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 BERNARD M. MARACLE Appellant

PENETANGUISHENE POLICE FORCE Respondent

DECISION

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

Hearing Date: Tuesday, April 15, 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:

J. M. Donnelly, Esq., Counsel for the Appellant, who also appeared in person.

Paul DeVillers, Esq., Counsel for the Respondent, Penetanguishene Police Force.

Hearing: Tuesday, April 15, 1980, at 10:00 a.m.

1. This is an Appeal by Constable Bernard Mitchell Maracle from his conviction by the Committee of Council, duly appointed by Council of the Corporation of the Town of Penetanguishene, of charges of (1) insubordination; (2) consuming intoxicating liquor in a manner prejudicial to duty.

2. The Committee of Council, which hereinafter will be referred to as "the Committee" having convicted the constable on both charges, heard submissions as to sentence and thereafter directed that Constable Maracle be required to resign and in default of resigning within seven days, to be summarily dismissed from the force.

3. On the charge of insubordination which arose out of attending at work after the appointed hour, although there was a discrepancy of whether Constable Maracle was twenty mintues to thirty minutes late, there was no quarrel with the fact that he indeed was late on the day in question. Counsel for the constable, in respect of this charge, submitted that:

(a) there ought not to have been a separate charge for being late under the circumstances; and

(b) the charge ought to have been one of neglect as opposed to insubordination.

4. With respect to the former, counsel submitted that the offence of being late should not have been a separate charge, let alone a major charge given the circumstances. He submitted that the fact of Constable Maracle being late was simply a manifestation of the more serious offence of the consumption of alcohol in a manner prejudicial to duty, if in fact the constable was guilty of that charge.

5. While the late attendance may indeed support a more serious charge, that does not mean that it in itself cannot be treated as a charge of insubordination or neglect. Whether the charge is minor or major is in the discretion of the Chief of Police or the other officer as designated. The circumstances here would seem to support the discretion as exercised.

6. It was further submitted that Constable Maracle was not guilty of a charge of insubordination, but one of neglect for attending to his duties late. Counsel submitted that the charge of insubordination suggested a willful act as opposed to an omission.

7. The Code of Offences Section l(ii)(b) provides for a charge of insubordination if an officer "disobeys, omits or neglects to carry out any lawful order". The Code also provides for a charge of neglect, Section l(iii)(a) if an officer "neglects or omits promptly and diligently to perform a duty as a member of the Police Force".

8. The word "neglect" as used in Section l(ii)(b) of the Code of Offences would seem to apply to either a willful act or an act of omission. The prosecution proved an order, being By-law 1978-35 requiring officers to report fifteen minutes before the hour they would commence duties. This order was in fact breached by the neglect of Constable Maracle and thus the Committee was right in convicting Constable Maracle of insubordination.

9. On the charge of consuming intoxicating liquor in a manner prejudicial to duty, it was submitted by counsel for Constable Maracle that (1) the evidence was insufficient to register such a conviction; and (2) that the sentence in any event was totally inappropriate.

This charge against Constable Maracle requires:

(a) that the officer consumes intoxicating liquor; and

(b) that such consumption makes him unfit for duty.

10. The evidence of the presence of intoxicating liquor in Constable Maracle is somewhat meagre. Sergeant Westcott stated that he did not detect the odour of alcohol on Constable Maracle, although he was with him for approximately one-half hour. He does say that Constable Maracle showed signs of being intoxicated in that:

(a) he had trouble finding his words;

(b) he changed subjects frequently; and

(c) he appeared flippant

11. These symptoms are no doubt consistent with the overconsumption of alcohol, but one would have thought that an experienced police officer as Sergeant Westcott would have been able to more fully describe the condition of Constable Maracle as it related to his consuming liquor, particularly in the absence of smelling the odour of same on the officer.

12. The most significant evidence of the presence of alcohol on Constable Maracle was the alleged admission by the officer that "possibly I've had too much". This was quoted by Sergeant Westcott in his examination-in-chief, but this evidence, however, was tempered somewhat on the cross-examination of the Sergeant wherein he indicated that he "thought" Constable Maracle had said that.

13. Constable Maracle made it clear that he had consumed at least 2 1/4 ounces of alcohol between 12:30 and 2:30 on the day in question. He states that he made no admission that he consumed too much, but he recalled saying to the Sergeant having been accused of the fact, "I guess in your mind I may have had too many". This quote may have seemed strange to the Committee, if in fact Constable Maracle's last drink had been two hours before the comment was made, and if in fact he had only consumed 2 1/4 ounces of alcohol between 12:30 and 2:30.

14. Whatever interpretation the members of the Committee gave to the above or what inferences they were prepared to draw is not clear because they made no findings of fact, nor did they allude to any inferences they were drawing. It is clear, notwithstanding their specific finding, that there was evidence to base a finding of the fact that Constable Maracle did report for duty after consuming intoxicating liquor.

15. The evidence pertaining to the second aspect of the charge, i.e. that the officer was unfit for duty, was less clear and contradictory.

16. Sergeant Westcott indicated that Constable Maracle was having difficulty finding his words, switched topics, and sounded flippant, and "had not prepared himself" approximately one hour after reporting for duty. What was meant by "had not prepared himself" was not elaborated upon. The Sergeant did not decide to discharge Constable Maracle until approximately one-half hour after he met with him on the afternoon in question. The Sergeant was aware that Constable Maracle had driven his truck to work and was, in fact, driving his truck from the station after being discharged and the Sergeant was not troubled by this fact. The evidence disclosed that the Chief had also observed Constable Maracle drive out of his driveway and down the street in a normal fashion.

17. Sergeant Westcott quite rightly in his opinion indicated that the Constable's ability to drive a motor vehicle did not necessarily mean that the Constable was nevertheless fit for duty at that relevant time. The evidence of the Constable's driving, however, is an aspect that the Committee was entitled to consider in weighing all of the evidence as to whether the Constable was unfit or not.

18. Mrs. Steele, the Clerk at the Police Station stated that the Constable had called in to say that he would be late and that it was not unusual to this officer or other officers to do so. She stated that the Constable arrived at 4:05 and asked where the man was that he had asked to cover for him. Th Constable then asked where the Sergeant was and when advised, asked if the Sergeant needed any help. On being advised to the negative, he then read reports and occurrences which she described as a normal routine. The Constable came close enough to Mrs. Steele's typing station to realize that she was typing one of his reports and inquired as to the need for same. She said that the Constable was aware of the Sergeant returning with a bike and asked for reports on bicycles to see if the description of the bike fit the description in the reports. She did not notice any odour of alcohol on Constable Maracle.

19. The Committee as the trier of facts must weigh all of the evidence and determine on the facts as they find them whether the Constable was unfit for duty on the afternoon of October 5 when reporting for work. The onus is on the prosecution to demonstrate on the balance of probabilities, that the Constable was unfit and the evidence to that end must outweigh the evidence to the contrary. The Committee cannot simply accept the opinion of the Sergeant that the Constable was unfit, without being satisfied that the evidence supported his opinion. To do so would be to simply abdicate that responsibility in favour of the Sergeant. It may well be in certain and perhaps most circumstances that merely reporting to work emanating the odour of liquor would render the officer unfit. The Code of Offences obviously contemplates that in some cases that is not enough.

20. The Commission as an appellant tribunal cannot simply replace its opinion for that of the Committee, but the Commission must be satisfied that the Committee's decision is supported by the evidence on the record. From reading the submission to penalty, is left with the impression that the Constable may well have a drinking problem and certainly has had a recent problem reporting to work on time. The evidence at the hearing, however, falls short of demonstrating that Constable Maracle was incapable of carrying out his duties on the afternoon of October 5, 1979. I am not satisfied on all of the evidence that the conviction, that must necessarily be based on the Constable being unfit, is supportable on a fair reading of this evidence. It appears that the Committee has accepted the opinion of the Sergeant while ignoring wholly independent evidence that the Constable was acting in a routine and normal fashion.

21. The conviction as to consuming intoxicating liquor in a manner prejudicial to duty is, therefore, quashed.

22. The evidence of insubordination in the circumstances indicates a problem which left uncorrected would amongst other things make it very difficult for the Chief of Police to operate an organized and efficient Force. This is the second convictio for a similar offence and the penalty must, therefore, reflect same.

23. In the circumstances, on the finding of insubordination,

Constable Maracle will be required to forfeit twenty day of leave or days off.

DATED at the City of Toronto, in the Municipality of Metropolitan

Toronto, this 15th day of May, A.D. 1980.

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