Constable Steven Mousseau v. Metropolitan Toronto Police Force, 1981 CanLII 3042

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 Appeals to the Ontario Police Commission by:

CONSTABLE STEVEN MOUSSEAU METROPOLITAN TORONTO POLICE FORCE

DECISION

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

Hearing Date: Thursday, June 11, 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

CONSTABLE STEVEN MOUSSEAU METROPOLITAN TORONTO POLICE FORCE

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

Appearances:

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

Eric P. Polten, Esq., Counsel for the Respondent, Metropolitan Toronto Police Force. Also present was Inspector Addison.

Hearing: Thursday, June 11, 1981 at 10:00 a.m.

1This is an appeal by Police Constable Steven Mousseau of the Metropolitan Toronto Police from a conviction imposed by a presiding officer, Superintendent Harry Smith, following a hearing held on the 29th day of September, 1980, at 590 Jarvis Street, Toronto, on a major charge of neglect of duty alleged to have been committed by him on August 15, 1979, contrary to Section l(iii)(a) of the Schedule Code of Offences, Ontario Regulation 680/70, made under The Police Act, which conviction was confirmed by the Board of Commissioners of Metropolitan Toronto Police on the 12th day of March, 1981.

The appeal was based on the following grounds:

1. The presiding officer erred in law in concluding that the evidence showed any neglect of duty or inattentiveness on the part of Constable Mousseau.

2. In the circumstances of the case, the fact that one or more youths got past the appellant onto the playing field and that Mousseau's back faced part of the crowd was not evidence of neglect of duty.

3. In the alternative, the circumstances disclosed by the evidence fully justified the manner in which Constable Mousseau carried out his duties.

2The facts giving rise to this incident are relatively straightforward. On August 15, 1979 Constable Mousseau was on paid duty at the Canadian National Exhibition stadium. He along with a number of other officers was present to control the crowds during and following an Argonaut football game. Prior to the game the constables were instructed, amongst other things, to assume a certain position on the field within the last five minutes of play in the football game.

3Sergeant Prior had occasion to speak to Constable Mousseau twice during the last five minutes concerning his conduct. While there is a conflict as to what was said and as to how it was said by Sergeant Prior, there is no doubt that there were two occasions during which Sergeant Prior spoke to Constable Mousseau, Sergeant Prior stated that he observed Constable Mousseau with his back to the crowd and he in turn asked Constable Mousseau to turn and face the crowd because a disorderly had run onto the field. Sergeant Prior again had occasion to speak to Constable Mousseau and said that at this time the Constable was standing at a 45 degree angle to the crowd and had missed a second disorderly who had run onto the field.

4Constable Mousseau denied that he had his back to the crowd during the last five minutes, but did admit to having faced the crowd on a 45 degree angle because he was intent on watching a certain gap in the barriers. The Constable admitted to not seeing a second disorderly run onto the field.

5It was submitted on behalf of the appellant that before the Constable's conduct could be examined, there first had to be a determination of the nature and extent of the duty that he was under at the particular time. Counsel secondly submitted that it was then essential to determine whether or not the officer lived up to that duty.

6The reasonableness of an officer's conduct must be examined in light of the circumstances as they exist at a particular time. An officer is expected to use discretion and judgment in the course of his duties on many occasions. The police officer's discretion or judgment ought not to be examined scrupulously by the benefit of hindsight, but it is essential to examine the circumstances under which the officer exercised discretion or independent judgment to see to what extent discretion was warranted.

7In the circumstances of this case, Constable Mousseau had some experience in crowd control at Argonaut football games. While he had been asked earlier bySergeant Prior to effect a course of conduct which with the benefit of hindsight may have been imprudent, that incident becomes irrelevant when his conduct is viewed at a subsequent time. This is particularly so when a number of witnesses have testified as to what the expectation was of a police officer in the position of Constable Mousseau, and this I particularly so when there is evidence that the Constabl had been given two directives by the Sergeant as to what was expected of him at the particular time.

8I believe that Superintendent Smith took all of the facts into consideration and considered the atmosphere that prevailed at the appropriate time when determining just what the nature and extent of Constable Mousseau's duty was at the relevant time. I believe it is implicit from his reasons that he concluded that an officer in Constable Mousseau's position was required to face the crowd with his back to the field or otherwise he would not be carrying out his responsibilities properly. This duty seems to be clearly depicted by even the witnesses for the defence.

9While counsel spent some time both at the initial hearing and at the appeal suggesting that there is no issue of credibility between the Sergeant and Constable Mousseau, I have some difficulty in accepting that submission in its entirety. I believe that it is implicit in the reasons of Superintendent Smith that he was making a finding that accepted the version of events to a great extent as given by Sergeant Prior. It is apparent that Superintendent Smith concluded that Constable Mousseau had not lived up to the duty imposed upon him under the circumstances and that this was based upon his acceptance of Sergeant Prior's evidence.

10The Commission as an appellate tribunal must b satisfied that the judgment in the initial hearing is supported by the evidence. I am satisfied that there is sufficient evidence to support Superintendent Smith's conclusion. The appeal in the circumstances is therefore dismissed.