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 RICHARD IRONS
SERGEANT GORDON HUXLEY
Appellant
METROPOLITAN TORONTO POLICE FORCE
Respondent
DECISION
Panel: His Honour Judge T. J. Graham, Chairman
Shaun MacGrath, Esq., Member
W. Thomas McGrenere, Esq., Q.C., Member
Hearing Date: Monday, February 11, 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
His Honour Judge T. J. Graham, Chairman
Shaun MacGrath, Esq., Member
W. Thomas McGrenere, Esq., Q.C., Member
Appearances:
Barrie Chercover, Esq., Counsel for the
Appellants, who also appeared in person.
Eric Polten, Esq., Counsel for the
Respondent, Metropolitan Toronto Police
Force. Also present was Inspector
Alexander.
Hearing: Monday, February 11, 1980, at 10:00 a.m.
The Appellant, Richard Irons appeals his conviction and punishment imposed by Superintendent D. Sproule on a major charge of discreditable conduct alleged to have been committed by him on the 9th day of May, 1979, contrary to Section l(i)(a) of the Schedule Code of Offences, Ontario Regulation 680/70,
The Appellant, Gordon Huxley, Sergeant of the Metropolitan Toronto Police, appeals his convictions and punishments imposed by Superintendent D. Sproule on major charges of discreditable conduct, neglect of duty and consuming intoxicating liquor in a manner prejudicial to duty alleged to have been committed by him on the 9th day of May, 1979, contrary to Section l(i) (a),
Section l(iii) (c) and Section l(ix) (c), respectively of the Schedule Code of Offences, Ontario Regulations 680/70, made under The Police Act.
The facts giving rise to the respective charges really are not in dispute. They can simply be summarized by stating that on the 9th day of May, 1979, Sergeant Huxley and Constable Irons visited a local tavern while on duty. The evidence is not clear as to how long they were in the tavern, nor as to how much alcohol was consumed. While in the tavern Constable Irons at some point danced on stage in the nude with a nude female dancer. At this time one of the other dancers was also dancing in the nude with hernude boyfriend. The Sergeant and the proprietor as well asa friend of the proprietor were the only other occupants inthe tavern at the time and they apparently were spectators to the routine.
With the exception of the time of the occurrence and minor discrepancy as to the duration of the officers' visitto the tavern, the evidence clearly indicated that the events as described had occurred. The witnesses at the initial hearing did not give any specific date but did indicate theapproximate period of the occurrence.
Counsel for the Appellants maintained that all convictions should be squashed because the date of the alleged offences was not proven by any of the witnesses. Counsel does not take issue with the clarity of the charges, but submits that where an offence is alleged to have occurred on a specific date, it is incumbent upon the prosecutor to prove not only the specific elements that give rise to the charge, but alsothe specific date that the offence occurred. He maintains that the date is an integral part of the charge and that the failure to prove the date of the offence is tantamount to a denial of natural justice. He urged that the disciplinary system itself was on trial and would be found wanting if a strict procedure is not followed.
As indicated above, the statement of particulars of the charges against P.C. Irons and Sergeant Huxley are very explicit. The evidence of the three witnesses for the prosecution confirm the particulars in more than sufficient detail. There was no question of identification of the officers nor was any of the evidence on the significant issues contradicted. Evidence was called by the Appellants to show that the officers could not have been at the tavern in question as early as the prosecution witnesses believed, but no other evidence in defence was adduced. Although Superintendent Sproule does not state so in his reasons, it was open to him to draw the inference that if the officers gave evidence, that their evidence would not support the defences being put forth on their behalf.
We believe that the prosecution could have produced more evidence as to the date of the offence, but we do not believe that the failure to prove the exact date is fatal to the prosecution, nor do we believe that the failure to do so was prejudicial to the officers in this case. The charges are explicit. We believe that more than sufficient evidence of the alleged offences was produced to warrant the convictions as registered.
It was submitted by counsel on behalf of Constable Irons that the penalty under all of the circumstances was too severe. It was urged by counsel that the constable's good prior performance record and his unsettled mental state at the time of the offence should be considered carefully when deciding the ultimate penalty. It was alleged that the constable was depressed at this time because of marital problems and because of the tragic death of a close fellow officer
We are not unsympathetic to the plight of Constable Irons but we must remain objective to be consistent. The constable's conduct must be examined in relationship to that of the broad police community. It was urged that the dismissal of Constable Irons would be very damaging to the morale of the Police Department. We really wonder if the reverse of this contention would not more likely be true. It is always difficult to speculate on just what effect a severe penalty to one of its members is going to have on a Force, but we cannot lose sight of the fact that the purpose of the penalty is twofold. Firstly, it must punish the responsible party; and secondly, it must serve as a reminder to others that such conduct will not be tolerated
In examining the conduct of Constable Irons, we are left to draw one of two irresistible inferences. Firstly, that the officer had consumed sufficient alcohol that his finer sensitivities and discretion were totally impaired or secondly, that he simply lacked judgment and sensitivity as to his position. Neither alternative is very flattering to Constable Irons nor to Sergeant Huxley. It was submitted that the conduct of Constable Irons although of a serious nature, was not likely to cause any real harm and that he had simply demonstrated that he was human. There was no dishonesty, no violence and no social overtones to the conduct.
We cannot accept the suggestion that no harm was done. Constable Irons and Sergeant Huxley owe not only a duty to the public, but as well a duty to their fellow officers not to adversely affect the reputation of the police community.
To suggest that the officer's conduct was known only to a few and not likely to reflect upon the police as a whole, we think is perhaps naive. This is particularly so bearing in mind the manner in which these charges came about.
We believe that the officer put himself in a compromising position and that he destroyed the trust and confidence imposed in him. We therefore dismiss his appeal as to conviction and penalty.
Sergeant Huxley had resigned at the conclusion of the
hearing before Superintendent Sproule. Counsel for the
Sergeant indicated that he adopted the arguments put forward
on behalf of Constable Irons as applicable to the appeal of
Sergeant Huxley's conviction. He did, however, urge upon the
Commission that Sergeant Huxley's main concern was to be able to resign in an honourable fashion without the convictions being recorded against him. It is true in speaking to the sentence on behalf of Constable Irons, Sergeant Huxley did attempt to shoulder all of the blame for the occurrence. This is an honourable posture, but it gives little explanation to Sergeant Huxley's conduct on the night in question. Our observations as to the inferences to be drawn from Constable Irons' conduct apply equally to Sergeant Huxley, and because of the Sergeant's senior position, make his conduct even more difficult to accept. We are left with no other choice but to dismiss the appeals of Sergeant Huxley both as to conviction and as to penalty. The appeals are therefore dismissed.
DATED at the City of Toronto, in the Municipality of Metropolitan
Toronto, this 29th day of February, A.D. 1980.
His Honour Judge T. J. Graham, Chairman
Shaun MacGrath, Esq., Member
W. Thomas McGrenere, Esq., Q.C., Member