Corporal John Richard West v. Ontario Provincial Police Force, 1980 CanLII 2748

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 Appeal to the Ontario Police Commission by:

CORPORAL JOHN RICHARD WEST Appellant

ONTARIO PROVINCIAL POLICE FORCE Respondent

DECISION

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

Hearing Date: Friday, December 5, 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

1This is an Appeal by way of trial de novo of the conviction of John Richard West, Ontario Provincial Police Corporal from his conviction of neglect of duty in that he did, without lawful excuse, neglect or omit promptly or diligently to perform a duty as a member of the Ontario Provincial Police Force, contrary to Section l.iii.(a) of the Code of Offences contained in Regulation 680 made under The Police Act. The conviction was registered by Superintendent J. T. Kavanagh on the 25th day of September, 1980.

2The facts giving rise to this charge, with the exception of one major aspect which I will deal with in more detail later, are not really in dispute. On March 8, 1980, at approximately 1900 hours Corporal West had occasion to attend at the Haileybury Detachment in response to a call by civilian radio dispatcher Fred Sauve. Just prior to Corporal West's attendance at the Detachment, Mr. Sauve had been visited by one Wilbert Neddo who had attended complaining that a certain Mr. Ames, the custodian of the local municipal dump, was bootlegging beer. Mr. Neddo had been aware of an earlier transport accident whereby cases of beer had been spilled onto the highway. A great deal of the contents had found their way to the local dump. When Neddo and some of his friends attempted to obtain some of the beer at the local dump, they were turned back by Mr. Ames. Mr. Neddo became aware that Mr. Ames had retrieved a goodly portion of the beer in question and returned it to his home and was selling it there at reduced prices. In a fit of pique he attended at the OPP Detachment and offered his services to trap Mr. Ames for illegally selling the beer.

3When Corporal West attended at the Detachment he was apprised of the facts. He had been familiar with the events pertaining to the beer in question and had been at the scene of the accident when the beer was declared unfit for consumption by the attending insurance adjuster. Corporal West himself felt that there was a problem with the beer because a goodly number of the bottles had been frozen and the contents had spilled out of some. Although he did not play a role in declaring the beer unfit, he did feel himself at that time that the beer was contaminated.

4Corporal West accepted the offer of Wilbert Neddo to trap Mr. Ames and marked a two dollar bill which Neddo eventually proffered to Mr. Ames at his home for a 12 bottle pack of the beer. Mr. Neddo then returned to the Detachment with the evidence of the beer and urged Corporal West to make an arrest.

5Corporal West was not entirely satisfied that the evidence of Neddo was sufficient for a conviction and he then asked for Mr. Sauve to duplicate the manoeuvre made by Neddo. Mr. Sauve declined to become involved. Corporal West then sought the assistance of another civilian radio dispatcher, Guy LeBlond. This gentleman did attend at the Detachment at approximately 1915 hours and did in a similar fashion as Wilbert Neddo, attend at the residence of Mr. Ames and purchased the beer. Corporal West and two of his fellow officers eventually made an arrest and seized some 1,600 or more bottles of beer which had been improperly moved from the municipal dump by Mr. Ames. Mr. Ames eventually pleaded guilty to the charge of selling beer illegally.

6Corporal West was aware that Wilbert Neddo had a warrant for his arrest against him when he attended at the Detachment on the second occasion. It is with respect to what transpired between Neddo and Corporal West that gives rise to any contradiction of the facts in this matter.

7Neddo in his examination-in-chief was vague about having had any conversation about an outstanding warrant for an unpaid fine. He at first indicated that he did not recall on March 8, 1980, that such a warrant existed. Later he admitted that perhaps he was aware of it and that there had been some conversation concerning same. Later in his cross-examination he admitted to perhaps speaking to somebody about the outstanding warrant and that they were going to forget about it at that time. A statement given by Wilbert Neddo on July, 1980 concerning this matter was produced to Neddo and identified by him. This statement indicated that there was a discussion with Neddo and someone at the Detachment concerning the warrant and that Neddo indicated that he would pay the fine as soon as he received his cheque. In Neddo's statement he indicates that Corporal West did not say anything to him about the warrant.

8Corporal West indicates that he was aware that the warrant was outstanding when Neddo attended at the Detachment the second occasion on the evening in question. Neddo had actually attended on a third occasion and complained to Corporal West and anyone else who would listen to him about the delay by the police in making the raid on Ames' residence.

9Corporal West indicated that he did indeed speak to Neddo about the outstanding warrant and had been advised by Neddo that Neddo was expecting a cheque from Paige Transport with whom he was employed, and that he would pay the outstanding fine within the next few days. The evidence was not clear on precisely what the time for paying the fine was to be, but it would appear that Corporal West gave Neddo a week to ten days. Corporal West knew Neddo and knew that he was in the general area. Mr. Sauve also knew Neddo and was aware that he had been into the Detachment on several occasions for different warrants over the preceding seven or eight years.

10Where the evidence of Mr. Neddo and Corporal West differ I prefer the evidence of Corporal West. Corporal West was clear about having spoken to Neddo about paying the fine and recounted the matter of Neddo receiving the cheque from Paige Transport which is consistent with West having spoken to him directly.

11Corporal West gave evidence that committal warrants would be given to the court officer when they were received and that officer would attempt over a period of time to execute the warrant. When the warrant could not be executed by the court officer, it was then given to the dispatcher and was put on CPIC. Thereafter any officer coming in contact with the subject of the warrant would be required to execute on the warrant at that time. The practice did not require any officer other than the court officer to actually make attendances at the residence of the subject for the purposes of executing the warrant.

12The warrant for Neddo's arrest had been received in the Detachment on December 17, 1979. It was not until January 30 that the warrant was put on CPIC. There was no evidence to indicate whether any attempt had been made to execute on the warrant by any officer. There was evidence, however, that it was not unusual for the court officer to attempt over a period of three or four weeks to execute on the warrant before turning it over to the radio dispatcher to put on CPIC.

13Although Corporal West did allow Neddo extra time to pay the fine, it is clear he made little or no inquiry into the reason for the non-payment of the fine or the man's current financial state. Corporal West makes it clear that he had further reasons for not arresting Neddo at the time in question, It is obvious that he wished Neddo's assistance in establishing a case for conviction against Ames. He had an occasion to make the arrest on the night in question subsequent to satisfying himself as to Ames' conduct, but he did not wish to exercise the warrant at that time because of the proximity of Neddo's relatives, who Corporal West was afraid would go back and advise Ames of the impending raid.

14The charge against Corporal West is really that he failed to promptly and diligently execute a warrant against Neddo contrary to the OPP standing orders.

15The preamble of the standing orders given by the Commissioner of the OPP indicates that the orders cannot cover each and every situation that may occur and that the officer is expected to use appropriate discretion from time to time. Section 206.1 provides,

"When executing a warrant of committal where imprisonment is ordered in default of payment and the person named in the warrant cannot within a reasonable time pay the required money, a member shall arrest the person and deliver him to the jail in the area in which he is found."

16It is obvious from a quick perusal of this provision that the requirement for the officer to exercise discretion is inherent. The arresting officer is at liberty to provide a reasonable time within which the subject matter may pay the fine. Corporal West indicated that the practice in the communities of Haileybury, Timmins and Hearst which he had served in from time to time during his fifteen years tenure with the force was to allow people in the community extra time to pay the fine from time to time.

17Although counsel for the prosecution took issue with such latitude in the practice, there was no evidence forth coming which indicated that the practice was other than that described by Corporal West in communities such as the Haileybury District.

18I am satisfied that Corporal West was at liberty to exercise his discretion concerning the execution of the warrant against Neddo. This is so even though there was a secondary reason all be it one that seemed almost paramount to Corporal West at the time. I believe that Corporal West's exercise of discretion must be viewed in the light of the practice that prevails in the community in which he is policing. It may well be that with the benefit of hindsight one could be critical about his exercise of discretion but I tender the view that it demonstrated perhaps more poor judgment than neglect of duty.

19The matter, however, does not end there. The key words of Section 206.1 of the standing orders, referable to this matter are "promptly" and "diligently". The former applies to a time frame while the latter applies to the exercise of effort and implies a degree of perseverance. While the provisions of Section 206.1 permits an officer to exercise discretion in giving a short extension of time, it also imposes on him in my opinion an obligation to follow up with the subject of the warrant and make the arrest when the reasonable time has expired.

20The evidence was clear that Corporal West did not make any subsequent attempt to arrest Neddo until April 20 at which time the Corporal encountered Neddo on the highway. Neddo at this point had been the subject of a CPIC inquiry by another Detachment of the OPP. This query took place on April 1 and no one on duty at the Haileybury Detachment on that date was prepared to proceed and pick Neddo up.

21As indicated above, normally the officers at a Detachment, apart from the court officer, would not take extra steps to execute a warrant of committal in situations of this nature. This I do not believe would be the situation that existed as a result of this incident. To give intent to the provisions of Section 206.1 it seems that once a officer has taken the responsibility of exercising his discretion and allowing more time for the payment of a fine, that that officer has an obligation to take steps to insure that such payment is made or to determine why the fine is not paid and eventually to make the arrest. This obligation I believe to have been a continuing duty from March 8 on and the evidence is clear that no effort was made to discharge that duty until the happenstance of April 20. In the circumstances I find that Corporal West was guilty of neglect of duty and the penalty assessed will be the forfeiture of two weekly rest days.