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 Ontario Police Commission

by :

SERGEANT ROGER RAMAGE

METROPOLITAN TORONTO POLICE FORCE

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DECISION

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Panel: W.T. McGrenere, Esq., Q.C.

Hearing Date: Friday, November 20, 1981

Hearing Location: Toronto, Ontario

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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. This is an appeal by Sergeant Roger Ramage from his conviction imposed by the Presiding Officer, Superintendent Harry Smith, following hearings held on November 27, 1980, January 6 and 7, 1981 .

2. By a major charge of "Neglect of Duty" alleged to have been committed by him on April 2, 1980, contrary to Section 1 iii (j) of the Schedule Code of Offences, Ontario Regulation 680/70, made under the Police Act, which conviction was confirmed by the Board of Commissioners of Police for Metropolitan Toronto on July 30, 1981.

3. The Appeal is brought on the following grounds:

4. The Presiding Officer erred in law in concluding that the

evidence showed any neglect of duty on the part of Sergeant

Ramage.

2 . In the circumstances of the case, the state of Sergeant

Ramage's health was such that he was too ill to report for

duty on April 2nd, 1980, as scheduled. His failure to

attend was as a result of an excuse which was reasonable.

3. The circumstances disclosed by the evidence justified

Sergeant Ramage's failure to report for duty as scheduled,

notwithstanding that he failed to obtain time off.

4. Although Sergeant Ramage had been consuming intoxicating

liquor on April 2nd, 1980, Sergeant Ramage was unfit for

duty due to illness and could not have reported for duty as

scheduled even if he had not consumed intoxicating liquor.

In the circumstances he was not guilty of neglect of duty.

4. The thrust of the Appeal was to the effect that Sergeant Ramage had a reasonable excuse for failing to report for duty and that the presiding officer erred in failing to accept same in fact,and erred in law in concluding that the prosecution had satisfied the onus of proving otherwise.

5. The evidence for the most part was straightforward and not contradicted although counsel sought to put different interpretations to certain facts.

6. Sergeant Ramage had been charged with alcohol related discipline offences on two earlier occasions and had pleaded guilty. On February 8th 1980, he was admonished by his superior officer for not performing his duties as expected. The incident giving ris to this conviction commenced in the mid afternoon of April 2nd 1980.

7. The evidence discloses that at approximately 2:45 p.m. Sergeant Ramage phoned Staff Sergeant Crichton and requested time off as time owing. Apparently no reason for the request was given and the request was denied. Staff Sergeant Crichton thought that Sergeant Ramage was coherent but thought that he had been drinking and was of the view that the Sergeant, had three hoursto pull himself together and shed the effects of alcohol in order that he could report for duty.

8. Staff Sergeant Crichton testified that he had problems with Sergeant Ramage over the years because of Ramage's alcohol abuse and he felt that it was time to bring the matter to a head. Although Ramage had not come to work under the influence to his knowledge, his work had been deteriorating to a certain extent and the Staff Sergeant felt that it was related to alcohol. It was with this background in mind that the request for time offwas denied.

9. At approximately 3:00 p.m., Sergeant. Ramage phoned Sergeant Palowski at his home and said that he would be working that day and enquired as to the time of the shift

10. At 3:45 p.m. Sergeant Ramage spoke to Sergeant O'Callahan and advised him that he was taking time off even if his request was not granted. Sergeant O'Callahan said that his speech at this time was slightly slurred and he was insistent.

11. At approximately 4:22 Sergeant Ramage called Staff Inspector Pitts at his home to request the day off as time owing. No explanation for the request was given at ail. Sergeant Ramagesounded incoherent on the phone and Staff Inspector Pitts asked Ramage if he had sought permission from his immediate superiorfor time off and he was informed by the Sergeant that he had but permission was denied.

12. Staff Sergeant Clark testified that he had originally received a call from Sergeant Ramage requesting Staff Inspector Pitts home phone number. Later at approximately 4:50 Sergeant Ramage phoned to advise that he was not coming in at this time and he sounded intoxicated and was crying. When Sergeant Ramage was asked if he were ill, he said no, that he had family problems. He was ordered to work and was told upon his failure to attend he would be documented. Sergeant Ramage replied that "I can handle that".

13. At approximately 5:00 p.m. Sergeant Ramage phoned Sergeant Palowski again and advised that he was not coming in to work. Ramage apparently started to mention family problems werekeeping him away but when pressed by Palowski said he wasn't coming in "because I don't want to".

14. At approximately 7:00 p.m. Staff Inspector Pitts and Staff Sergeant Clark attended at Sergeant Ramage's appartment. There Staff Inspector Pitts found Ramage with thick speech, teary eyes, an odour of alcohol on his breath and he was incoherent. The Inspector formed the impression that he was unfit for duty because of the consumption of alcohol. Staff Sergent Clark observed much the same features but he thought there may be more than alcohol involved. He thought that drugs were involved as well. He did not see any evidence of alcohol about the apartment. He asked Sergeant Ramage if he would take a breathaiizer and this was refused.

15. Sergeant Ramage was ordered to appear before Staff Inspector Pitts at 9:00 the following morning. When he attended that morning he appeared sober but appeared to be depressed and in the opinion of the Inspector was unfit for duty. The Sergeant was sent to Doctor Evans who apparently suggested some treatment but Sergeant Ramage told the Inspector that he was going to think about whether or not to take the treatment. I am of the opinion that the foregoing supports a prima facie case by the prosecution.

16. The defense does not really take issue with the majority of facts pertaining to the incident of April the 2nd but strenuously takes issue with the conclusion of the officers as to the reason for Sergeant Ramage's failure to report, for duty. It is contended that at the significant time, i.e., the morning and miday portion of Aprii 2nd, that the Sergeant was so severity depressed that he was incapable of attending his duties irrespective of any consumption of aicohoi. It is futher contended that the evidence of the alcohol consumption at the material time falls far short of that needed for a conviction when viewed with the other evidence as to the Sergeant's deep depression.

17. The evidence relied upon by Sergeant Ramage in this regard came principaly from the Sergeant himself, Mrs. Ramage, Solicitor Adrian Hill, and Doctor J.I. Cooper. Some of the evidence ofthe fellow officers was relied on as well.

18. With respect to Sergeant Ramage's evidence, it was clear that he did not have a great deal of recollection of some events leading up to the charge, but he did say he was down and incapable of dragging himself to work.

19. His wife testified that she felt he was depressed. She had not seen him for some time proceeding the April 2nd incident, but had spoken to him on the phone. She said he had hurt his ankle and was oft work for a period because of this and that his children would take food to him. She felt that he was not able to get out to get alcohol. The facts obviously contradict the latter.

20. Mrs. Ramage recalls speaking to Sergeant Ramage on April the 2nd and she felt, that he was very down and in fact was sick with depression. She is a nurse by training but. it is not clear on the evidence if she used the term depression in the medical sense or in the layman sense.

21. Mr. Adrian Hill Solicitor, and from approximately April 1st, 1979 Sergeant Ramage's landlord observed the Sergeant over a period of approximately five months. He noticed a deterioration in his condition and he too expressed the belief that the Sergeant was extremely depressed. Mr. Hill made reference to observing the Sergeant in four time frames: The first would be in early December 1979, the second around Christmas and shortly after, the third a short while before and leading up to April 2nd, 1980, and the fourth after the Sergeant had received treatment .

22. Mr. Hill describes the Sergeant as being "Straight back, good grooming, forthright in his speech, during the first period. This period obsviously had to be of a very short duration as Mr. Hill went on to describe the Sergeant as seeming " A little strange and a little unfriendly. He seem to have a chip on his shoulder or to be tense about something". Further he says "I began to realize that he wasn't as much tense as he was depressed"

23. Mr. Hill went on to say that it struck him that the Sergeant's "Unusual behaviour was being caused by alcohol". Further he says that "Around Christmas time it seems he was drinking heavily" and later "It seemed to me that he was drinking very heavily". His evidence disclosed that toward the beginning of the third period he was dragging himself into work every day and then drinking afterwards".

24. Then dealing with the third period of observation Mr. Hill says "He hit what I call rock bottom. In that he seemed to be drinking continuously". Mr. Hill was aware that the Sergeantwas absent from work and he felt that he was physically ill and incapable of getting up or standing or talking normally. He went on to say "I know he was drunk but he didn't strike me as someone who was drunk".

25. While Mr. Hill gave considerable opinion evidence, the facts upon which he based that opinion were somewhat scarce or completely absent. He was not however challenged on his observations or conclusions and it, therefore, becomes a matter of how much weight the presiding officer would give to the evidence.

26. Mr. Hill's observations about the Sergeant drinking heavily coincide with the Sergeant's own evidence that two things had occurred in the month of March to cause him to drink more heavily.

27. The observations of Mr. Hill over the period from Christmas time on would seem to be consistent with the observation by the Sergeant's superiors. In that respect the Sergeant was observed to be slow, forgetful, and given to repeating himself and his general overall ability to carry on was deteriorating.

28. Defense counsel urged that the syptoms described by the Sergeant's superiors and fellow officers during this time were consistent with the Sergeant suffering from depression and were not alcohol related because the officers had testified that the Sergeant appeared not to be under the influence of alcohol at work. In light of the evidence of Mr. Hill, there is a very strong inference to be drawn that the Sergeant's problems were indeed alcohol related.

29. In April of 1981 Doctor Gerry Cooper interviewed the Sergeant and his wife and reviewed the contents of the disciplinehearing. His report was filed at the appeal hearing before the Board. In his report he concluded that the depression and not the alcohol was the most significant factor in deterring the Sergeant from reporting for duty on April 2nd. It was vigorously urged that the Doctor had provided the medical opinion which explained the conduct of Sergeant Ramage and supported the contention that the Sergeant failed to report for duty because he had a reasonable excuse.

30. It was submitted that had Superintendent Smith had available the medical evidence of Doctor Cooper that, he may well have come to a different conclusion. Further, that Doctor Cooper's opinion is not challenged under cross-examination nor was it contradicted and therefore the tribunal must accept it as to the condition of the Sergeant at the material time.

31. I do not believe that the presiding officer would have to accept the Doctor's opinion without qualification or reservation on the point in issue. The incident occurred in a very narrow time frame and there is evidence of others much closer to the incident which is contrary to Doctor Cooper's conclusion. In this respect, and by way of example, I refer to the evidence of the defense witness Hill who said the Sergeant was depressed but also said he was drinking continuously during the relevant period.

32. In circumstances of this nature it is up to the presiding

33. officer to give the appropriate weight to the evidence that is tendered. In this instance the report was not available to the presiding officer but it was submitted to the Board on appeal.It undoubtedly must be concluded that the Sergeant has had cause to be upset and medically depressed but I do not think it necessarily follows that the presiding officer or the Board mustfind that at the specific time germane to these proceedings the depression was the incapacitating feature rather than alcohol abuse.

34. Giving the following; a history of alcohol related problems with the force, a separation from his wife because of alcohol abuse, the admonition by his superiors about his deteriorating condition, evidence by trained officers describing him as unfit because of intoxication, and the admission by the Sergeant that he had started drinking in March, a defence witness describing him as drinking heavily and then continuously and as being drunk, his need to spend six days in a detox centre, and his treatment at Homewood Sanitorium for alcohol abuse, I would think that there was sufficient evidence upon which to base a conviction. In order that greater weight might be given to Doctor Cooper's conclusion I would have thought that the Doctor would have been interested in the findings and the history taken by Doctor Evans who saw the Sergeant on April 3rd, and of the findings of Doctor Pond, the treating Phsychiatrist at Homewood.

35. It was urged by Mr. Chercover that persons suffering from the illness of alcoholism should be dealt with differently than those who just happen to breach the Code because of alcohol involvement. In this way the illness could be considered as justification for an officer's failure to perform as expected. In this instance it is submitted that Sergeant Ramage had reached both a physical and mental state whereby he was so ill as to be incapable of reporting for duty let alone performing his duty.

36. I hat Sergeant Ramage had reached that state seems to be without doubt. The perplexing problem is whether the illness of alcoholism should be treated in the same fashion as the illness.

37. This raises the posibility that by treating the occasional alcohol offender in one way and an alcoholic in another way discrimination in the discipline process could take place. Mr. Chercover points out that there are alternatives for dealing with the alcoholic which would be both more suitable and compassionate. I believe that there is a great deal of merit in such an approach, but at the moment this case must be judged within the statutory parameters that exist.

38. Since alcoholic behaviour requires some volition I would not think that it can be treated as an ordinary illness for justifying an officer's conduct unless there were some constraints which could be imposed by the Force. These constraints would be required to control the officer and to ensure that the appropriate steps are taken for rehabilitation. At the moment to be able to suspend the officer the force must be able to charge him under the Police Act. There are undoubtedly other ways the Force can deal with alcoholics but it appears that the only leverage the Force has is through the discipline provisions of the Police Act. Until more progressive steps are introduced with the appropriate checks and balances the Forces have no alternative in issues such as this where they wish to bring the matter to a head other than to proceed by disciplinary charges.

39. The appeal in all of the circumstances will be dismissed.

DATED at the City of Toronto, in the Municipality of Metropolitan

Toronto, this 7th day of December A.D. 1981

W.T. McGrenere, Q.C.,

Member