Widmeyer v. Windsor Police Force, 1981 CanLII 3040

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The Police Act, R.S.O. 1970, Chapter

351, and amendments thereto and Regulations thereunder; and

IN THE MATTER OF an Appeal to the Ontario Police

Commission by:

STAFF SERGEANT CRAWFORD WIDMEYER

WINDSOR POLICE FORCE

DECISION

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

Hearing Date: Wednesday, January 7, 1981, at 10:00 a.m.

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 Staff Sergeant Crawford Widmeyer from the conviction registered by the Presiding Officer, Staff Inspector John latzko on the 4th day of June, 1980, wherein the appellant was convicted on the following charge:

That he did on the 3rd day of April, 1980,

at the City of Windsor, absent himself

without leave from duty, without reasonable

excuse contrary to Section 1, subsection (iii)

clause (j) of the Schedule Code of Offences

of Regulation 680, made under The Police Act,

R.S.O. 1970, Chapter 351, as amended to

July, 1979.

2. Counsel for the respondent, by way of preliminary motion, submitted that the Ontario Police Commission did not have jurisdiction to hear the appeal herein for the following reasons:-

3. The Notice of Appeal is a nullity because it

applies to Count 2.

2. The purported amended Notice is not an amended

Notice but is, in fact, a fresh Notice of Appeal

on Count 1.

3. The purported amended Notice of Appeal was served

outside the time limit in Section 24 of Regulation

680 and is, therefore, a nullity.

4. The Ontario Police Commission has no jurisdiction

to extend the time for serving the Notice of Appeal

on Count 1.

3. To put the matter in perspective, it is essential to understand that Staff Sergeant Widmeyer had originally been charged with both "Neglect of Duty" and "Deceit". Convictions were registered against him on both counts, but the conviction for "Deceit" was quashed on appeal to the Board of Commissioners of Police for the City of Windsor. In the Notice of Appeal served on the Ontario Police Commission on November 6, 1980, the conviction was cited in the preamble above the words "Notice of Appeal". Below that there were particulars of conviction and sentence set out in numerical order. In Item #10, there was a reference to decision on appeal, then opposite Count #1 were the words "Allowed, conviction quashed", and opposite Count #2 the words "Appeal dismissed". In effect, the opposite had happened. An amended Notice of Appeal wherein the references to decision on appeal opposite the respective counts were altered to correct the original transposition. This Notice of Appeal was served on this Commission on January 2, 1981.

4. I am of the view that the original Notice of Appeal is not a nullity. Counsel for the respondent urges that the form of a document, notwithstanding its reference to Count #1 in the so called Style of Cause speaks only to an appeal of Count #2. Count #2 had been quashed by the Board of Commissioners of Police for the City of Windsor on appeal. The Board's decision, as the decision of any appellant tribunal, replaces the decision of Staff Inspector latzko and leaves the record as if that decision had never been made. Thus the logical conclusion of the respondent's contention is to the effect that the appellant filed a Notice of Appeal to a non-existent conviction. This, of course, would be absurd.

Section 24 of Regulation 680 provides as follows:-

Section 24 (1) In the case of a conviction of an

offence, a notice of appeal to the

Commission shall be in writing,

directed to the chairman of the Commission

and shall set forth the conviction,

the punishment imposed and

the grounds on which the appeal is

based .

5. There is no prescribed form for the Notice of Appeal and, indeed, a variety of forms are filed with the Commission. The Notice must set forth a conviction, the punishment imposed and the grounds upon which the appeal is based. I am satisfied that on a fair reading of the original Notice of Appeal that it can only pertain to Count #1. Indeed, there is no other reference in the Notice of Appeal other than the conviction under Count #1. I am of the view that the portion of the Notice of Appeal requiring amendment would at most constitute an irregularity and go to the form rather than to the substance of the Notice of Appeal, and I believe it is within the jurisdiction of this Commission to permit amendments as to form.

6. If I were of the view that the amended Notice of Appeal was, in fact, a fresh Notice of Appeal, I would permit an extension of the time for serving the Notice of Appeal nunc pro tune pursuant to Section 24 (3) of Regulation 680, which states:-

"The Commission may, before or after

the expiration of the time for service

of a notice of appeal, extend the time

for service for a further period not

exceeding thirty days within which

service may be effected."

7. On my reading of the section, the Commission can extend the service of the Notice of Appeal for a further thirty days from the date the application for extension is made. I am of the view that the discretion of the Commission to extend the time for service of a Notice of Appeal is not confined to a period of forty-five days following the conviction. Had the Legislature intended to confine the time to fortyfive days it would have been simple to express such a limitation.

8. A number of authorities were cited in support of the respondent's submission that the Commission was without power to amend the original Notice of Appeal to allow an appeal on another conviction. I have reviewed the authorities and agree that they do, to a greater or lesser extent, support the respondent's contention, but for the reasons given above, I do not believe that they are applicable in this instance.

9. The Judgement of Staff Inspector latzko convicts Staff Sergeant Widmeyer of being absent without leave from duty without reasonable excuse.

10. It was submitted by Counsel for the appellant that:

11. Staff Sergeant Widmeyer had obtained leave from duty in

accordance with recognized customs of the Windsor Department.

2. There was no evidence to contradict the evidence of the

Staff Sergeant that he was ill when he asked for leave

at 7:40 p.m.

3. There was no acceptable evidence that contradicted the

Staff Sergeant's version of his attendance at the Legion

on the night in question.

4. The evidence given at the hearing does not support the

charge.

5. The findings of Staff Inspector latzko do not support

the conviction.

6. The decision is so improper that an appellate body

should review the conviction, reverse the conviction

and establish its own findings.

Counsel for the respondent contends:

1. The evidence and findings do support the conviction.

2. This appellate tribunal should not interfere with

findings of the trier of fact, because they are

supported by the evidence and, where that is the

case, such a venture by an appellate tribunal is not

to be embarked upon lightly.

3. That if the Staff Sergeant did obtain leave from duty

any such leave was vitiated by the conduct of the

Staff Sergeant in going to the Legion and becoming

intoxicated.

11. There is a great deal of common ground in the evidence. It is clear that Staff Sergeant Widmeyer was scheduled to work a shift commencing 11:30 p.m., and did call in and report sick at approximately 7:40 p.m. on April 3, 1980. This apparently was done in accordance with customary procedure. He was observed at the Legion by a number of persons on the evening in question and he, himself, admitted to being there. He did not work the shift as scheduled. He did sign a sick leave certificate. Without exception all witnesses approximated the time of their observation of Staff Sergeant Widmeyer.

12. Mr. Northwood indicated that he arrived at the Legion at approximately 9 o'clock, and he observed Staff Sergeant Widmeyer sitting at a table. He observed beer on the table but did not see Staff Sergeant Widmeyer actually drink from a glass. He made no adverse observations of the Staff Sergeant. He himself had consumed considerable beer prior to his attendance at the Legion. He left at approximately 10:00 p.m., and he believes that Staff Sergeant Widmeyer had left before him.

13. Sergeant Montague attended at the Legion at approximately 9:50 and remained for approximately ten minutes. He spoke to Staff Sergeant Widmeyer briefly and observed him to be jovial, happy and appeared to be intoxicated. He said his speech was slightly slurred and he was boisterous, but he did not smell any alcohol on his breath.

14. Detective Saunders arrived at the Legion at approximately 8:15 to 8:30. He believes he saw Staff Sergeant Widmeyer come into the Legion at approximately 9:15 to 9:30 via the alley door. Staff Sergeant Widmeyer had given evidence that he had entered this door. Detective Saunders did not give any evidence of an adverse nature about the Staff Sergeant's appearance or conduct.

15. Staff Sergeant Widmeyer said that he had taken two 282's at approximately 6:00 p.m. and had tried to sleep. He had suffered earlier in the day from some ailment. He had booked off sick at approximately 7:40 p.m. At the request of his wife, at approximately 9 o'clock, he attended at the Legion to deliver a set of car keys to her. He stayed for a short while, butdenied consuming any alcoholic beverages. He admitted to speaking briefly to Sergeant Montague. He said he left at approximately 10:00 p.m.

16. Mrs. Widmeyer and Mrs. Banks say that the Staff Sergeant attended at the Legion sometime after 9:00 o'clock and stayed only a short time in the range of ten minutes.

17. Mr. & Mrs. Higgins were at the Legion, but at a different part, between 8:00 and 10:00 o'clock in the evening. They denied seeing Staff Sergeant Widmeyer before or after those times, and they eventually joined Mrs. Widmeyer and her friends at around 10:00 o'clock.

18. All of the evidence.with the exception of Constable Perron, indicates that the Staff Sergeant was in the Legion sometime between, approximately, 9:00 and 10:00 o'clock. Constable Perron is the only witness who has the Staff Sergeant present before 9:00 o'clock, and his approximation times was so far out that Staff Inspector latzko would not accept his evidence on the times.

19. Staff Inspector latzko states that he must "must weigh the credibility between the evidence given by (Detective Saunders) and that given by Sergeant Montague, P..C.M.P. Constable Perron and Mr. Northwood", and he rejects the evidence given by Detective Saunders. Detective Saunders evidence really appears to conflict only with the evidence of Sergeant Montague as to his opinion of Staff Widmeyer's state of sobriety in whether he was boisterous or loud. As to Staff Sergeant Widmeyer's conduct at the time Sergeant Montague was present, Detective Saunders said he only glanced at the Sergeant's speaking for approximately ten seconds. Although Staff Inspector latzko states that only two witnesses to give evidence who had not been drinking alcoholic beverages were Sergeant Montague and Constable Perron, there is no indication in the transcript that Detective Saunders was or was not drinking alcoholic beverages.

20. It is difficult to see any real conflict between the Detective's evidence and that of the other witnesses on the issue of times when he and all others are fairly vague in the approximation of same.

21. In the final analysis, the only evidence which is clearly contradictory to Staff Sergeant Widmeyer's declaration of illness is the evidence of Sergeant Montague as to the Staff Sergeant's condition during the few minutes that he observed him at approximately 9:50 on the evening in question. Sergeant Montague's description of the Staff Sergeant's condition is certainly inconsistent with both the evidence of Staff Sergeant Widmeyer and his witnesses. It is also inconsistent with the Staff Sergeant being terribly ill at that time.

22. It was submitted by Counsel for Staff Sergeant Widmeyer that considerable weight should be given to the fact that many witnesses who had more time to observe the Staff Sergeant's conduct differed significantly with Sergeant Montague's conclusion.

23. One very obvious distinction must be drawn between the degree of interest and concern that each of the witnesses would have as to the condition of Staff Sergeant Widmeyer. To that extent, Sergeant Montague was probably the most interested person having observed the Staff Sergeant and then attempting to reconcile what he saw to what he learned later that evening i.e., that the Staff Sergeant Was too ill to work. Mrs. Widmeyer and two of her friends were, of course, in a position to make a similar critical observation, but Staff Inspector latzko discounted their concern, particularly that of Mrs. Widmeyer, about the well-being of Staff Sergeant Widmeyer. The Staff Inspector drew the obvious inference that Mrs. Widmeyer was not terribly concerned about the illness suffered by her husband that evening because she requested his attendance at the Legion for her convenience and demonstrated no urgency in returning to the home after the Staff Sergeant had left the Legion.

24. The trier of fact is in the best position to determine matters of credibility and he is not bound to accept a version of an event simply because that version is supported by a greater number of witnesses. The trial judge's findings are not to be lightly interfered with by any appellate tribunal (the citation Metivier v. Cadoretge 1975 CanLII 2 (SCC), 1977 1 S.C.R. 371). I, therefore, would not be prepared to interfere with Staff Inspector latzko's acceptance of Sergeant Montague's evidence.

25. The matter, however, should not end there. Staff Sergeant Widmeyer's condition at approximately 9:50 or 10:00 o'clock on the evening in question, in the absence of other evidence, may have little to do with the charge under which he was convicted. Section 1 iii (j) of the Code of Offences presumes that an officer may be absent from duty with leave or with a reasonable excuse. The evidence is clear that Staff Sergeant Widmeyer phoned and reported that he was sick and would not be in. There is no evidence that what he did was not in keeping with the standard practice in Windsor. It was submitted in argument by Counsel for the Staff Sergeant that this was the practice and it was not seriously suggested by Counsel for the respondent that such was not the case. Section 14.00 1. of the Windsor Rules and Regulations provide that sickness is one instance where an officer does not require the consent of the Chief or Deputy Chief to be absent.

26. It was submitted that Staff Sergeant Widmeyer attendance and conduct at the Legion vitiated the leave that he had earlier obtained. The logical extension of this submission is that the Officer is under an obligation once he is capable of doing something that is inconsistent with being ill to book in for duty or, alternatively, that the consent to be absent was obtained fraudulently and is without validity from the inception period. The evidence, however, falls short of supporting such a theory. There is no evidence which was accepted that Staff Sergeant Widmeyer was otherwise than where he was before and after the time span, between roughly 9:00 and 10:00 p.m. There is no evidence that the Staff Sergeant's condition was other than what he said outside of the few minutes he was observed by Sergeant Montague. The opportunity was available to determine Staff Sergeant Widmeyer's whereabouts and his condition in the early hours of April 4th when he was originally to be on duty, but this was not done other than in a very cursory and inconclusive manner. Even if the evidence was available to support the finding that the Officer's conduct vitiated the consent, I would think that such evidence was germain to a charge of feigning sickness or wilfully making a false statement to avoid duty.

27. The onus of proving a charge against an officer is upon the prosecution, and even allowing for wide inferences that may be drawn from the evidence at the hearing, I am of the view that the evidence falls short of supporting a conviction under Section 1 iii (j). The appeal is therefore allowed and the conviction is quashed..

28. While it is not essential to deal with the sentence given by Staff Inspector latzko, I cannot help but comment as to its severity. Had the conviction stood, there would be no doubt as to the seriousness of the matter but I could not help but get the feeling that something more was being considered than what appeared in the transcript. This is particularly true when the Sergeant's record was not put in evidence at the initial hearing.

29. I would have thought that a reduction in rank to a Sergeant for a period not longer than one year would have been adequate.

DATED at the City of Toronto in the Municipality of Metropolitan

Toronto, this 20th day of January A.D. 1981.

W.T. McGrenere, Member