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:
CHIEF OF POLICE WILLIAM BROWN
TOWNSHIP OF INNISFIL POLICE FORCE
DECISION
Panel: Shaun MacGrath, Esq., Chairman
W. Thomas McGrenere, Esq., Q.C., Member
Dr. T. Hockin, Member.
Hearing Date: Tuesday, April 21, 1981.
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
Shaun MacGrath, Esq., Chairman
W. Thomas McGrenere, Esq., Q.C., Member
Dr. T. Hockin, Member
Appearances:
R.N. Clarke, Esq., Counsel for the Appellant,
who also appeared in person.
D.K. Carroll, Esq., Counsel for the Board of
Commissioners of Police.
Hearing: Tuesday, April 21, 1981.
[1]. This is an appeal by William Brown, Chief of Police of Innisfil Township, from the conviction by His Honour Judge Lyon of the major offence of discreditable conduct, in 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, contrary to S. 1 (i) (a) of the Schedule Code of Offences of Ontario Regulation 680/70, made in pursuance of The Police Act.
[2]. It was alleged that Chief Brown, on or about the 29th day of March. 1978, while attending a curling bonspiel, hosted by O.P.P. No. 7, District Headquarters, at the Stayner Granite Curling Club, did consume intoxicating liquor to such an extent as to be intoxicated and did conduct himself in a disorderly manner in the presence of members of other police forces, so as to prejudice the discipline of the Innisfil Township Force and to bring discredit upon the reputation of the said Force.
[3]. The pertinent evidence is summarized in His Honour Judge Lyon's Reasons for Judgment and reads as follows:
"On the day in question, Chief Brown had attended
a Curling Bonspiel hosted by the Ontario Provincial
Police at the Stayner Granite Curling Club.
The Chief, essentially, came as a spectator to
meet and mingle with other police officers who
were there, and essentially to enjoy a day of
relaxation and fellowship, as I believe he put
it.
"There is no doubt that during the course of the
day many of the participants--and 'participants',
of course, were members of various police forces--
including Chief Brown, had beverages of an alcoholic
nature, and this of course was really a part
of the sociability of the day; so in itself there
was nothing abnormal or unusual about the consumption
of alcoholic beverages.
"Deputy Chief Martin testified that, in his opinion,
the Chief was intoxicated, and Deputy Chief Martin
was a police officer with some considerable experience.
On his evidence on one occasion he observed
Chief Brown nearly to fall off a chair. His
evidence was that the Chief's speech was slurred
and that he was boisterous. He testified that
about 5:30 that day he saw the Chief nearly walk
into a door jam and said, in his words, that 'his
walk was staggered.' He testified that he, Chief
Brown, was supported by another police officer. His
testimony was that at dinner that night the Chief
threw a bun at the Crown Attorney, which I am satisfied
happened in a jocular way, and that he may have
tossed a pickle in the direction of the Deputy. These
activities were part of the fellowship and fun of
the occasion, and I attach little if any significance
to them.
"In the opinion of the Deputy, the Chief was disgracing
members of the force who were present.
The Deputy arranged a ride home for the Chief
since he, the Chief, had not brought his own car.
"Sergeant Arthur Mullis was at the Bonspiel; he was
playing cards downstairs in the lounge area. He
described the Chief as being loud and concluded that
he had been drinking considerably. Mullis testified
that he saw the Chief, from time to time, swaying on
the chair, and that on one occasion the Chief took
out his handkerchief and nearly fell off the chair.
He testified that later he staggered up to a group
and held on to someone's arm, and that he nearly
fell backwards at one time. Sergeant Mullis testified
that he, Sergeant Mullis, was disgusted and
embarrassed by these activities. This witness confirmed
the ride home in the car and said that the
Chief was sobering up and he, Mullis, later made a
complaint to the Deputy Chief, and in turn made a
report to the Commission.
"James Mason was a clerk dispatcher with the Force
and testified that he saw the Chief at about 3:30
in the afternoon in the bar room area playing cards
with six to eight people. He described it as a
lively group. He said that Chief Brown was much
more animated than the others, and it was obvious
to Mason that he, the Chief, had been drinking. When
Mason left to go upstairs, Chief Brown was by himself;
he testified that he was hunched over and he was not
speaking, and it appeared to Mason that he was becoming
more under the influence. Later, at the social
hour upstairs, he saw the Chief and said that he was
quite loud and, in his phrase, 'somewhat unsteady,
loud and boisterous at the table1, and he referred
to the tossing of the dinner roll and said that he,
the Chief, was still under the influence. Mason referred
to the Deputy going into the arena to have the
Chief get into the car for the drive home, and that
he, the Chief, was definitely intoxicated.
"Roy Burkett was called by the defence; he is a superintendent
of the O.P.P. He confirmed that the Chief
had been drinking, and said that he had become involved
in throwing buns and pickles in a jocular way.
Superintendent Burkett did not agree that under the
circumstances anything that was done was discreditable
having regard to the social circumstances of the day,
although he was aware that some members of the Innisfil
Force were concerned about its reputation.
"The opinion of Superintendent Burkett was that
Chief Brown was under the influence of alcohol;
that he was slurring his words and that, in his
opinion as a police officer, the Chief's ability
to drive would be impaired."
[4]. The Appellant appeals on the following grounds:
- the learned Judge erred in not ruling that
the charge was beyond the limitation period
set out in The Public Authorities Protection
Act, Ontario, and thereby statute-barred;
- the conviction was against the evidence and
the weight of evidence;
- the learned Judge erred in registering a
conviction when the matter had been previously
dealt with by the local Board of Police
Commissioners.
[5]. For convenience sake, we will deal with the submissions in reverse order to the above.
[6]. We are of the view that the Board of Police Commissioners are not precluded from laying the charges herein, simply because they dealt with the matter earlier in an informal manner. It is significant to note that the Board of Police Commissioners was aware of the incident giving rise to this charge within a few days following the event, however, there was very little evidence as to the extent that the Board was informed of the exact circumstances surrounding the incident.
[7]. As to the second ground of appeal, we are satisfied that the evidence supported a finding by the learned trial Judge that Chief Brown's conduct was such as to be prejudicial to discipline or likely to bring discredit upon the reputation of the Police Force.
[8]. The main thrust of the Appellant's argument was that the Board's right to institute charges against Chief Brown as a result of the March 1978 incident was barred by virtue of the provisions of s.ll of The Public Authorities Protection Act. The section provides as follows:
"11. No action, prosecution or other proceeding
lies or shall be instituted against any person
for an act done in pursuance or execution or intended
execution of any statutory or other public
duty or authority, or in respect of any alleged
neglect or default in the execution of any such
duty or authority, unless it is commenced within
six months next after the act, neglect or default
complained of, or, in case of continuance of injury
or damage, within six months after the ceasing
thereof."
[9]. It was admitted that Chief Brown was not, at the relevant time, in the execution of any statutory or public duty by virtue of his attendance at the Ontario Provincial Police bonspiel. It is, however, contended that because of his status under The Police Act, he has an ever-present statutory duty to act in an exemplary manner or conversely, not to act in a disorderly manner or in a manner prejudicial to discipline, or likely to bring discredit upon the reputation of the Police Force, pursuant to s.l(i) (a) of the Code of Offences, Regulation 680.
[10]. Section 11 of The Public Authorities Protection Act makes reference to a "proceeding" against a person for "any alleged neglect or default in the execution of...any statutory duty." Discipline hearings pursuant to The Police Act have been held to be "other proceedings" by the Supreme Court of Ontario (R. v. Adair, 1971, 2 O.K. 399) . The sole question that falls to be determined here is whether s.l(i)(a) of the Code of Offences imposes a "statutory duty" upon Chief Brown to act in a manner which would not prejudice or bring discredit to the Police Force.
[11]. Section 55 of The Police Act sets out specific duties of the members of police forces, and further states that the members "have generally all the powers and privileges and are liable to all the duties and responsibilities that belong to constables." One of those duties would appear to be a duty of good conduct so as not to prejudice the Force as a whole.
[12]. It is the provision of The Police Act that sets an officer's employment apart from that of any other walk of life. The Code of Offences subjects his conduct to censures beyond those in any other circumstances. While many other persons at a similar administrative or executive level may suffer social rebuke or ostracization for conduct akin to that demonstrated by Chief Brown, it is unlikely that formal disciplinary charges would follow.
[13]. Counsel for the Respondent submitted that the learned trial Judge viewed the Chief's responsibilities to act exemplarily as an obligation as opposed to a statutory duty.
[14]. It was further submitted by counsel for the Respondent that
[15]. to interpret the applicability of s.ll of The Public Authorities
[16]. Protection Act so broadly as to include breaches of the Code of Offences while the officer was "off duty", leads to an absurdity. An example of such interpretation was given, which, if followed to its logical conclusion, would result in an officer avoiding civil liability in a situation where it is patently obvious that no such protection was intended. This reasoning presumes that the officer's conduct may be viewed on only one level. We are of the opinion that the officer's conduct could, depending on the circumstances, be viewed on three levels, i.e., civil, criminal and disciplinary. While The Public Authorities Protection Act may have no bearing on any proceedings arising out of an officer's conduct on the first two levels, it may well have a significant bearing on the third level.
[17]. The charges brought against Chief Brown are pursuant to The Police Act because of a specific breach of the statutory Code of Offences. In order for a breach to exist, there must be a corresponding duty. It is our view that The Police Act contemplates a specific duty on the part of an officer to be of good conduct and not to act in a manner likely to be prejudicial to, or bring discredit to the Force. In our opinion, a Chief, by virtue of his position, has an even greater duty to act accordingly, because he must set the example for all of his subordinates.
[18]. In Re Nicholson and Re S. Brown, the Ontario Divisional Court dealt with the application of s.ll of The Public Authorities Protection Act to matters arising out of The Police Act, and while in each case it was ruled that the provision was not applicable, the Court, by implication, adopted the rationale of the Adair decision. The cases make it clear that proceedings under s.5 of Regulation 680 of The Police Act are subject to the provisions of The Public Authorities Protection Act.
[19]. The Police Act, by s.55, prescribes statutory duties, and by the Code of Offences in Regulation 680, proscribes certain acts. While an officer is not on duty 24 hours a day, it is clear that he is subject to disciplinary proceedings for breaches of the Code of Offences by conduct both "in" and "outside" the course of his employment. It would be inconsistent that The Public Authorities Protection Act applies to only disciplinary matters arising out of incidents occurring in the "course of employment", while being inapplicable to incidents "outside the course of employment." This procedure could lead to many abuses, such as lengthy and unfair delays in disciplinary proceedings, to say nothing of the effect of the impending threat of a potential charge hanging over the head of an officer.
[20]. As indicated above, we are of the opinion that the police officer is under an implied duty to be of good conduct and to refrain from acting in a manner which is prejudicial to discipline or likely to bring discredit upon the reputation of a police force. in the circumstances, we believe that the provisions of s.ll of The Public Authorities Protection Act are applicable to the charges giving rise to this incident.
[21]. The conviction will therefore be quashed and the charge herein will be dismissed as against Chief Brown.
DATED at Toronto this 28th day of April, 1981.
Shaun MacGrath, Chairman
T.Hockin, Member
W.T. McGrenere, Member