Constable Gary Hancock v. Waterloo Regional Police Force, 1980 CanLII 2753

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:

Appellant

Rspondent

DECISION

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

Hearing Date: Thursday, May 29, 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

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

Appearances:

E. S. Hafemann, Esq., Counsel for the Appellant, who also appeared in person.

E. L. Moore, Esq., Counsel for the Respondent, Waterloo Regional Police Force.

Also present was Chief H. Basse of the Waterloo Regional Police Force.

Hearing: Thursday, May 29, 1980, at 10:00 a.m.

This is an appeal by Constable Gary Hancock against a sentence administered by Deputy Chief Charles Clare on February 25, 1980, wherein the Constable was reduced from a first class constable to a second class constable for a period of one year from February 25, 1980. The imposed sentence resulted from a plea of guilty to a charge of neglect of duty in that the Constable was found idling while on duty (asleep) contrary to Section 1 III (b) of the Schedule Code of Offences of Ontario, Regulation 680/70, made in pursuance of The Police Act of Ontario.
The facts giving rise to the charge briefly, are that the Constable at approximately 1:40 p.m. on Tuesday, January 22, 1980, while on duty in his police cruiser parked in a relatively obscure area approximately one-quarter of a mile outside the boundary of the area he was to patrol and was found slumped behind the steering wheel with his head against the driver's door and his eyes closed, obviously sleeping. On the day in question, the Constable was scheduled to work from 0715 hours to 1530 hours. His lunch period was scheduled from 1130 hours to 1230 hours.
It was submitted by counsel on behalf of the appellant that:

(1) The Deputy Chief had taken into consideration matters which were not contained in the evidence at the hearing;

(2) The sentence imposed was inconsistent with previous sentences;

(3) The sentence was contrary to the recommendation of the prosecutor, Inspector Mazurek;

(4) The sentence was excessive in view of the record of the Constable.

It is clear from the record that Constable Hancock had ample opportunity to explain any mitigating circumstances in his favour or to correct any improper inferences that he thought the Deputy Chief may be drawing. There in fact was no attempt on the Constable's part to explain away his conduct on the day in question.
In considering the few facts that were put forward at the hearing, the case of Constable Mandicino, wherein the circumstances were apparently similar to those circumstances giving rise to the charge against Constable Hancock, is distinguishable on the face of it.
After considering all matters, it was Deputy Chief Clare's sole discretion as to the sentence to be applied. It is the Commission's duty to insure that the trier of fact considers all relevant matters in determining what is appropriate by way of sentence. It is apparent from the record that Deputy Chief Clare did consider the matters that were relevant and applied the appropriate weight to his considerations. The Commission is not prepared to interfere with the conclusions of the Deputy Chief and the appeal, therefore, is dismissed.

DATED at the City of Toronto, in the Municipality of Metropolitan Toronto, this 11^th of June A.D. 1980.

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