overlook omissions as inconsistencies. What should have been reasonably said at the time and was omitted. Why added now? If Mike Duffy had a memo from the Senate leader stating that his expense claims are consistent with the claims of other Senators, why didn’t he produce it at the earliest opportunity?
Confirm present testimony – ensure answer is crystal clear – prove the prior statement – block off avenues of escape –
“today you are sure the car was a blue sedan – but you just agreed with me that you told your best friend a year ago it was a yellow truck – you changed your story – you agree with me that both statements cannot stand together – which story would you now like to pick?”
Next, an example of cross-examining on omissions from prior statements

14. Toronto Leasing Inquiry “The Office Romance”
Toronto Star November
An example of cross-examining on an omission from prior statements
Wanda Liczyk had agreed at the Toronto computer leasing inquiry that in the summer of 2000 Dash Domi – hairdresser turned computer leasing expert – misled her by passing off costly lease restructuring documents as mere ‘administrative reorganizations’ for her to sign.
She said she signed the documents believing his story that he was merely acting as a courier for other city officials.
But under cross-examination, Liczyk admitted that she never mentioned Domi’s words in her three extensive interviews in 2001 and 2002 with the KPMG auditors who were investigating the deal.
“You didn’t tell them anything about Mr. Domi misleading you or administrative charges”, the lawyer suggested
“I don’t recall telling them that specifically”, Liczyk replied.
“Let’s not mince words, you didn’t tell them that”, the lawyer pressed.
“No, I did n ot”, she said.
Three points here
Cross-examining on omissions
Pinning a witness down
Listening to the the answers, probably the most important point in this entire talk, and takes us to our next slide

15. Make sure your question is answered.
“Did you threaten to over-rule Mr. Lewis?”
Cast of characters
Jeremy Paxman - BBC’s news # interviewer - Mansbridge on steroids
Michael Howard - Home Secretary ( Minister of Public Safety) – man on the slide
Derek Lewis Permanent Secretary (equivalent to DM )for prisons in
the Home Office
John Marriott - Governor of prison where 3 lifers escaped
Brief story
Two murders and an arsonist, all serving life sentences, escaped from a prison in the
Isle of Wight in the UK. The Home Secretary, Michael Howard, who was responsible
for prisons, was obviously not pleased. The Governor of the prison was John
Marriott.
There were stories in the press that Mr. Howard had put a lot of pressure on DM
Derek Lewis, Mr. Marriott’s boss, to fire Mr. Marriott. The Home Secretary cannot
fire Mr. Marriott on his own volition, as it is an operational / personnel issue that is
entirely within the bailiwick of the DM Mr. Lewis.
Like the chair of a police service board tell the chief to fire a constable
Mr. Lewis had decided NOT to fire Mr. Marriott.
The press had honed on to a leaked aspect of the story - that Mr. Howard(man on the screen) had
threatened to overrule the DM’s decision not to fire Mr. Marriott during a very
heated argument. Mr. Howard could and should not have done this, if that was in
fact the case.
Mr. Howard had appeared in the House of Commons earlier that day, and explicitly
denied in any being involved in any decisions about whether or not Mr. Marriott
should be fired
The issue, of course, is whether Mr Howard threatened to overrule Mr. Lewis

16. A hearing is not a debate
Do not let witnesses climb over you
Don’t let them turn the cross-examination around and start questioning you

17. Who is this guy?
Discuss the importance of document production – go to Nigel Wright
Nigel Wright gave the impression in examination-in-chief that he was engaged in an act of altruism in cutting a cheque for $90,000 for Mike Duffy to the point where he was citing biblical references “my view is I was helping out. It’s sort of like Matthew 6 right? You should do those things quietly and not let your left hand know what your right hand is doing”.
So how did Duffy’s lawyer attack his credibility and attempt to prove that this payment was simply a crass political move to deceive the public into thinking that Duffy was doing the right thing? Not by simply standing up and calling him a liar, but by references to documents, in particular s and police statements from others who were interviewed. Here’s one exchange: Duffy’s lawyer read aloud what former PMO Issues Management director Chris Woodcock said in an – that Duffy’s expenses were ‘politically unacceptable’ to the government. Wright finally agreed, saying: “the fact that inappropriate expenses were being claimed by a member of the government caucus was politically embarrassing.”

18. Schmiergelder “Grease Money”
How Not to Cross-Examine from the Examination for Discovery of Brian Mulroney on April 17, 1996
Q. Since you left office, have you had any dealings with Karlheinz Schreiber?
Well, from time to time, not very often. When he was going through Montreal, he would give me a call. We would have a cup of coffee, I think, once or twice. I never had any dealings with him”.
Q. Let’s more on to a different topic.
End of the Defence Case

19. Reply Evidence
Have a right to call evidence after closing of subject officer’s case on new issues arising out of the latter’s evidence which could not be reasonably anticipated
For example, defence calls the subject officer who testifies that he has no memory of pointing a loaded police issued firearm at his partner. The defence then calls a psychiatrist who gives opinion evidence that the subject officer suffered from a memory blackout and his opinion the subject officer’s act of pointing the firearm was not voluntary. You as the prosecutor have the right to call your own expert in reply to rebut the defence expert.
Favretto case

20. Closing Submissions Your chance to drive home theory of your case
Start with an overview, expand
it, then summarize
“I submit”, not “I think”
Weave submissions into exhibits, particularly documents
“A closing address is an exercise in advocacy. It is the culmination of a hard fought adversarial proceeding. Crown counsel, like any other advocate, is entitled to advance his or her position forcefully and effectively. Juries expect that both counsel will present their position in that manner and no doubt expect and accept a degree of rhetorical passion in that presentation.
The closing address is the proper forum for argument and the Crown is certainly entitled to argue its case forcefully. The Crown should not, however, engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness”: R. v. Stewart & Mallory OCA 2007

21. Judgement on Misconduct
The hearing officer does his homework and writes a comprehensive analysis of all the evidence including compelling reasons why the subject officer’s evidence was rejected based upon your devastating cross-examination.
On to the penalty phase.

22. Penalty Phase
* Evidence in penalty phase – personnel file, media coverage, similar fact, propensity evidence
Break submissions into thirteen headings; See: Galassi v. Hamilton Police Services
Remember ss. 85(7) giving hearing officer additional powers
Check OCPC disciplinary database
Seeking dismissal? Was officer suspended pending hearing?
Are thirteen headings that hearing officers should take into consideration at the penalty stage
Remember to integrate into your submissions relevant evidence called at the hearing and in the reasons for judgement – for example, if hearing officer disbelieved the subject officer
Finding of dishonesty or violence? Ability to be of ongoing use to the Service relates to his ability to give credible evidence in subsequent trials
Ss. 85(7) added in the 2009 amendments – hearing officer may also reprimand, direct specific counselling or treatment, or direct subject officer in a specific program or activity

23. Judgement on Penalty
Is it over?

24. Is It Over???? Is it over? In a dismissal case, this is unlikely
Subject officer will appeal to OCPC
Filing of the appeal papers will act as a stay of the dismissal (in other words suspends the dismissal) and subject officer will be paid pending the outcome of the appeal
OCPC has the power to lift the stay but seldom do
Notice of Appeal has to be filed within 30 days of the date of the decision or the appellant is out of time: Borda v. Waterloo Police Service OCPC 2014

25. Prosecuting Police Services Act Cases Adjudicators & Prosecution Course 2016
Ian D. Scott
Lawyer
Suite 1900
439 University Ave
Toronto Ontario M5G 1Y8
(o)
(fax)