Court rejects St. Thomas cop’s bid to overturn professional misconduct convictions

In a decision being hailed as previous setting, a St. Thomas police officer convicted of professional misconduct has lost his bid to overturn the conviction that resulted in his demotion.

const. Steve Cudney was convicted of two counts of discreditable conduct under the Police Services Act (PSA) – the law governing policing in Ontario – from a 2019 assault on his wife that also led to a criminal charge against the veteran officer.

Cudney, whose assault charge was withdrawn after he signed a peace bond, was demoted from a first-class constable to a fourth-class constable for one year, a penalty that will cost him tens of thousands of dollars in lost wages.

He appealed the decision with the Ontario Civilian Police Commission (OCPC), but the oversight body rejected his appeal, and that decision was upheld by a divisional court in a recent ruling.

The charges stem from Oct. 26, 2019, when Cudney returned to the family home to close the pool, on condition that his estranged wife not be present. The couple had separated a year earlier after two decades of marriage, the tribunal heard.

After cleaning the pool, Cudney took some mail from the kitchen and put it in his backpack before taking a shower. While showering, his estranged wife returned home and took his knapsack, saying he’d taken financial documents, the tribunal heard.

Cudney got out of the shower and went into the hallway, where he saw his wife going through his bag, leading to a struggle, the tribunal heard.

The wife, who refused to testify at the PSA hearing, told police Cudney pushed her against a door frame, while he testified he pulled his bag away from her with one hand and pushed her away with the other, causing her to fall.

The only witness called during the two-day PSA hearing in September 2020 was Staff Sgt. Steve Bogart, who conducted the internal investigation, and the evidence provided by the prosecutors was documentary and based on hearsay.

A statement Cudney’s wife provided to the OPP, the police force that laid the criminal charge against her husband, was not included in the report submitted as evidence. Instead, a summary of her statement was presented, and Bogart tested about his interactions with her.

Cudney’s failed appeal raised several issues, including hearing officer Greg Walton’s treatment of hearsay evidence, alleged errors of fact and law and the reasonableness of the penalty.

But the court found the OCPC carefully considered Cudney’s arguments concerning Walton’s treatment of the hearsay evidence and provided comprehensive reasons for rejecting them.

“Given the facts as found by the hearing officer and as confirmed by the OCPC on appeal, the OCPC’s decision to confirm the hearing officer’s conclusion that the test for discreditable conduct had been met was reasonable,” the court said in its decision

Cudney, a 22-year St. Thomas police officer, was also ordered to pay the force $5,000 in costs.

Prosecutors for St. Thomas police hailed the regional court’s ruling to allow hearsay evidence as an “important precedent-setting decision for women across Canada.”

“The decision opens the door to the courts to make a finding of guilt based on hearsay evidence allowing for a conviction without relying upon the victim’s testimony,” lawyers Ian and Allison Johnstone said in a statement.

The decision also shows that evidence is given weight without direct testimony and that the absence of a criminal conviction in a case doesn’t mean professional misconduct didn’t occur, the lawyers added.

Cudney’s lawyer, Phillip Millar, said his client, who remains on leave, won’t take his case to the Ontario Court of Appeal.

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