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 RONALD MacDONALD
Appellant
METROPOLITAN TORONTO POLICE FORCE
Respondent
DECISION
Panel: W. Thomas McGrenere, Esq., Q.C., Member.
Hearing Date: Friday, November 28, 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.
H. W. 0. Doyle, Esq, Counsel for the
Respondent, Metropolitan Toronto Police
Force. Also present was Inspector
Alexander.
Hearing: Friday, November 28, 1980, at 10:00 a.m.
This is an appeal by Constable Ronald MacDonald of the Metropolitan Toronto Police from the decision of Superintendent D. Sproule on the 15th day of May, 1980 on the major charges of insubordination and deceit alleged to have been committed on the 8th day of November, 1979 and the 20th day of December, 1979, respectively, contrary to Sections l(ii)(b) and l(iv)(b), respectively, of the Schedule Code of Offences, Ontario Regulation 680/70, made under The Police Act, which convictions and punishments were confirmed by the Board of Commissioners of the Metropolitan Toronto Police on the 18th day of September, 1980.
The facts giving rise to the charges were as follows. On the 8th day of November, 1979, a Ms. Linda Little reported to Constable MacDonald that she had lost a one thousand dollar bill. This was reported at 3 Kimbourne Avenue. Ms. Little advised that she may have given the thousand dollar bill to a cab driver. She further indicated that she was going to use the bill for the purchase of furniture. Constable MacDonald noted this loss in his log book on that date.
On the 20th day of December, Ms. Little called 54 Division and asked if there had been any developments concerning her complaint of the lost one thousand dollar bill. Constable Davidson received the call from Ms. Little and checked his records to see if there had been an "occurrence report". He was unable to find one and according to the evidence he was in somewhat of a "flurry" over the missing report.
When the call by Ms. Little to Constable Davidson was received, Sergeant McNeilly was present and undertook to checkon the occurrence. At the same time Constable MacDonald was in the immediate vicinity and did hear to some extent some of the conversation concerning this report and volunteered to attend with Sergeant McNeilly. It is not clear in the evidence just precisely what Constable MacDonald knew about what was being investigated other than it was in reference to a missing thousand dollar bill and that there was not a report filed on it.
Constable MacDonald attended with Sergeant McNeilly to 4100 Lawrence Avenue East, Apartment 1103 which apparently was the apartment of Linda Little. On that occasion he heard repeated the same story that had been given to him approximately six weeks earlier. He also was identified by Ms. Little as the officer who had attended at 3 Kimbourne Avenue and had taken the particulars on the earlier date. He denied that he was the officer and tried passing it off saying, "we all look alike in uniform". He was subsequently asked by Sergeant McNeilly if he was in fact the officer who had made the investigation and he again denied that that was the case.
Sometime later, a search was made by Constable Davidson of the records at 54 Division and he could not find a report of this occurrence. He called headquarters and asked that they search their records concerning such a report. He was advised that they were not able to locate any such report.Constable MacDonald was asked to tender his log book and upon inspection it was found that a notation of the 8th day of November, 1979 had in fact been made relative to the lost one thousand dollar bill. Constable MacDonald maintained throughout that he could not recall having attended initially on Ms. Little. He indicated that he usually files a report of such occurrences on the same date. He did not go so far as to say that he had filed a report on this occasion.
Charge of Insubordination
It was submitted on the appellant's behalf that the evidence fell short of proving that no report had been filed. Counsel took the position that evidence on this point was largely hearsay. The decision of Re Girvin et al. and Consumers' Gas Co., 40 D.L.R. (3d) at p. 509, a decision of the Divisional Court was filed in support of this contention. I believe that this decision is distinguishable on two counts. Firstly, the evidence offered in that case was exclusively hearsay; and secondly, the "prosecution" evidence was in part contradictory. The evidence in this case was only in part hearsay and was not in any way contradictory, and indeed was not directly contradicted by Constable MacDonald. Constable MacDonald only went so far as to say that he normally submits a report.
Section 15(1) of the Statutory Procedure Act permits the trier of fact in tribunals of this nature to admit hearsay evidence. The trier of fact after admitting the hearsay evidence must apply the appropriate weight to such evidence. In this instance when the hearsay evidence was fortified with the direct evidence of Constable Davidson, and in the absence of contradictory evidence by Constable MacDonald, I believe that the Superintendent was both at liberty and correct to conclude that the report had not been filed.
It was submitted that the reasons for conviction indicate that Superintendent Sproule based the conviction more on his own understanding of reporting procedures than the evidence before him. While there is no doubt that the Superintendent does inject his personal knowledge, he does refer to the evidence of Constable Davidson on the material point. I am satisfied that the evidence was sufficient to reach the conclusion by Superintendent Sproule and I am satisfied that notwithstanding his personal comments, it was based on that evidence.
Charge of Deceit
It was submitted by counsel for the appellant that the offence of deceit can be committed either willfully or negligently. He further submitted that where it is clear that the trier of fact has based his conclusion on the wilful conduct of the officer, that the degree of proof required in such an instance was greater than that of the civil degree of the balance of probabilities. He submitted that the evidence in these circumstances fell far short of demonstrating such a willfulness on the part of Constable MacDonald.
Counsel for the respondent took the position that the appeal on both accounts turned strictly on factual matters and on the matter of credibility. It was implicit in his submission that regardless of the degree of proof, which was not debated, it was clear on the evidence that the conviction was amply supported.
I am inclined to the latter view. There was no contradiction of the facts leading to the charge. The defence was based simply on Constable MacDonald having no memory of the event which would require him to file a report. Thus it was a matter of the credibility of Constable MacDonald at issue. If his evidence of forgetfulness was not accepted by Superintendent Sproule, the defence fails. Superintendent Sproule found it "inconceivable" that Constable MacDonald would not recall an incident of this nature. It seems to me that in the absence of some physical or mental defect to Constable MacDonald, of which there was no evidence, that it is most unlikely that an officer would forget the incident, not only initially but after having it repeated almost verbatim. The appeals are therefore dismissed.
DATED at the City of Toronto, in the Municipality of Metropolitan 3rd Toronto, this 2 day of December, 1980.
W. Thomas McGrenere, Esq., Q.C., Member.