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:
CONSTABLE ROGER ANDERSON
DURHAM REGIONAL POLICE FORCE
DECISION
Panel: W.T. McGrenere, Esq., Q.C., Member
Hearing Date: Monday, October 26, 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
BEFORE: W.T. McGrenere, Esq., Q.C., Member
Apearances:
Barrie Chercover, Esq., for the Appellant, who
appeared in person.
David J.D. Sims, Esq., Q.C., for the Respondent,
and Staff Sergeant A. MacMurray
Held: Monday, October 26, 1981
- This is an appeal by Constable Roger Anderson of the Durham
Regional Police Force from his convictions and punishment
imposed by the Presiding Officer, Deputy Chief Thomas Chambers, following hearings held on the 7th day of A p r i l , 1981, and the 24th day of April, 1981, on major charges of "Neglect of Duty" and "Discreditable Conduct" alleged to have been committed by him on December 23rd, 1980, contrary to Section 1, III (f) and Section 1, I (a), respectively of the Schedule code of Offences, Ontario Regulation 680/70, made under The Police Act, which convictions and punishment were confirmed by the Board of Commissioners of Police for the regional m u n i c i p a l i t y of Durham on the 9th day of July, 1981. The grounds of appeal argued appear in the notice of appeal as follows:
- The Presiding Officer erred in law in concluding that the
evidence disclosed acts of neglect or discreditable conduct
on the part of Constable Roger Anderson.
- In the circumstances of the case, there was no admissable
evidence to warrant a finding that Constable Anderson had
seized a vial of hash oil on December 23rd, 1980.
Consequently, in the circumstances, there was no evidence
on which to base a conclusion that the appellant was under
a duty to report a seizure. Without that duty, there was
no evidence on which to justify a finding of neglect.
S i m i l a r l y , without evidence of a duty to report, there was
no evidence on which to base a finding of discreditable
conduct as charged.
- In the circumstances disclosed by the evidence, prosecution
of Contable Anderson was discriminatory and in bad faith in
that several officers identified as being present acted in
the same way as did Constable Anderson. None of those
other officers were disciplined in any way.
- In the circumstances disclosed by the evidence, the finding
of conversion in support of the conviction for
discretitable conduct was wrong in fact and in law.
The incident g i v i n g rise to these charges against Constable Anderson commenced in the late evening of December 23, 1980. I company with Constable Kerr, Constable Anderson attended at an establishment in response to a call. While there he obtained a v i a l of what appeared to be hash oil. There was a discussion between Constable Kerr and Constable Anderson about possible charges arising out of the possession of the vial of hash oil but it was decided that they would not pursue charges. The vial was placed in Constable Andersen's top coat and was not the topic of discussion for the balance of their shift.
Constable Ross was having a party at his residence on the evening of the 23rd and early hours of the morning of the 24th. A number of officers had been invited i n c l u d i n g Constables Kerrand Anderson after they finished their shift at approximately three o'clock in the morning. Both officers went to the party and joined approximately six fellow officers at that time. The party had been well underway when they arrived and there is evidence of the consumption of spirits in keeping with the festive season.
Approximately an hour or so after Constable Anderson had arrived at the party there was some discussion about drugs. He then produced the v i a l and demonstrated same to his fellow officers. An attempt was made to put some of the contents on a cigarette It was at first impossible but one of the other officer suggested that the vial be heated. That seemed to achieve the purpose and the contents were used upon a cigarette. There is varying evidence as to how many partook of the treated ci garette.
The essence of the charges against Constable Anderson were
(a) he failed to record the seizure of a substance
believed to be a narcotic and failed to follow the
appropriate procedures relative to the policy and
routine order of the Durham Regional Police, and
(b) he converted this property to his own use, and thereby
brought discredit upon the reputation of the Durham
Regional Police Force.
It was suggested by Counsel for the appellant that the evidence fell short of supporting the conclusion that the v i a l that was produced by Constable Anderson was, in fact, the vial that had been seized earlier in the evening. While Constable Anderson had admitted that it, in fact, was the same vial when he testified before the Board, it was urged that he ought not to be convicted from his own evidence when he was testifying as to penalty.
I would conclude on the balance of probabilities that the vial produced at the party was, in fact, the same v i a l that had been seized earlier in the evening. In this regard, it seems clear to me on the evidence of Constable Kerr that it would be difficult to draw a conclusion to the contrary.
Constable Kerr testified that the vial that was seized appearedto be the same as the one taken by Constable Anderson earlier inthe evening. He had smelled the odor and believed it to be hash o i l . He also testified that Constable Anderson told him that itwas the vial that had been seized earlier.
There was some suggestion by the appellant's Counsel that Constable Kerr did not know that the vial had, in fact, beenseized from another person. Constable Kerr did say, however,under cross-examination that he and Constable Anderson discussedwhether or not the person would be charged. Since that is theonly evidence that pertains to any reference of the charge, or the basis of the charge, the reference must apply to the seizure of the oil and the irresistable conclusion is that Constable Kerr did in fact know that the vial was seized. ConstableP h i l l i p s gave evidence that he had overheard someone suggest that the v i a l had been obtained earlier in the evening. The basis of that suggestion obviously had to come from either Constable Anderson or Kerr.
Constable Kerr stated that he observed four or five of his fellow officers demonstrating interest in the container and observed an officer other than Anderson heating same.
The evidence of the other officers disclosed the involvement of fellow officers in varying degrees but it is unclear as to precisely who was involved other than Constable Cormack. This Constable admits to h o l d i n g the cigarette after it had been treated and 1 ighted .
It is noted that one of the officers commented about the quantity of oil being so large. There was a suggestion that this was the largest amount of hash oil seen by a number of the officers. This of course raises the question of why the laying of charges perhaps would not have been pursued more vigorously and also as to why there would be no notation of the seizure in either of the officer's logs.
Sometime subsequent to the occurence a report was made to one of the superior officers. The officer in turn indicated that he would not act upon it until there was something put in writing. He requested the various officers involved to provide a written statement. Insofar as Constable Anderson was concerned, he ordered that the officer produce a statement. It was suggested by the appellant's Counsel that the superior officer demonstrated discriminatory practices against Constable Anderson at this stage.
Leaving aside any mitigating circumstances for his conduct, it appears that Constable Anderson failed to follow a routine order and is thereby neglectful of his duty. Having used or destroyed seized property, he has misappropriated the property and in part converted same to his own use.
It is obvious that the presiding officer did not accept Constable Anderson's explanation for his failure to follow the routine order nor did he find any m i t i g a t i n g circumstances in Constable Anderson's conduct in producing the oil at Constable Ross's party. It is also clear in the trial officer's reasons, that whatever weight he gave to these incidents in assessing the penalty, that the incidents were looked upon as part of a series of wrongs. The other wrongs being referable to other charges.
The latter of which were dismissed on an appeal to the Board of Commissioners of Police.
The Board dismissed the charges of discreditable conduct and neglect of duty arising out of the alleged manner in which the Constable came into possession of drug paraphernalia because there was no evidence as to precisely how he came to have possession of same. An explanation was given as to why he had possession of the paraphernalia, but there is no indication whether this was accepted by the Board or whether the Board drew any adverse inference against the Constable when they dealt with the penalty.
At the time the Board dealt with the matter, there was a charge of possession of marijuana outstanding against Constable Anderson under The Narcotics Act. This charge was subsequently dismissed before this appeal was heard before this Commission. Similarly, a charge under the police act arising out of Constable Anderson's possession of marijuana was withdrawn following the dismissal of the Provincial Court hearing.
This raises a question as to whether the presiding officer or the Board drew any adverse inferences against Constable Anderson as a result of the evidence disclosing that marijuana was found in his home and his thus being charged with possession of marijuana under The Narcotics Act. There is nothing in the Board's reasons to suggest same.
The manner of the conversion of the property to Constable Anderson's own use in this instance has given me some concern. One wonders why an officer, who is bent on converting the oil to his own use, would produce it in the company of at least six fellow officers. Was his use of drugs so open and notorious that he could flaunt the drug before his peers? While evidence on the other charges may give rise to some suspicion of his drug use, the rather clumsy way the oil was handled at the party and the fact that another officer had to suggest that the oil be heated counters this suspicion somewhat. Was the episode one of experimentation brought about by very poor judgement, judgement that was perhaps dulled by consumption of alcohol?
If the Board's decision to dismiss was simply based on the extent of the Constable's breach of the rules and misappropriation, were the Board members in any way discriminating against Constable Anderson while turning a blind eye to the conduct of other officers.
It is obvious that Anderson displayed a complete lack of judgement and put a number of officers in a compromising position and a situation of real conflict. After the hash oil was produced at the party, Constable Anderson was really in no greater legal position than was the man that he restrained with handcuffs earlier in the evening for having possession of the same v i a l . The v i a l was produced in the presence of at least a half a dozen fellow officers. Anderson was not rebuked, nor even cautioned by anyone. Indeed, some of the officersassisted in making the oil usable or at least experimenting with it. Constable Wiles said in a statement, "Several officers were i n v o l v e d with smoking the oil:".
It was not until the experimentation had matured somewhat before the realization of the magnitude of what was happening took hold. At that point and only then did any form of sensure take place. In that regard the officers simply vacated the premises with what appears to have been embarrassing dispatch. The incident g i v i n g rise to these charges and the subsequent events have raised a great many questions in my mind:
Can Constable Anderson's conduct on December 24th be
examined in the absence of subsequent events i.e.,
the possesion of marijuana and drug paraphernalia?
If not, do those events colour the conduct of Anderson?
Was there a true intention on Anderson's part to convert
the property?
Does the conduct of the other officers temper the
severity of Anderson's conduct?
Should the other officers have been charged with similar
offences or neglect of duty?
Should the other officers have been ordered to give
statements of their conduct as was Anderson?
By ignoring the other officer's conduct and failing to
charge them, has the discipline process created an
appearance of bias?
To what extent, if any, did the other charges affect the
minds of the Board members when assessing the penalty?
Has Anderson received a fair disposition of the charges
against him in accordance with the rules of natural
justice.
Natural justice requires that the person should know the nature of the accusation made against him, that he be given an opportunity to state his case, and that the tribunal act in good faith. It is not only required that the tribunal act in good faith but there must not be an appearance of any bias. Mr. Justice McGillivray in dealing with this aspect in R. vs Peterborough Board of Commissioners of Police said "There is no more important p r i n c i p l e observed in our courts than that every man is entitled to an unbiased hearing, and that every tribunal ajudicating upon the rights of an i n d i v i d u a l must be free from suspicion of partiality."
This has been a very troublesome case because on the one hand there are aspects which give rise to allegations of apparent bias while on the other hand the presiding officer accommodated the accused by adjourning the discipline hearing on one charge until the charge under the narcotic act had been disposed of. W h i l e trying to demonstrate fairness I believe obstructions may thereby have been created which prevented the full disposition of the prosecution's case and perhaps allowed considerations to take place that ought not to have been part of the deliberating process.
I believe that the charges under the d i s c i p l i n e code should be proceeded with irrespective of any outstanding and related criminal or q u a s i - c r i m i n a l proceedings which have arisen out of the same circumstances. Alternatively, all of the charges against an officer should be adjourned until the other outstanding charges have been dealt with.
I am mindful of the time delay surrounding this matter and the inconveniences to both parties, but I am also mindful of the time honoured prescription of our courts that justice must not only be done but it must be seen to be done.
I am, therefore, very reluctantly returning the matter for a re-hearing. Because of the concerns that I have expressed above, I would suggest that the provisions of Section 17 and 18 of Regulation 680 (new - Regulation 791) of the Police Act be consi dered.
DATED at the City of Toronto, in the Municipality of Metropolitan
Toronto, this 1st day of December A.D., 1981
W.T. McGrenere, Esq., Q.C., Member