ONTARIO CIVILIAN POLICE COMMISSION

Constuble Bruce A. Williams

W.T. McGrenere, Q.C., Member

Appearances: N. Peel for the Appellant C.E. Fleck, Q.C. for the police force

Also in appearance: The Appellant Inspector G. Merwin

Appeal of conviction - conviction of damage to equipment for driving cruiser off of second story parking area

Evidence – onus - prima facie case – manner of happening of accident planed onus of explanation of constable - board was not satisfied with explanation - fresh evidence, not previously available, corroborating appellant’s explanation introduced on appeals.

This proceeding arose as an appeal by P.C. Williams of his conviction. As confirmed by the board, on a major charge of damage to police equipment as defined in then s.l (viii) (a) of the code of offences, Police Act Regulations, R.R.O 1970, c.680, Sched., following which conviction of a reprimand and forfeiture of two day leave was imposed.

Williams was charges with wilfully or carelessly causing damage to police equipment after he drove a cruiser off of the second story of a parking area in a building which he was inspecting.

The appellant claimed that a problem with the brakes caused the accident. The vehicle was inspected after the accident and no damage was found which would account for the malfunctioning of the vehicle at the time in question. Before the accident, the floor mat in the vehicle was torn.

After the hearing and before the present appeal, new evidence arose when a garage employee drove the car after repairing it and found. At one point, when the brakes were applied, that the vehicle accelerated instead of slowed. The problem arose due to the torn the break. This new evidence and other supporting evidence was introduced on the appeal.

Held: Conviction quashed.

The manner of happening of the accident clearly placed an onus of explanation upon the constable and the board was no satisfied that the explanation given by the constable discharged that onus. The new evidence introduced provides considerable reinforcement to the events as described by the appellant. In the absence of wilful conduct on the constable’s accident. The board was not prepared to find wilful conduct and indeed there appears to be no evinced apart from the physical happening, to support such a finding. Nothing in the personal record of the appellant is consistent with the type of carelessness required in such a marked departure as occurred here. It is difficult to conclude that the mat in the vehicle did no cause the collision.

Reasons by W.T. McGrenere:

This is an appeal by constable Bruce Williams from the decisions of the Board of Commissioners of Police for the City of Sarnia of the 13^th day of May, 1980. Wherein they found that he did carelessly cause waste, loss and damage to a City of Sarnia, Police Department cruiser, registered as No. NYK 453 for 1979, that is the property of the City of Sarnia Police Department, contrary to s.l(viii) (a) of the Schedule Code of Offences of Ontario. Regulation 680.70, made in pursuance of The Police Act of Ontario.

The facts giving rise to this charge are really not in issue. On May 7, 1979, at approximately 7:00 am., Constable Williams was in Front Street near Lochiel when he drove the vehicle off a second story. The vehicle dropped some considerable distance and was extensively damaged. A diagram, depicting the area, as well as a number of photographs taken shortly after the incident, were introduced in evidence.

It was a common ground that before the accident had taken place, the floor mat in the vehicle was in a torn and abnormal state. There experienced with the vehicle prior to the accident. This difficulty was of a nature not dissimilar from the described by Constable Williams. There was evidence that the vehicle had been inspected after the accident and there was no apparent damage to the brakes, nor was there any damage which would account for the malfunctioning of the vehicle at the time in question.

The manner of the happening clearly placed upon Constable Williams on onus of explanation. The Board of Commissioners of Police for the City of Sarnia were not satisfied that the explanation given by Constable Williams discharged that onus.

There was a devolvement between the time of the trial and the appeal, which is of some significance. With the consent of both counsels, new evidence was adduced through two witnesses who did not testify at trial.

Mr. Wayne Guzzie, an employee of Jerry’s Car Salon, testified that he had been repaired following the incident giving rise to this charge. Interestingly, he experienced a similar problem to that testified to by Constable Williams. Mr Guzzle had only driven the vehicle a short distance when he encountered difficulty with stopping the vehicle. He had accelerated quickly to a speed greater than 30 m.p.h. and was in the process of reducing the speed when the vehicle, instead of slowing, accelerated. He described how it took some considerable effort to overcome the problems and bring the vehicle to a stop. He said the incident took approximately 10 seconds, during which time he tried to clear the mat from under the brake and over the accelerator. He described in some detail how the mat, which was in a number of pieces, had interfered with the normal operations of the brakes and accelerator. He further noted that after the incident, the mat fell back in what might be described as a normal position. He was sufficiently concerned about the condition of the mat that he advised his wife not to move the car and he told the dealer when he returned the vehicle after washing and cleaning it. When he advised a representative of the dealer about the unsafe condition of the mat, he was told that it was being replaced in any event.

Mr Guzzie’s evidence was not known to the prosecution until a few minutes before this appeal started. The evidence was not known to the defence until July or August of 1980. The manner in which Mr. Guzzie became involved is a little unusual and requires comment. Apparently, he had originally read of the conviction of Constable Williams in the local paper. He had the impression that the constable was convicted because he could not prove beyond a doubt that he was not to blame. Mr. Guzzle felt that although his experience with the same vehicle might offer an explanation, he was not sure it was sufficient to change matters, so he did nothing further. Sometime later, he heard the incident being discussed on an open-line radio show conducted by Peter Henderson. Mr. Guzzie had the impression that the officer was going to be mistreated, so he contacted Henderson. Henderson, in turn, ultimately put him in touch with Constable Williams, Guzzie did not know Williams before, and is quite independent of the situation. I was impressed with Mr. Guzzie’s evidence and the manner in which he gave it. His recitation of the facts and his concern for what might be an injustice has a ring of credibility to it.

Inspector George Merwin testified that he had picked up the vehicle in question from the dealer on May 30, 1979 at some time early in the evening. He had road-tested the vehicle in a manner which he described as thorough and to his satisfaction. He did not experience and problems with the breaking, or for what matter, any other problems concerning the vehicle. He thought that the floor mat was new at the time the vehicle was picked up., he would have returned it because it was supposed to have a new mat installed. He indicated that he was familiar with defective mats in other cars and he expressed his dissatisfaction with the inadequacy of same. I accept that inspector Merwin thoroughly tested the car without encountering any problems and further that the floor mat at that time was new. The irresistible inference to be drawn is that the original mat had been replaced after Mr. Guzzie returned the car and prior to Inspector Merwin picking it up.

The manner in which this incident occurred was described as bizarre by counsel for constable Williams and his description is certainly apt. The bizarre happening in the absence of some compelling explanation, left the Board of Commissioners of Police with no alternative but to find Constable Williams guilty of carelessness. The onus of a reasonable explanation had not been met by Constable Williams.

While the evidence of Mr. Guzzie does not introduce an entirely new element into this matter, it does provide considerable reinforcement to the events described by Constable Fraser. The evidence of Mr. Guzzie further establishes, without doubt, that the floor mat was capable of interfering with the braking and acceleration of the vehicle, and that such interference could occur quite rapidly.

The scenario of Constable Fraser and Mr. Guzzie differ very slightly. Mr. Guzzie was able to see how the mat was imping on the accelerator and to describe the situation in some detail. The experience of these gentlemen differs somewhat from Constable Williams in that both had been moving at some speed before encountering a problem. Constable Williams had started from a feed stop just prior to encountering the problem he described.

There is, however, a significant common thread in the experience of each, and that each applied the brake and felt the vehicle accelerate.

Council for the prosecution maintained, inter alia, that Constable Williams failed to discharge the onus placed upon him because he did not offer any explanation about the rug interfering, and as well, his explanation was incredible given that the vehicle was starting from a stopped position before problems were encountered.

When one considered the fact that the vehicle had only travelled approximately 10 m. to 11 m. before being launched from the second storey, and the short period of time that such distance could be traversed, it is very difficult to conclude that the same significant problem did not contribute to the incident in the absence of wilful conduct on Constable Williams’s behalf. The board of Commissioners were not prepared to find the latter, and indeed, there appears to be no evidence, apart from the physical happening, to support such a finding.

It is to be noted that whatever may have occurred, there is no evidence of a jackrabbit start by Constable Williams. It is also of note that there is nothing in the personal record of Constable Williams which is consistent with the type of carelessness required in such a marked departure as occurred here.

I find that the problems experienced by Constable Fraser and Mr. Guzzie are much too coincidental to that experienced by Constable Williams, to be ignored; I find it very difficult to conclude that the mat in the vehicle in question did not cause the incident.

In all of the circumstances, I am allowing the appeal and quashing the conviction.

DATED this 13^th Day of March, 1981.