Constable Dennis B. Ryan, Constable Ingo A.N. Weise, and Constable Kenneth W.T. Lang, 1981 CanLII 3032

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OP The Police Act, R.S.O., 1970, c.351, and

amendments thereto and Regulations thereunder, and

IN THE MATTER OP an Appeal to the Ontario Police Commission

by:

Constable Dennis B. Ryan

Constable Ingo A.N. Weise

Constable Kenneth W.T. Lang

DECISION

Panel: W.T. McGrenere, Esq.,

Hearing Date: Tuesday, February 23, 1982.

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

1. These are appeals by Ontario Provincial Police Constables Dennis Barry Ryan, Ingo A.N. Weise, and Kenneth William T. Lang from convictions of "Deceit", in that each did knowingly make or sign a false statement in an official document, contrary to section l.IV (a) of the code of offences contained in regulation 680 made under the Police Act, by Superintendent J.E. Gloss on the 6th day of November, 1981.

2. The facts giving rise to the charges in this matter are really not an issue. Constables Ryan, Weise and Lang were assigned to Ontario Place in mid 1980. At the relevant time all found property was turned over to Metropolitan Toronto Police Department.

3. Amongst other duties, the Constables were required from time to time to fill in property occurrence reports. The forms for these reports were supplied by the Metropolitan Toronto Police Department and were to accompany any found property, when it was transferred to the Metropolitan Toronto Police Public Property Bureau at 329 Chaplin Crescent in Toronto. If the owner of the property could not be located the property was held for ninety days and then the finder was notified to pick up the article. If there was no response by the finder once notified, the property was disposed of through public auction.

4. The property occurrence reports required that the name of the finder be inserted. This presented a problem because in a majority of cases there was no Indication of the finders name. It was well known that the form could not simply be filled in by the words "unknown". This was unacceptable to the Metropolitan Police Department because the computer used to keep track of the found and seized property was apparently programmed not to accept such designation.

5. The prosecution evidence indicated that a number of officers assigned to this task filled in the space denoting "finder" by inserting their name, the letters OPP, and their badge number. This apparently was acceptable to the computer as the evidence disclosed such forms were not rejected.

6. It was understood by everyone that an officer would not be notified as a finder because he could not claim the property in any event. The evidence of the accused officers was contrary to this procedure in that each had been led to believe that such procedure was not acceptable and two of the accused constables had been instructed by Corporal Mclntyre to fill in fictitious names and not to use their own. Corporal Mclntyrewas not calledto contradict this allegation.

7. The accused officers testified that they used the name of wives and friends and relatives to ensure that the property was not claimed from the Metro Property Bureau. It is clear in the evidence that none of the officers, or those designated as finders on the report, obtained any property or any other benefit from this procedure.

8. The prosecution contends that the discipline code has been breached irrespective of any benefit obtained by the officers. It was further contended that the evidence disclosed that a majority of reports examined by Inspector J. Deslouriers in 1977 (i.e. 46 out of 77) were correct, which suggests that some of the officers had been properly instructed and werable to cope with the absence of finders.

9. It was suggested that a scheme whereby the officers inserted the names of family and friends in order to accommodate the reporting form and at the same time to avoid improper claiming of the article was both contrary to the letter of the Code of Offences and contrary to the spirit because the procedure required the co-operation of a third party and there was no surety of that co-operation and control of the procedure was removed from the officers hands.

10. Defense Counsel submitted that the officers were not guilty of the charge of "Deceit" because they were simply following instructions of a supervisor and to do otherwise would have left them exposed to a charge of insubordination. Further it was suggested that the method used by each of the officers accomplished the needs of the Metro computer and followed the dictates of the Metro Sergeants.

11. It was contended that the officers acted reasonably in following the orders of superiors and that in this instance no intent to deceive had been demonstrated. It was suggested that the offence of "Deceit" required a "mens rea" and that such was lacking in that the officers knew the forms were inaccurate but did not know that it was an offence to submit same. The Supreme Court of Canada decision of Regina vs. Sault Ste. Marie 1978-85 D.L.R. 3rd l6l, was relied on in support of this contention.

12. The prosecution Counsel contended that the accused officers could not rely on the order of Corporal Mclntyre as a defence because it was unreasonable to do so, and that it would have been more reasonable to have sought other instructions. It was urged that the reasonableness of the officers conduct should be examined in the context of the evidence; i.e. (a) each was aware of the Metropolitan Police policy; (b) each was aware of the reasons for the forms; (c) each was familiar with police documents; and (d) each was aware that the form must be accurate.

13. It was conceded by Counsel for the prosecution that the property form of Metropolitan Toronto Police, In the absence of a known finder of lost property, required a fictional entry in the area designated as "finder's name". The use of the reporting officer's name and number in this area while being fictional was contended as complying with the spirit of the form and in no way deceiving. While the charge under Section 1 iv (a) Of the code of offences deals with "Deceit" per se, upon a literal reading of the section there does not appear to be any necessity of demonstrating an Intent to deceive on the part of the officer making the false entry, to warrant a conviction under the section. It would seem that a conviction would follow upon the prosecution simply demonstrating that the officer made the entry in an official document or book and that the officer knew the entry to be false. In the normal course I would not have any difficulty with such a contention but in this situation the simplicity of such rationale would lead to the inclusion of officers who entered their own name and number which would have a patently foolish result.

14. Thus it seems that the intent of the officer making the entry must be examined at least in the confines of these particular cases. In the Reglna vs Sault Ste. Marie case Dickson J. reviewed the law of "Mens rea" very thoroughly and referred to a comment in the Australian case of Proudman vs. Dayman (1941) 6? C.L.R. 563 where Dixon J. stated at 540 "————as a general rule an honest and reasonable belief in the state of facts which, If they existed, would make the defendents act innocent affords an excuse for doing what would otherwise be an offence". This reasoning has been accepted by the Ontario Courts in cases involving strict or absolute liability, see R. vs. Cousteaux 1972 O.K. 250.

15. That two of the officers charged were instructed by a senior officer to make entries similar nature to those made was not denied nor contradicted in the evidence. That a Constable with seniority had advised a third officer to make such entries was not disputed. It is clear in the evidence that none of the officers benefited directly or indirectly by such entries. I suspect that it would be a fair inference to draw from Superintendent J. Gloss's comments, that while he felt there had been a breach of the letter of the law, that he was concerned that the spirit of the law had not been violated.

16. All cases must be judged upon their individual facts and the facts here are quite narrow and peculiar. While I believe that the accused's method of satisfying the forms and the computers needs was somewhat dangerous in that a third persons co-operation was required to avoid wrongful posesslon of articles, and in that the names of friends and relatives were used as finders, which immediately gives rise to suspicion, I do not believe there was intent to deceive. While it may appear in looking back over the officers conduct that their practice was somewhat foolhardy both In making entries and accepting such direction from a superior officer or a fellow constable, in the absence of any proof of their receiving any direct or indirect benefit from such entries, and in the absence of any indication that their actions were slothful and pred cated on avoiding their duty, I would not be prepared to find that their action in the circumstances were unreasonable.

17. In trying to address the spirit of the code of offences as well t as the letter, I believe it to be unfair to blemish an officers otherwise good record with a conviction for "Deceit" on the rather narrow and peculiar facts giving rise to these charges. The appeals are therefore allowed and the conviction and punishment quashed.

DATED at the City of Toronto, in the Municipality of Metro- politan Toronto, this 5th day of March A.D., 1981.

W.T. McGrenere,

MEMBER.