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 an Appeal to the Ontario Police Commission by:

CONSTABLE ERNEST JUDSON BROWNING Appellant

ONTARIO PROVINCIAL POLICE FORCE Respondent

DECISION

Panel: Shaun MacGrath, Esq., Member W. Thomas McGrenere, Esq., Q.C., Me

Hearing Date: Wednesday, December 19, 1979, 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

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

Appearances:

Michael Temple, Esq., Counsel for the Appellant, who also appeared in person.

M. Bader, Esq., Counsel for the Respondent, Ontario Provincial Police Force. Also present was Inspector S. W. Mitchell.

Hearing: Wednesday, December 19, 1979, at 10:00 A.M.

1. This is an appeal by Constable Ernest Judson Browning from his conviction by Superintendent A. R. MacMartin on the llth day of October, 1979, on a charge of neglect of duty, in that he did without lawful excuse, on the 18th day of February, 1979, neglect or omit promptly and diligently to perform a duty as a member of the Ontario Provincial Police Force by failing to take appropriate enforcement action with respect to two tractor trailer units alleged to be speeding, contrary to Section l.iii.(a) of the Schedule Code of Offences contained in Regulation 680 made under The Police Act. The facts leading up to the occurrence are reasonably straightforward. Both Constable Browning and Constable Jones commenced duty on February 18, 1979 at approximately 1600 hours. Constable Browning at that time had been assigned to an unmarked radar car. At 1636 the dispatcher advised him to proceed to Highway 401 to attempt to intercept two speeding trucks proceeding westbound. The first dispatch indicated that the speeding trucks were coming into the Chatham area. A subsequent dispatch at 1709 hours was given to Constable Browning indicating that the trucks were now entering the Chatham district.

2. At the time that the first dispatch was received, Constable Browning was performing his duty in stopping speeders on Highway 401. He had encountered Constable Jones at about the same time as the first dispatch or shortly thereafter.

3. Constable Browning had been scheduled to take an early lunch hour and according to his evidence he had asked Constable Jones to respond to the dispatch re: the speeding trucks on the 401. Constable Jones denies that this was the case. The two constables did, however, trade cars and Constable Browning telephoned the dispatcher from his home indicating that this had been done. Constable Browning had told the dispatcher that he and Jones had traded cars, but there was a certain ambiguity as to the purport of the message and as to how far the message was to be conveyed beyond the dispatchers.

4. The vehicles proceeding westbound at a high speed on the 401 were never intercepted nor identified further as Constable Jones denied that he had been asked to perform this duty on behalf of Constable Browning. Constable Jones admitted that he heard at least part of the message to Constable Browning but denied that he would have attended to the matter even had he been asked as this was not the manner in which duties were reassigned. Later in the evening when Constable Browning was first approached about his resolution of the dispatch concerning the trucks, there seemed to be a certain vagueness to his response.

5. We very much regret that two officers have given contradictory evidence concerning this occurrence and that such conflict in the evidence can only lead to the conclusion that one of the officers is not telling the truth. It is, however, not necessary for the Commission to determine the question of credibility in dealing with the charges against Constable Browning.

6. Counsel for Constable Browning submitted that the Constable was not in neglect of his duties as he had firstly, reported to the radio dispatcher that he had turned his territory over to a fellow officer; and secondly, that' he had taken proper enforcement action by turning over the territory he was supervising to a fellow officer.

7. In dealing with the first submission, we have already noted that there was a certain ambiguity in the manner in which Constable Browning reported the transfer of his duties. In our opinion the report of the transfer of duties was so vague as to be completely uncertain and most unsatisfactory.

8. In dealing with the second submission, it is interesting to note that Constables Kearns, Jones and Browning, as well as Corporal Feldcamp all testified that there was only one recognized way of reassigning duties and that was through the dispatcher and a superior officer. They all testified and indeed Constable Browning admitted that what he had done was most unusual in attempting to reassign duties in the manner alleged to have been done. It was argued that this purported reassignment of duties by Constable Browning was sufficient to provide a "lawful excuse" for Constable Browning omitting to do his duty. Without placing too narrow an interpretation on the wording "lawful excuse", we do not feel the purported transfer of duties by Constable Browning fell within the meaning of "lawful excuse``.

9. We further feel that Constable Browning failed to promptly and diligently perform the duty that was assigned to him in any event. The evidence indicated that the portion of Highway 401 that fell within the Chatham territory was approximately 41 miles in length. Constable Browning admitted that when he received the first call he was approximately 15 minutes away from Highway 401. He went about his regular duties for the next 33 minutes when he received the second call. At that time he was still approximately 15 minutes away from Highway 401. Constable Browning indicated that he had two points of entry to Highway 401 his location. The first entry would take him to a point approximately 20 miles west of the most easterly boundary of 401 in the Chatham territory. The second point of entry would take him to a point approximately 27 miles west of the most easterly boundary of 401. To warrant such a dispatch as was given to Constable Browning, the truck had to be approaching at a speed considerably greater than 60 m.p.h. Even assuming a vehicle proceeding at 60 m.p.h. has to be intercepted, then Constable Browning would have to have assumed that the vehicle in question was at least 45 miles east of the first point where he might intercept it, if he had any plans to intercept it before receipt of the second dispatch. Corporal Feldcamp indicated that the type of dispatch given t Constable Browning was the type that he ought to react immediately to and to discontinue other operations as the dispatch took precedence over radar operations. The failure of Constable Browning to attend to the dispatch for 33 minute in the circumstances, does not in our opinion constitute prompt and diligent enforcement action.

10. In all of the circumstances we feel that Constable Browning is guilty of the charge of neglect of duty.

11. Although the sentence in this matter was appealed, argument was not really pressed in that regard. In any event we find that the penalty administered by Superintendent A.R. MacMartin of loss of three rest days is reasonable.

12. In the circumstances, the appeal as to conviction and penalty is, therefore, dismissed.

DATED this tenth day of January A.D. 1980,

Shaun MacGrath, Esq., Member

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