Joseph Kerr v. Metropolitan Toronto Police, 1981 CanLII 3036

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 appeals to the Ontario Police Commission by:

JOSEPH KERR, POLICE CONSTABLE 1955 IDENTIFICATION BUREAU, METROPOLITAN TORONTO POLICE

DECISION

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

Hearing Date: June 29, 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

Appearances:

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

A. H. Cohen, Esq., Counsel for the Respondent and Inspector Addison also appearing.

Hearing: June 29, 1981

1This is an appeal by Constable Kerr from his conviction and sentence imposed by the presiding officer, Superintendent Harry Smith, following a hearing on the 27th day of November, 1980 at 590 Jarvis Street, Toronto, on a major charge of unlawful or unnecessary exercise of authority alleged to have been committed by him on August 15, 1980, contrary to s.l(vii)(b) of the Schedule Code of Offences, Ontario Regulation 680/70, made under The Police Act, which conviction was confirmed by the Board of Commissioners on March 26, 1981.

2The facts giving rise to this incident, briefly stated, are as follows.

3On Friday, August 15, 1980, Constable Hogg and Constable Sekulich delivered one Gary Madill to Headquarters for the purpose of finger-printing him. This took place at approximately 3:25 a.m. The finger-printing was done by Constable Kerr. Madill, during the course of finger-printing, had made offensive and abusive comments to Constable Kerr and at one point had suggested that he might do physical harm to Constable Kerr. Constable Kerr, in his evidence, indicated that he was not fazed by this and simply reiterated that Madill best not start anything or he would be dealt with directly. After the finger-printing had been completed, Constable Hogg was in the process of putting the handcuffs back on Madill, and in fact had shackled his left wrist. During this time, Madill had continued with his offensive comments and was struck in the face by Constable Kerr with an open hand, causing Madill to step back, at which time Constable Kerr struck Madill twice more across the face with his open hand. Constable Hogg then stepped between them and the handcuffing was completed, with the assistance of Constable Sekulich.

4Constable Kerr, in his evidence, indicated that he had only slapped Madill twice. Apart from this discrepancy, the evidence of Constable Hogg was not contradicted. There was, however, a distinct difference in the impression created by Madill on both Constable Hogg and Constable Kerr. It is obvious from Constable Hogg's evidence that she did not observe any occurrence on the part of Madill which would give rise to Constable Kerr striking him. On the other hand, Constable Kerr, in his evidence, indicated that he felt that Madill had left the impression with him that Madill was about to assault either Constable Kerr or Constable Hogg. Constable Kerr came to this conclusion as a result of observing Madill'seyes and the manner in which he turned. He gave evidence as to extensive experience in dealing with mentally ill persons and other prisoners. He said that he struck Madill a second time because the man was still, in his opinion, out of control and he had to re-gai control and ensure that no assault took place.

5Counsel for the Appellant appealed the conviction on the following grounds:

1. the presiding Officer erred in law in concluding on the evidence that there was either unlawful or unnecessary exercise of authority in all of the circumstances;
2. in the circumstances of the case, the presiding Officer failed to take into account that Constable Kerr was entitled to use reasonable force to defend himself against what he anticipated to be an imminent assault and that the force used was no more than was necessary in the circumstances

6It was urged by counsel for the Appellant that on all the evidence, P.C. Kerr was entitled to conclude that there were reason able and probable grounds for thinking that either he or Constable Hogg were in danger of being assaulted if he did not act promptly. He further urged that an officer is entitled to a measure of discretion in these circumstances and that the test of whether or not an assault against an officer is imminent, is, to a considerable measure, a subjective test.

7He further urged that once it is shown that there were reasonable and probable grounds for Constable Kerr to believe that an assault was about to take place, that he was entitled to react in an anticipatory manner. In this latter respect, counsel for the Respondent readily admitted that the officer was entitled to defend himself by an anticipatory action, if there were reasonable and probable grounds to believe an assault was imminent. The sole question to be determined in this matter was whether or not therewere reasonable and probable grounds to lead Constable Kerr into believing that an assault was about to take place. Superintendent Smith indicated that he had weighed the evidence and had found, on the weight of all the evidence, that such was not the case. He specifically accepted Constable Hogg's evidence in this regard.

8I believe that the evidence supports the conclusion reached by Superintendent Smith. The appeal against conviction is therefore dismissed.

9The Appellant appealed the sentencing in this matter. Constable Kerr's record and the comments of others involved in this matter would indicate that he is a fine officer. Superintendent Smith appears to have considered this factor. It is imperative that officers practise restraint, no matter how extreme the circumstances may be.

10Superintendent Smith viewed the matter as serious in assessing the penalty as a forfeiture of four days off. In all of the circumstances, this does not seem to be unreasonable. The appeal as to sentence is therefore dismissed.