Constable Hugh Lynn v. Metropolitan Toronto Police Force, 1980 CanLII 2742

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The Police Act, R.S.O. 1970, Chapter 351, and amendments thereto and Regulations thereunder; and,

IN THE MATTER OF Appeals to the Ontario Police Commission by:

CONSTABLE HUGH LYNN METROPOLITAN TORONTO POLICE FORCE

DECISION

Panel: W. Thomas McGrenere, Esq., Q.C., Member.

Hearing Date: Wednesday, November 19, 1980, at 10:00 a.m.

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, Ontario M7A 2T3 Tel: 416-314-3004 Fax: 416-314-0198 Website: www.ocpc.ca

W. Thomas McGrenere, Esq., Q.C., Member

Appearances:

H. P. Rolph, Esq., Counsel for the Appellant, who also appeared in person.

G. Monteith, Esq., Counsel for the Respondent, Metropolitan Toronto Police Force. Also present was Inspector Alexander.

Hearing: Wednesday, November 19, 1980, at 10:00 a.m.

1This is an appeal from the conviction of Constable Hugh Lynn by Superintendent H. Smith following a hearing on the 23rd day of June, 1980, on the major charge of the offence of deceit, alleged to have been committed by Constable Lynn on February 8, 1980, contrary to Section l(iv)(a), of the Schedule Code of Offences, Ontario Regulation 680/70, made under The Police Act, which conviction was confirmed by the Board of Commissioners of Metropolitan Toronto Police on the 18th day of September, 1980.

2The facts may be cited briefly as follows. On February 7, Constable Lynn was required to be on duty from 11:00 p.m. to 7:00 a.m. on February 8. During the course of his duty he had occasion to make an arrest and was required to work overtime, He was scheduled to attend at the Scarborough Court complex at 10:00 a.m. on February 8. His attending sergeant who was aware of this fact ordered Constable Lynn to remain on duty on overtime.

3Constable Lynn attended at the Court complex shortly after 10:00 and as was required, attended at the Court clerk's office to fill out a Court card. The Court card which is Exhibit "3" herein required amongst other things that the officer advise as to his regular duty hours, whether he was on duty or not at the time of the Court appearance, and if entitled, as to how he wished to be paid for the attendance at Court.

4It was the evidence of the Court clerk, Maureen McFlynn that she enquired of Constable Lynn if he were off duty and on being advised of the positive, enquired further as to how he wished to be paid for his Court time. She was told by Constable Lynn that it was to be in cash.

5After the conclusion of the Court proceedings which ended at approximately 12:30, Constable Lynn signed his Court card and returned to his home. By prearrangement with his sergeant, he called the sergeant and was advised by the sergeant that he would be booked off overtime duty as of 1:30 and would be entitled to 6 1/2 hours of overtime credit.

6Constable Lynn testified that he did not read the Court card before signing it. He denied that he had advised that he was off duty and further denied that he had asked to receive credit for Court time in cash. He had noted in his log book that he was entitled to 6 1/2 hours of overtime and that he was requesting cash. In fact, the sergeant at the station had noted that it was to be lieu time.

7Miss McFlynn, the Court clerk indicated twice in her examination-in-chief that she had asked Constable Lynn if he were off duty and having been advised that that was the case, asked how he wished to be paid for his overtime. Under crossexamination she admitted that when she was told by the attending officer as to his hours of work and when those hours were obviously outside of the regular Court time, that she naturally assumed that the officer was off duty. She was not however, asked specifically as to whether or not she had assumed on the day in question that Constable Lynn was off duty. She did state under cross-examination, however, that she recalled this particular incident because Constable Lynn was from an outside district.

8It was ably argued before me that that this specific charge had to be "knowingly" breached and that it required a mens rea on the part of Constable Lynn. It was then suggested that the onus of proof while perhaps not being beyond a reasonable doubt, had to be much more than the civil burden of proof on the balance of probabilities. Authority was cited which supported this position and it was the submission of counsel for Constable Lynn that this degree of proof had not been met in this particular case.

9The conviction really turns on the question of credibility and more specifically on the evidence of the Court clerk, Miss McFlynn versus that of Constable Lynn. Miss McFlynn was an independent witness and had nothing to gain in these proceedings. The Court card is a very simple document and even to one unfamiliar with the card probably would take a little more than ten seconds to comprehend it in its entirety. In the circumstances I do not find it necessary to deal with the submissions as to burden of proof as I am satisfied that there was sufficient evidence for Superintendent Smith to support his decision. He had the opportunity of hearing both Constable Lynn and Miss McFlynn and assessing their credibility in his own mind. I believe that it is implicit in his decision that this in fact was done. The appeal is therefore dismissed.