Maracle v. Penetanguishene Police Force, 1980 CanLII 2751

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 PENETANGUISHENE POLICE FORCE

DECISION

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

Hearing Date: Monday, November 10, 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, Q.C., Counsel for the Appellant, who also appeared in person.

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

Hearing: Monday, November 10, 1980, at 10:00 a.m.

1. This is an appeal from the decision of the Committee of Council of Penetanguishene dated August 28, 1980, which found Constable Bernard Mitchell Maracle guilty of insubordination and required that Constable Bernard Mitchell Maracle resign within seven days or be dismissed from the Force.

2. The charges against Constable Maracle arise out of an incident which occurred on the 7th day of May, 1980, at the Town of Penetanguishene, Ontario. On the day in question, Constable Maracle was required to commence duty at 3:45. It is alleged that he did not arrive until 4:40 p.m.

3. These facts left uncontradicted support a conviction for failing to obey a lawful order requiring the Constable to be on duty on time. The thrust of this appeal has little to do, however, with the facts giving rise to the charge.

4. To appreciate the position taken by counsel for Maracle, it is necessary to trace some of the history of Constable Maracle's problems dealing with disciplinary matters.

5. According to the evidence, Constable Maracle reported

6. late for duty on May 1, 1970 and was warned about being late.

7. On August 14, 1975, Constable Maracle was convicted of being late and fined five days' pay which was subsequently reduced on appeal to two days' pay. On May 25, 1979, a warning was given again regarding Constable Maracle being late for duty. On October 5, 1979, he was charged with insubordination for being late for duty and for consuming liquor prejudicial to duty. He was convicted by the Committee of Council on both charges and required to resign within seven days. On appeal to this Commission, the conviction for consuming liquor prejudicial to duty was quashed, the charge of insubordination was upheld and the penalty handed down was a forfeiture of twenty days' leave. On November 11, 1979, Constable Maracle again reported late for duty but there was no warning. On January 16, 1980, he reported late for duty and was warned.

8. According to the evidence, Constable Maracle reported late for duty on May 1, 1970 and was warned about being late. On August 14, 1975, Constable Maracle was convicted of being late and fined five days' pay which was subsequently reduced on appeal to two days' pay. On May 25, 1979, a warning was given again regarding Constable Maracle being late for duty. On October 5, 1979, he was charged with insubordination for being late for duty and for consuming liquor prejudicial to duty. He was convicted by the Committee of Council on both charges and required to resign within seven days. On appeal to this Commission, the conviction for consuming liquor prejudicial to duty was quashed, the charge of insubordination was upheld and the penalty handed down was a forfeiture of twenty days' leave. On November 11, 1979, Constable Maracle again reported late for duty but there was no warning. On January 16, 1980, he reported late for duty and was warned.

9. On May 7, 1980, Constable Maracle was charged again with insubordination for being late. The Committee of Council convicted the Constable and required that he resign in seven days.

10. The latter hearing before the Committee of Council was held with only two members contrary to Section 2(f) of Regulation 680 under the Police Act. Constable Maracle was without counsel at this hearing, but it appears clear that this was at his own request.

11. Although no issue was taken with the lack of jurisdiction of the Committee of Council at the hearing, an appeal was launched by counsel for Constable Maracle. This appeal resulted in the conviction being quashed by this Commission on the written consent of counsel for both parties.

12. On July 16, 1980, a fresh charge arising out of the original incident of May 7, 1980, was laid against Constable Maracle. The matter proceeded before the three members of the Committee of Council on August 26, 1980, and was reserved for a decision to August 28, at which time a penalty requiring Constable Maracle to resign within seven days was handed down.

13. At the outset of the hearing on August 26, 1980, counsel for Constable Maracle took issue with the Committee rehearing the charge in light of their earlier decision. Counsel urged that the Committee designate a judge pursuant to Section 18 (1) of Regulation 680 under the Police Act to hear the charge.

14. Mr. Donnelly urged that natural justice demanded that the Tribunal dealing with this matter not only be impartial but that it appear to be impartial.

15. Harman J. in Byrn et al v. Kinematography Renters Society Limited, (1958) 2 All E.R. p. 579 at 599 dealt with the principles of natural justice in this fashion:

"What, then are the requirements of natural justice in a case of this kind? Firstly, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more."

16. "What, then are the requirements of natural justice in a case of this kind? Firstly, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more."

17. There is an overriding principle that requires that the members of the Committee of Council not only act in good faith, but that their actions appear to be in good faith. Mr. Justice McGillvray in giving judgment in R. v. Peterborough Police Commissioners, (1965) 1965 CanLII 196 (ON CA), 2 O.R., 577 said,

"There is no more important principle observed in our courts than that every man is entitled to an unbiased hearing, and that every tribunal adjudicating upon the rights of an individual must be free from suspicion of partiality."

18. It was urged upon me that any tribunal hearing the facts of this matter and knowing the background of Constable Maracle would have come to the same conclusion. While that may be so, Constable Maracle is nevertheless entitled to a hearing before a tribunal which not only is impartial but appears to be impartial.

19. In the circumstances I am obliged to return this matter for a rehearing. Although I have no jurisdiction to make the appropriate order, I do urge the Committee of Council to avail themselves of the provision of Section 18 ofRegulation 680 of the Ontario Police Act and have a judge hear a new trial.

DATED at the City of Toronto, in the Municipality of Metropolitan Toronto, this 18^th^ day of November, 1980.

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