Guy v. Ontario Provincial Police, 1981 CanLII 3035

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The Police Act, R.S.O. 1970, c.361 and amendments thereto and regulations thereunder;

AND IN THE MATTER OF appeals to the Ontario Police Commission by:

ONTARIO PROVINCIAL POLICE CORPORAL THOMAS EDWARD NOEL GUY, #1605

DECISION

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

Hearing Date: Wednesday, March 18, 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

1. This is an appeal by Ontario Provincial Police Corporal Thomas Edward Noel Guy from his convictions of discreditable conduct in that he did, while a member of the Ontario Provincial Police Force, and without the consent of the Commissioner of the Ontario Provincial Police, engage in another occupation or calling contrary to s.61 of Regulation 680, made under The Police Act, and s.l.i(h) of the Code of Offences contained in the said Regulation, by Assistant Commissioner J. S. Kay, on the 21st day of November, 1980 as confirmed by Harold H. Graham, Commissioner of the Ontario Provincial Police on the 27th day of November, 1980.

2. The facts giving rise to the charges were really not in dispute. The first charge arose out of an incident wherein Inspector R. J. Crowley discovered a brochure advertising the Appellant's snow-removal business. Upon being questioned by Inspector Crowley, the Appellant readily admitted to carryin on the business under the name of Birt's Snow Plowing. The Appellant was co-operative and provided information requested by Inspector Crowley. The Appellant had not sought approval to carry on the snow-removal business as is required by s.61 of Regulation 680 because he did not think that it was applicable. For that matter, he gave evidence that he really did not understand the operation of s.61.

3. Subsequent to the Appellant being charged and while he was off duty for medical reasons which were certified by a medical practitioner, the Appellant was observed to be conducting a driveway sealing business. He was observed on two separate days conducting this business. On the one date, he was observed to be handing out estimates of the cost of doing prospective customers' driveways. On the following date, he was observed in the process of actually applying a sealant to a driveway. Evidence was also adduced that he had advertised his business of driveway sealing in a local newspaper. He had also produced 1,000 business cards, but very few of them had been handed out at this point.

4. It was suggested that the business had not been profitable and that this should be a factor in determining whether, in fact, it was an occupation. I do not believe that much turns on that suggestion, as it is obvious that it was Corporal Guy's intention that the business succeed and an obvious effort was being made in that direction.

5. Counsel for the Appellant, in his Appellant's Statement, referred to a number of issues, but the main thrust of his submissions were twofold:

1. that Corporal Guy's conduct was not an "occupation or calling" within the meaning of s.61, and

2. that if the Corporal's conduct is an "occupation or calling" within the meaning of s.61, then such conduct is permitted by the terms of the memorandum of understanding between Her Majesty the Queen in Right of the Province of Ontario and the Provincial Police Association Incorporated.

Submission 1

6. It was submitted by counsel for the Appellant that an occupation or calling is the principal business of one's life, a person's vocation or trade, the business which a person follows to procure a living or obtain wealth, a person's office or position. The evidence establishes that the Appellant's principal business is that of being a police corporal; the vocation or profession in which the Appellant customarily engages is that of a police corporal and the office or position that he holds is that of a police corporal. It therefore cannot be said that the Appellant is "engaged in another occupation or calling."

7. Counsel for the Appellant relied on a number of dictionary definitions to define the meaning of "occupation or calling." A number of reported cases were cited concerning the interpretation of the word "occupation", but each dealt with the interpretation of the word within a specific statute.

8. Of the definitions of "occupation" cited, the Oxford Dictionary provided perhaps the widest definition, and included simply "employment." Many persons are involved in diverse employment and are known to various segments of the public through different occupations.

9. Assistant Commissioner W. Lidstone stated that the objects of s.61 of the Regulations were:

1. to avoid conflicts of interest;

2. to avoid competing with the private sector, and

3. to prevent any possible detrimental affects on the image of the Police Force by officers while off duty.

10. Since entitlement of an officer to carry on another "occupation" is governed by the Commissioner's approval, the objects of affording that approval cannot be ignored in interpreting the meaning of "occupation."

11. I believe that counsel for the Appellant seeks to attribute too narrow a meaning to the word "occupation." To place such a narrow interpretation to the meaning as submitted would, in effect, render s.61 meaningless.

Submission 2

12. It was submitted that if the Appellant did engage in another occupation or calling, that such use of his free time is now permitted by the terms of the me morandum of understanding which provided that, by Article 6.07(b):

"This article shall not eliminate or prohibit the existing co-operative practice under which a member of the Force provides advice to his Supervisor as to his proposed whereabouts while off duty, but there shall be no restriction on the free time of an employee that is not in accordance with this memorandum of understanding."

13. The purport of this submission is to the effect that the memorandum of understanding supersedes and is paramount to s.61. I do not believe that that is the intention of the parties negotiating this memorandum, and I believe that such an interpretation would be inconsistent with the provision of the Code of Offences in Regulation 680.

14. A police officer has responsibilities and demands beyond ordinary employment, and is set apart from other employees in many respects, one of which is that the officer is subject to the provisions of The Police Act. This is a term of the officer's employment and I believe that The Police Act and the Regulations supersede any agreement.

15. Each case must be considered on its own facts. The facts in this matter, in my view, support a finding that Corporal Guy was in fact carrying on "another occupation." His exposure in the business as it existed at the time of the charges and his obvious pursuit of greater exposure, could certainly offend the objects of s.61 of Regulation 680. I do not believe that Assistant Commissioner Kay erred in rendering the convictions.

16. The appeal as to both convictions is therefore dismissed.

DATED this 19th day of March, 1981.

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