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 DENNIS SUTTON CITY OF BARRIE POLICE FORCE

DECISION

Panel: W.T. McGrenere, Esq., Q.C. Hearing Date: Wednesday, June 2, 1982 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.

Appearances: Ted Johnson, Esq., Agent for the Appellant, who also appeared in person. Paul Hermiston, Esq., Q.C., for the Board of Commissioners of Police, and Staff Sergeant F. Nishman.

Held: Wednesday, June 2, 1982

1. This is an appeal by Constable Dennis Sutton of the City of Barrie Police Force, from the decision of the Board of Commissioners of Police for the City of Barrie, wherein the said Board convicted Constable Dennis Sutton on two major charges of "Unlawful or Unnecessary Exercise of Authority", and on December 29, 1981, the said Board imposed a penalty of "Reduction in rank from a first-class constable to a second-class constable for a period of not less than three months".

2. Constable Dennis Sutton appeals both of the convictions and the penalties on the following grounds:

(a) The Hearing Tribunal erred in law in concluding that the procedural errors which formed the substance of preliminary objections raised by the defense were not grounds for dismissal of the charges.

(b) The Convictions were contrary to the evidence and weight of evidence.

(c) The Hearing Tribunal exhibited bias against the accused in their conduct of the hearing.

(d) That the penalty imposed was improper and unduly harsh.

3. The evidence was thoroughly reviewed in the Board of Police Commissioners decision and I do not propose to repeat it at any length. Briefly, the charges against Constable Sutton arose out of an incident which occurred on March 21 at approximately 6:50 p.m. at the five points intersection in Barrie. The complainant, Daniel William MacDonald, a private in the Armed Forces had been consuming beer throughout the course of the day with three friends. Upon emerging from a hotel he began to "howl like a dog". He was advised by Constable Gilchrist to be quiet and move on. When he failed to respond to this suggestion, Constable Sutton, who was on duty but not in uniform, approached MacDonald and led him away from his three friends and into the back of the police cruiser operated by Constable Gilchrist. There is no evidence in conflict as to how the altercation started and how it ended. There was no dispute that MacDonald had been struck in the face twice and photographs were tendered in evidence to support obvious injuries to his face and neck.

4. Insofar as the first ground of appeal is concerned, it is obvious on the face of the record that there were irregularities in processing the charge and indeed that fact was not contested. It was submitted on behalf of the respondent that the appellant had waived any irregularities and had accepted the Board's jurisdiction to hear the charge and in any event the irregularities were minor deviations from procedural provisions and they did not offend the spirit of the statute. I am satisfied that the irregularities complained of do not invalidate the proceedings. The appellant was fully and fairly informed of the proceddings and issues and he had an opportunity to attend and advance a full defence, and in fact did so.

5. As a second ground of appeal it was urged that the convictions were contrary to the evidence and the weight of evidence. The Board of Police Commissioners in the Reasons for Judgment reviewed the evidence at considerable length and based their decision on specific findings of credibility. The Board had an opportunity to assess the witnesses and obviously weighed the evidence of each witness carefully. I am inclined to the same view as the Board for the same reasons expressed in its decision.

6. Thirdly, it was urged that the Board Members exhibited bias against the appellant in their conduct of the hearing. It was suggested that the Board demonstrated its bias, amongst other things, by showing no interest in the fact that the appellant had been injured in the incident giving rise to the charge; that Lieutenant Colonel Bornor in questioning the appellant used the description "vicious assault" when such description had not been used at the hearing by any of the witnesses; that the Chairman of the Board suggested a psychiatric assessment of the appellant when there was no history of conduct on behalf of the appellant to warrant such a suggestion.

7. The charge of bias is a very serious allegation and there is a very heavy onus upon anyone making such an allegation to prove same. There must be clear evidence of a preference or inclination on the part of the tribunal that inhibits impartial judgment. I am of the view that on a fair reading of the proceedings before the Board of Police Commissioners that the Board's judgment was not affected by bias.

8. For the reasons expressed above I dismiss the appeal as against the convictions herein.

9. It was urged on behalf of the appellant that the penalty imposed by the Board was both improper and unduly harsh. It was submitted on behalf on the appellant that he ought not to ha been the subject of any penalty meted out by the Board until after the final disposition of any appeal pursuant to Section 27 of regulation 791. Secondly, it was submitted that the penalty of reduction in rank for the minimum of three months with reinstatement to a first class constable only upon recommendation of his immediate superior was too harsh in all the circumstances. Thirdly, it was urged that the open-ended aspect of the sentence was tantamount to delegating the responsibility of sentencing, in part, to the Chief of Police and senior officers.

10. The immediate implementation of the penalty is contrary to Section 27 of Regulation 791.

11. Where possible, I believe the tribunal imposing a penalty should set the limits of such penalty. In the circumstances, I am varying the punishment of Constable Sutton to a reduction in rank from a first-class constable to a second-class constable for a period of three months.

DATED at the City of Toronto, in the Municipality of Metropolitan Toronto, this 5th day of July A.D. 1982

W.T. Grenere, Q.C., Member