ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The Police Act,
R.S.O. 1970, c.351 and amendments
thereto and Regulations thereunder;
AND IN THE MATTER OF an appeal to
the Board of Commissioners of Police
by
DIARAM BAL
DECISION
Panel: W. Thomas McGrenere, Q.C., Member.
Hearing Date: September 4, 1980.
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
BEFORE: W. Thomas McGrenere, Q.C., Member
APPEARANCES:
G. Kluwak, Counsel for the Appellant, who
also appeared in person
- Doyle, Counsel for the Respondent.
Also present was Inspector Alexander of the
Metropolitan Toronto Police Force
HEARING: September 4, 1980
This is an appeal from a decision of Superintendent Sproule dated March 4, 1980, which decision was affirmed by the Chief of Police and the Board of Commissioners of Police. Superintendent Sproule accepted the plea of guilty on three charges and upon the charge of discreditable conduct, required Diaram Bal to resign, and in default of resigning within 7 days, to be summarily dismissed from the force.
Prior to the hearing, five charges had been laid against Diaram Bal. Two of those charges were withdrawn and a plea of guilty was entered by Diaram Bal to the following charges:
NEGLECT OF DUTY: in that he...left an area,
detachment, detail or other place of duty
without due permission or sufficient cause;
- DECEIT: that he did knowingly make or sign a
false statement in an official document or
book;
- DISCREDITABLE.CONDUCT: that he did act in a
disorderly manner, or in a manner prejudicial
to discipline or likely to bring discredit
upon the reputation of the Police Force.
The facts giving rise to the charges against the Appellant, which were basically not in dispute, were as follows. On September 5, 1979, Constable Bal was scheduled to work the shift from 6:00 p.m. to 2:00 a.m. He was scheduled to work with one Constable David Rose on plain clothes duty. Some time in the early evening of September 5, Constable Bal called his brother-in-law's home, purportedly to enquire as to how his nephew Kenny Balram was. At this time, Constable Bal's brother-in-law advised him that the brother-in-law's cousin in New York was seriously ill and he wanted the Constable to drive him to New York that night. Constable Bal indicated that apparently there was some indication that bus connections could be made at that time. At approximately 10:00 p.m., the Constable advised Constable Rose that he was "going to see a chick" and wanted Constable Rose to book him off at 2:00 a.m.
At that point, Constable Bal drove in his own vehicle with his brother-in-law, Mr. Raninarine, and his nephew to the border crossing at Niagara Falls. Prior to arriving at the border crossing, Constable Bal was aware that his nephew did not have appropriate documentation to permit him to enter the United States. In the statement given on October 26, 1979, which statement was given for the purpose of Metro Police Departmental hearings only, Constable Bal indicated that he knew that had his nephew been asked for identification, his entry to the United States would have been refused. Constable Bal displayed his police identification to assist in crossing the border. He gave an old United States Social Security card to his nephew.
After Constable Bal had dropped his passengers off in Buffalo, he returned to his home immediately. He did not go to the police station to book off. He believed that his passengers had checked into a motel in the area where he had left them.
His passengers were, later in the morning of September 6, apprehended by the authorities in Buffalo after they had purchased one-way tickets to New York.
When Constable Bal had returned to work on the following day, he obtained Constable Rose's duty book and copied from that book the entries into his own book for the period of time during which he was absent.
No attempt had been made by Constable Bal to obtain time off from work on the evening in question. He admitted that he could have obtained time off for compassionate reasons.
The Customs officer at the border gave evidence that he recalled Constable Bal and his brother-in-law passing through his check-point on the evening in question. He recalled seeing the officer's plain clothes identity documentation for the Metro Police Force. He recalled asking for a declaration as to weapons. He did not recall seeing a third person in Constable Bal's vehicle.
The appeal is brought on three grounds:
that the presiding officer erred in making a
finding of guilt, there being no evidence adduced
with respect to that charge;
- that the presiding officer erred in making a
finding of guilt, in that he used the same
facts to convict the Constable of the other
offences and thereafter was barred by natural
justice and the principle of res judicata from
making a finding on the same facts with respect
to the charge appealed from;
- that the punishment was excessive and unduly
harsh in the circumstances.
There was a suggestion as well that the Constable had attempted to change his plea of guilty to the charge of discreditable conduct, to one of not guilty before the Board of Commissioners of Police. It was not clear that this in fact was done, and in fact there was no documentation to support that. A canvas of the point with counsel tended to demonstrate that in all probability, it would not make any difference as the basic evidence supporting the chargewas admitted by counsel for Constable Bal and Constable Bal had an opportunity to give evidence on his own behalf.
With respect to the first ground of appeal, I am satisfied that sufficient evidence was adduced whereby Superintendent Sproule coulddraw proper inferences which supported his reasons for judgment. Counsel urged that the evidence surrounding the crossing was ambiguous and ought not to create an inference that the Appellant was attempting to use his position with a police force to assist in an illegal entry. A view of only the evidence of the border incident in a light most favourable to the Appellant might well be neutral, but I do not think that Superintendent Sproule could divorce his mind from the facts leading up to the incident and subsequent to the incident.
With respect to the second ground of appeal, it was urged that the principle as set out in the decision of Keinapple v. The Queen (1975), 1974 CanLII 14 (SCC), 1 S.C.R. 729, ought to be applied to the circumstances giving rise to the charges in this matter. It was argued that the charges all arose out of one incident and that a guilty plea to the lesser charges was, in the circumstances, tantamount to res judicata on the issue.
I am not satisfied that the principles of procedure in criminal matters are binding, or for that matter, applicable to disciplinary proceedings.
It is interesting to note in any event that the first charge that was the subject of a plea, was the more serious charge of discreditable conduct. Although the other charges had been laid earlier, no plea had been entered until some time subsequent to the plea of guilty to discreditable conduct.
Although I do not think it is essential for the adjudication of this appeal, I tend to believe that the charges in this incident are sufficiently distinct to warrant being dealt with separately in any event.
If I am wrong on the applicability of the principles of criminal procedure (and the principle in the Keinapple case is applicable), then I would rely on the principle as set out by Laskin, C.J.C. in Regina v. Loyer and Blouin (1979), 85 D.L.R. (3d) d I would quash the sentences as administered under the charges of deceit and neglect of duty.
I am satisfied that the principles of natural justice were adhered to in that the Constable knew the nature of the charges against him, he had an opportunity to hear the evidence and rebut same, and the Tribunal of first instance acted in good faith.
With respect to the third ground of appeal, that the punishmen was excessive and unduly harsh in the circumstances, I do not believe that this contention can prevail. The evidence disclosed what might be termed as "reserved support" for Constable Bal, but other evidence clearly indicated that a number of officers did not want Constable Bal to return to their platoon. I am satisfied that there was sufficient evidence to support the decision of Superintendent Sproule and that he acted fairly in doing so.
The appeal therefore will be dismissed
Dated at the City of Toronto in the Municipality of Metropolitan
Toronto, this 12th day of September A.D. 1980
W. Thomas McGrenere, Q.C., Member