ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The Police Act, R.S.O. 1980, c. 381, and

amendments thereto, and Regulations thereunder, and

IN THE MATTER OF an Appeal to the Ontario Police Commission

by:

CONSTABLE DALE ALEXANDER LAMONT

ONTARIO PROVINCIAL POLICE FORCE

DECISION

Panel: W.T. McGrenere, Esq., Q.C.

Hearing Date: Friday, August 20, 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:

William J. Carroll, Esq.,

Counsel for the Appellant.

Michael Bader, Esq., Counsel for

the Respondent.

Held: Friday, August 20, 1982

1. This is an appeal by Provincial Constable Dale Lament from his conviction of a charge of "Discreditable Conduct", contrary to Section 1 (a) of the Code of Offences, regulation 791, made under the Police Act. The conviction was registered by Deputy Commissioner R.A. Ferguson on April 26, 1982, and the appellant was sentenced to resign within seven days, and in default thereof, to be summarily dismissed from the force.

2. The charge arises out of a conviction for dangerous driving, which conviction was upheld in the Court of Appeal. The facts giving rise to the conviction are clearly set out in the decision of the Court of Appeal and are adopted as follows:-

On March 18, 1980, when he was off duty, Lament,

without prearrangement, went to the house of one

Mike Fagan, a friend and also a member of the

O.P.P. He arrived about 4:30 p.m. There he

met two other members of the force, Tom Ritchie

and Robert Whitehorn. During the afternoon and

early evening the friends talked. The appellant

had either three beers or a scotch and a couple of

beers. Mrs. Fagan prepared a light meal for the

men. The appellant, Ritchie and Whitehorn left

Fagan's house about 9:30 or 9:50 p.m. There was

nothing unusual about the appellant's speech, walking

or behaviour when he left. There is no suggestion

he was impaired. His home was bout 1 1/2 miles

away. To reach his home he drove westerly on Katimavic

Drive.

Katimavic Drive was a paved road 8.5 meters wide.

There was no marked center line. At the scene of

the tragic accident the shoulders were approximately

2 meters wide on each side of the road. The evening

of March 18, 1980, was clear and cold. Visibility

was good and the road surface was dry. There were

no obstacles on the road. There were no street

lights or houses on the north side of the road but

the south side was built up and there were street lights

along the south shoulder. There is no doubt that

the lighting along the south shoulder was poor, somewhat

below the standard required by the subdivision

agreement.

At about 9:30 p.m. on March 18, 1980 Mr. James Holt

was a passenger in a car driving in an easterly

direction on Katimavik Drive. He saw a car parked

on the gravel on the south side of Katimavik facing

easterly. The engine was running and the headlights

were on. He saw a person lying in front of the car.

There was no one around at the time. He stopped and

walked back and saw that the body was that of a young

girl. She had socks :on but no footwear. He saw a boot

on the embankment to the east of tne scene and a handbag

and contents on the road some considerable distance

to the east, perhaps six carlengths.

A Mr. Tucker was also driving on Katimavic Drive.

When he saw cars parked on the south shoulder he too

stopped and walked back and saw the body on the road

and Mr. Holt returning from attending at a house to

call the police. A few minutes later Mr. Ritchie

arrived, indicated he was a policeman, showed his badge

and advised that it was his friend that was involved

in the accident.

Mr. Ritchie stated that he left Mr. Pagan's

home after the appellant and it took him two

or three minutes to drive home. He just got

his jacket off when the appellant knocked on

the back door. Mr. Lament was very upset

and in an emotional state. He said that he

had struck someone on the road and believed

that the person was hurt quite badly. Mr.

Ritchie drove the appellant to the scene which

was some 100 yards from his house.

There is no doubt that Mr. Lament was extremely

distraught. He mentioned something about a

jogger and a flash of someone running before

the accident.

The deceased was Nicola Farrer who was 15 years

old at the time of the accident. She had left

home with a young friend at about 9:30 p.m. on

March 18, 1980, carrying an Adidas bag, and perhaps

a handbag. A bus driver, Mr. Warren Landry,

was driving a route that went along a portion of

Katimavik Drive. He remembered that on his

9:15 p.m. run a young girl wearing a long dark

coat got on his bus but could not remember where

she got off. There was a bus stop on Chimo Drive

near the south side of Katimavik Drive. There

was also one on the north side of Katimavik Drive.

The accident took place to the west of that portion

of Katimavik Drive that the bus driver followed on

his route.

Dr. Hillsdon-Smith examined the autopsy report, a

sketch of the scene of the accident and certain

photographs taken at the time of the autopsy. He

was of the opinion that the abrasion and bruising

behind the left knee of the young girl was consistent

with it having been struck by the bumper bar.

That was the primary impact injury. The prime

cause of death was the dislocation of the cervical

spine which was in the nature of a whiplash injury.

That injury would cause the body to go limp which

in turn might have meant that the body was carried

on the hood of the car for some distance. The

secondary impact would have caused the fractured

skull in the left parietal area.

The doctor was of the opinion that the girl

was struck from behind. He also expressed

the opinion that the girl and the car were

moving in the same direction at the time of

the impact. The appellant's car was damaged

on the left front side. Fibers matching those

of the coat the deceased was wearing were found

in the two damaged portions of the car on the

extreme left front side. The damage is clearly

indicated in the pictures of the motor vehicle

which were filed as exhibits in this case.

The vicinity of the accident scene is shown on

Exhibit 7. Although it is not to scale relative

measurements are set out. Starting on the north

side of the road commencing some 30 meters east

of the resting place of the body of the deceased

after the impact, there was found some of her

personal effects. They were what one might

expect a 15 year old girl to carry, coins, cosmetics,

a button from her coat, a name tag, a

purse and Adidas bag. All these are located

on the south shoulder, although the button may

have been just on the edge of the paved portion

of the highway. Her left boot was 9.7 meters

north and 1.2 meters east of the personal effects.

The only articles found on the north side of the

road were a round perfume cap and a right boot which

was located some 30 meters west of the body.

Significantly, just west of the personal effects

on the south shoulder was found a piece of plastic

lens from the appellant's car. Still further

west but still on the south shoulder were found

another piece of plastic lens and green body filler

from the appellant's car. One piece of plastic

lens was found on the north side of the road at a

point west of the body where the car apparently

made a U-turn. There was a tell-tale trail of

anti-freeze left on the road from the appellant's

car. It started at a point 6 meters south of

the north edge of the edge of the paved portion

of Katimavik Drive. That is to say it started

well in the south portion of the road or east

bound lane of the road. It then ran in a north

westerly direction off on to the north shoulder,

back across to the road and to the point where the

car eventually stopped, facing easterly beside the

body. The testimony was that a leak from the

radiator of the anti-freeze would usually commence

shortly after an impact.

3. Counsel for the appellant submitted that Inspector Hodgson the officer who signed the charge sheet herein, was not authorized within the meaning of the provisions of Regulation 791 of the Police Act and that the charge sheet was, therefore, a nullity. The operative sections relied on are as follows:-

Section 38.-(1) The Commissioner may designate a

Deputy Commissioner, an Assistant

Commissioner, or any other officer

of the rank of Superintendent or

higher, who may exercise the power

and perform the duties of the Commissioner

in the hearing and disposition

of charges, provided that

on a plea of not guilty to a major

offence a Superintendent shall refer

the matter to the Commissioner who

may, subject to subsections (2) and

(3) hear the case himself or designate

a Deputy Commissioner or an

Assistant Commissioner to hear the

case against the person charged.

Section 40.-(3) The charge sheet shall be signed by

the Commissioner or an officer designated

by him and shall show the date

upon which it is so signed.

Section 41.- Any constable or other officer may

lay a complaint before the Commissioner

or any officer designated

by him under section 38, alleging

an offence in accordance with the

Code, and the Commissioner or

designated officer shall consider

the allegations in the complaint

and, where he considers the allegations

so warrant, he shall sign the

charge sheet.

4. Counsel submits that these are almost identical in wording to the provisions of Regulation 791 that are applicable to municipal forces, namely Sections 3, 5 (3) and 6. These latter provisions were considered by the Divisional Court in Cyr vs The Vanier Board of Commissioners of Police (July 3, 1980 - unreported). The Court referred the matter back to the Board of Commissioners of Police for a factual determination, but added the following:-

5. "....we desire to say for the assistance of the Board, that pursuant to Section 6 of the Regulation, it is essential that the person who, under Section 6, considers the allegation in a complaint (whether that person be the Chief of Police or an officer designated by him under the Section) must be the person who signs the charge sheet. Further, it is open to a Chief of Police to designate for the purpose of Section 6 only, a person who meets the description in Section 3. The provisions of Section 5 (3) do not extend or alter the description of Section 3 but are designed to cover the situation not only where the Chief of Police is the person who has considered the allegations and therefore must be the person to sign the charge sheet, but also the situation where the Chief has designated another officer under Section 6 to consider the allegations and that person is the one who must sign the charge sheet".

6. Counsel for the appellant submitted that the provisions applicable to the Ontario Provincial Police should be construed in an identical fashion in keeping with accepted rules of statute interpretation and in support of such a proposition, he relies on the following:-

"According to the familiar rule of legal

construction (the same) words should, if

possible, receive the same construction in

both subsections".

(Maxwell Interpretation of Statutes,

pages 56 and 57, and Wolfe Company vs

The King, 1921, Volume LX iii, S.C.C. 141).

"It is, at all events, reasonable to presume

that the same meaning is implied by

use of the same expressions in every part

of an act".

( Giffels vs The King, 1951, O.K. 651)

"...it is an elementary rule that construction

is to be made of all the parts together and not

of one part only by itself".

(Maxwell 12th Edition, page 58).

7. Counsel for the respondent contends that Section 40 (3)

8. of Regulation 791 provides an alternative route to

9. Section 41 in the administrative step of signing the charge sheet and that the Commissioner can designate any officer to sign under Section 40 (3) and he is not constrainedin the same way as provided under Section 41 to designate only an officer of the rank of Superintendent or higher.

10. It is suggested that the word "officer" in the context of Section 40 (3), Regulation 791, is very broad and applies to every officer appointed by the Lieutenant Governor in Council, pursuant to Section 46 (3) of the Police Act. It is suggested that an O.P.P. officer is distinct from any other officer because of the unique appointment, and thus, Section 40 (3) should be interpreted differently than Section 5 (3) of the regulation. This interpretation would have the effect of providing a dual route for processing and signing charges against O.P.P. officers. I have some difficulty with this suggestion because the word "officer" is used in Sections 38 (1); 40 (3) and 41 in the general sense, but limitations as to which officer may be designated are applied in Sections 38 (1) and 41. It appears to me that Section 40 of the regulation contains provisions for the various formalities of processing the charge sheet, whereas Section 41 contains the provisions for determining if a charge is to be laid.

11. I do not believe that there is a dual route that can be followed in laying a charge. The Divisional Court in Giles vs Halton Regional Police Force (1981) 33 O.K. 666, dealt with Section 6 of Regulation 791 as it applied to municipal police forces. This section, as indicated earlier, is comparable to the provisions applicable to the O.P.P. in Section 41. The Court held that the complaint against an officer must be in writing before a charge can be laid and this would only be consistent with proceeding under the provisions of Section 41.

12. It was further suggested by Counsel for the respondent that if Inspector Hodgson was not authorized to sign the charge sheet pursuant to Section 40 (3) that he could sign it on behalf of the Commissioner or designated officer simply as an administrative task. Since the act of signing was purely administrative then such duty could be delegated in accordance with recognized administrative law.

13. There was no evidence in the record as to how Inspector Hodgson came to sign the charge sheet. Under the provisions of Section 58 (7) of Regulation 791, I allowed Counsel to outline the procedure followed by the O.P.P. in processing the charge sheet. In this regard, Counsel advised that the O.P.P. had a Discipline Committee, composed of three officers designated pursuant to Section 38 (1) who would review the complaint, consider the allegations and exercise the discretion to proceed with the charge or not If a charge was to be laid the decision was communicated to Inspector Hodgson and he would simply sign the charge without exercising any discretion.

14. Counsel for the respondent contended that the delegation to sign the charge sheet was purely administrative and did not offend the maxim "Delegatus Non Potest Delegare" and in support he relies upon a review of the applicability of the maxim by Professor Willis in the (1943) Canadian Bar Review, 257, and specifically the following:-

"The fact that the authority named in the

statute has and retains a general control

over the activities of the person to whom

it has entrusted the exercise of its statutory

discretion does not, therefore, save

its act of so entrusting to him the discretion

from being 'delegation' and so

falling within the ambit of the maxim.

If, however, the authority exercises such

a substantial degree of control over the

actual exercises of the discretion so

entrusted that it can be said to direct its

own mind to it, there is in law no delegation

and the maxim does not apply".

15. There are many cases cited in the article, but none apparently deal with provisions which appear to be as specific as those set out in Section 41 of Regulation 791.

16. I accept for the purposes of the disposition that Inspector Hodgson did not exercise any discretion. The fact that a Committee, composed of persons designated under Section 38 (1) exercises the discretion under Section 41, would not contravene the provisions of Section 41, but if the dictates of Giles vs Halton Region and Cyr vs The Board of Commissioners of Police are to be followed, I believe it is essential that one of the designated officers, who is satisfied as to the allegations in a complaint, must sign the charge sheet. In Giles, Galligan J. had this to say:-

"The power of one police officer to try another

is not derived from Common Law or from any general

enactment. It is an exceptional power derived from

specific statutory authority. It follows, therefore,

that legislative conditions by which that power may be

exercised must be strictly complied with".

17. In Regina vs Harrison (1976) C.C. O.L.R. 661, Dickson J. said:"Although the general rule embodied in the phrase 'Delegatus Non Potest Delegare' is that discretionary power given by a statute must be exercised personally, this rule may be displaced by the language, scope or object of the particular administrative scheme .......". In this instance, the language and the object of Section 41 are both very specific. I do not believe that the Regulation contemplated any further delegation than is set out in Section 38 (1).

18. While it is difficult to observe where any prejudice has been caused the appellant, I do not believe that that aspect is relevant to the issue in this matter, as was the case in Giles; the issue is purely a legal one.

19. It is my opinion that Section 41 has not been complied with because Inspector Hodgson was not the person designated under Section 38 (1) of the Police Act, the charge sheet is, therefore, a nullity. The charge is, therefore , dismissed.

20. Notwithstanding the conclusion that I have reached above, I wish to record my comments on the penalty in the event that this matter should be reviewed by the Court.

21. Counsel for the appellant contended that notwithstanding the findings of Deputy Commissioner Ferguson, the penalty administered was too severe and inconsistent with Constable Lament's good record and that the evidence did not disclose any reason why the Constable would have problems carrying out his duties.

22. An officer is set apart from the public because of the authority his position commands, and by the very nature of his calling he must live up to greater expectations, even in his off-duty hours. It is required that he demonstrate a code of conduct that is consistent with his position.

23. An ordinary citizen would be expected to face both criminal and civil sanctions for wrongfully causing the death of another, but a police officer faces additional sanctions because of his calling. He must stand a test of his fitness to continue as a police officer. In this latter respect he was found wanting by Deputy Commissioner Ferguson. It is obvious that the Deputy Commissioner was attempting to weigh carefully the public interest against the private interest of Constable Lament.

24. I am not sure that in trying to strike a balance between the public interest and the private interest of Constable Larnont, that the latter must suffer the loss of his career as a police officer. The event was tragic and no penalty administered by any tribunal can remedy the loss to the deceased's parents. Constable Lament has undergone criminal proceedings, and probably has undergone, or will undergo, civil proceedings and, in any event, will have t live with the memory of this tragic event. If he were an ordinary layman, the matter would probably end there.The officer's conduct in the absence of any explanation to the contrary, and the subsequent criminal convictionsare certainly discreditable within the meaning of the Code of Offences. There is scant evidence as to Lament's consumption of alcohol and what is available does not indicate what role it played in the tragic event. It is clear that the officer must have made an error in getting into his car, or while operating his car, or both, but in either event hewas guilty of a serious error in judgement.

25. The consequence of his error in judgement obviously is a major factor in the punishment to be administered, but I do beleive that other criteria play an important role as well. The officer's record must be examined to see how such serious conduct weighs against his prior conduct. The following comment by Deputy Commissioner Ferguson would seem to put the officer's record into proper perspective:-

"It's obvious that he has been a good officer.

His marks in Police College were exceptionally

good. There are a lot of very good comments

made by people, whom I know and whom I hold in

high respect and I don't think there is any

question about his background prior to this".

26. His Honour Judge J.D. Nadelle in giving sentence had this to say:-

"... there is absolutely nothing one could call

detrimental in his background. He is, I find,

a law-abiding, hard-working, conscientious family

man and well-respected in the community. I

find that he is not the type of person who is

ever likely to appear in Court again, thus,

rehabilitation is not a factor in this sentence.

The accused simply does not require this."

27. He has demonstrated remorse, and it is to be noted that Mr. Justice Corey of the Court of Appeal in upholding the conviction against the Constable expressed the hope "that the tragic incident, so clearly regretted by the appellant, will not result in a serious setback to his career."

28. The punishment administered against the Constable under the Police Act must serve not only as a penalty for him, but as well a warning to other officers. There must be a clear indication to the public of how serious such conduct is viewed by the policing authorities, but there also must be an indication for the good of the morale of other officers, that a one time demonstration of human frailties on their part will not necessarily lead to a termination of their career. An officer fired from his position bears a stigma. He is not like any other tradesman and will experience great and perhaps insurmountable difficulty in obtaining employment in policing. Taking everything into consideration I am not satisfied that Constable Lament's ability to carry on effectively as a police officer is at an end. I would, therefore, allow the appeal as to penalty.

29. The Constable has undoubtedly been embarrassed and humbled and, according to his Counsel, has lost approximately $9,000.00 to date. Under the circumstances, I would think the reduction in rank from a first-class constable to a third-class constable, with the attendant reduction in pay, for a period of eighteen months would be reasonable.

DATED at the City of Toronto, in the Municipality of Metropolitan Toronto, this 15th day of October A.D. 1982

W.T. McGrenere, Esq., Q.C.