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 TREMBLAY GLOUCESTER POLICE FORCE

DECISION

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

Hearing Date: Friday, May 28, 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:

Robert W. McKinley, Counsel for the Appellant, who also appeared in person

Colin D. McKinnon, Counsel for the Respondent

Held: Friday, May 28, 1982

1. This is an appeal by Dennis Tremblay from the conviction made by His Honour Judge K. Flanigan, by Judgement dated the 5th day of January, 1982, sitting as a County Court Judge, designated to hear a charge against the appellant of "Discreditable Conduct", contrary to Section 1, i (a) of the Schedule Code of Offences of Ontario, Regulation 791, made in pursuance of the Police Act, upon which conviction the said Honourable Judge K. Flanigan imposed a sentence of "Loss of five days' leave" and "a reprimand". The facts are not in issue and are fully particularized in His Honour's decision as follows:-

The matter arises out of a situation that arose in October of 1981

Prior to that date and commencing back in November of 1980, or perhaps before, there had been many complaints received by the Chief of Gloucester Police Department in connection with the communications section of the Gloucester Police Department. The communications section is manned by civilian employees of the Gloucester Police Department with the N.C.O. in charge being S/Sgt. de Grandpre. The evidence indicates that in November of 1980, following a conversation between the Chief and a Constable Kirby who was then President of the Gloucester Police Association and three staff Sergeants, a memorandum was sent to the Chief which appears as Exhibit 5 (d) in these proceedings.

Apparently nothing further transpired in a formal way until April of 1981 when an operations brief, prepared by the NCOs of the Gloucester Police Department was submitted to the Chief. This arose out of a request for a meeting by the non-commissioned officers with the Chief, which the Chief agreed to. Subsequent to the request, the NCOs came to the conclusion that it would be better to submit a written brief than to have the meeting. As one officer put it in evidence, he felt that if a face to face meeting was held some people would perhaps be reluctant to say their piece. As a result the NCOs collaborated one with another in relation to their particular expertise and a composite brief, Exhibit 5 (b) was submitted under the heading of "Operations Brief".

The Chief, on July 12th, 1981, replied to that brief in what is now Exhibit 5 (c) in this hearing. In that reply he dealt with various headings in the Operations Brief, and it is clear from the tone of his reply that a considerable degree of unhappiness existed between the Chief and his non-commissioned officers. As a result of receiving this reply from the Chief, no request was made by the NCOs for a further meeting. However, subsequent to that reply of the Chief in 1981, a temporary order making nine adjustments in the routine of the communications section was posted as Temporary Order NO. 7 and appears as Exhibit 7 in these proceedings.

Following that issuance of the Temporary Order, which was to be in effect until October 10th, 1981, on the 29th of September, 1981, S/Sgt. de Grandpre, the staff sergeant in charge of the communications centre, wrote a memorandum to the Chief expressing his appreciation for the changes made and recommending that the matter be continued and that, with a couple of minor variations suggested by him, he felt that the continuance of the Order would be in the best interests of the communications section. He also, in that letter, thanks the Chief for the changes instituted and comments that the working conditions have become a lot easier and with a minimum of complaints from the staff. These Exhibits 7 and 8 become somewhat more important as these Reasons progress.

I should say, at this time, that all members of the Gloucester Police Department with the exception of the Chief and Deputy Chief are members of the Gloucester Police Association and there is a collective agreement in force between the Board of Commissioners of Police for the City of Gloucester and The Gloucester Police Association for the years 1981 and 1982. It appears, however, that all the difficulties that were aired in this hearing dealt with the civilian employees' complaints in the communications section. That is not to say that there were not other matters that were in discussion over the months preceding this instance but they, in all the evidence, seem to come to the fore as the main source of complaint.

In any event the executive of the Gloucester Police Association held a meeting on the 25th of October, 1981, to discuss a course of action to be followed by them. They had arranged a meeting with the Chief for Friday, the 30th of October, 1981, but, however, at their meeting of October 25th they decided on a course of action which was to forward a letter to the Ontario Police Commission, together with the memorandum of Constable Kirby, the non-commissioned officers' Operation Report and the Chief's reply of June 12, 1981, with a covering letter. They intended to send copies of the material to members of their local Board of Commissioners of Police. The covering letter was drafted, and all was in readiness prior to the meeting of October 30th with the Chief. The meeting was held at about 1:30 p.m. No advance agenda was provided to the Chief, although there appears to have been some sort of an agenda prepared by Constable Bart Caron, who was the secretary of the Police Association. In any event, it is common ground that the Chief was not advised in advance as to what that agenda would be.

At that meeting, according to Caron, six matters were discussed which were, generally speaking, a question of the ten hour shifts, the question of the communications section, a matter of increased training to increase the force's morale, the supplying of equipment such as shields for crisis situations and nightsticks for secondary protection to send a member to C.I.S.O. and also to have a member appointed to the drug squad which operates in this area composed of officers from several forces including municipal, provincial and federal forces. It is agreed by Constable Caron, that four of these topics were relatively new, the only items that apparently had been of an on-going discussion were the communications section problems and the question of training.

It became apparent to both sides in the course of this meeting that nothing was going to be accomplished. This was decided long before the meeting ended. The Chief apparently felt that he was not in a position to see to the requests that were made and, in fact, he felt that the meeting was merely a threat when it was pointed out to him that they intended to take this matter further if they did not get satisfaction from him. They did not get the satisfaction they sought and they then put into operation their plan of forwarding the material to the Ontario Police Commission and to the members of the local Board.

Much time and discussion was spent on how and when the local Board received their documents, but I think on the evidence it is clear that they were delivered to the Ontario Police Commission through ordinary mail on Friday afternoon, and that sometime Friday evening the copies for the Mayor and Mr. Whamond were delivered to the residence of Mr. Whamond and according to Constable Caron he delivered the material for the Chairman and the Secretary of the Board to the City Hall where the office of the Secretary of the Board was.

When Whamond finally opened the package that had been delivered to him, or one of the envelopes, he discovered there was no covering letter and he was concerned as to why these documents had been delivered to him in this fashion, He called the Chairman of the Commission, Mr. Clark, who did not receive them, there was a telephone call with the Chief and to Tremblay and subsequently Tremblay returned Whamond's call. When Whamond had inquired as to why this had been delivered in this way to him he was advised that they wanted the Board of Commissioners of Police to know what was going on in the force and he offered to come and discuss the matter with the Commissioner. The Commissioner thinking, rightly so, that it would be improper under the circumstances to have a private meeting at his residence, declined.

In any event, the documents were all eventually turned over to the Chief and on Monday morning, the 2nd of November, the Secretary of the Board, Mr. Meldrum, received the documents and proceeded to act on them. As a result of this action by the Association, the charges against Constable Tremblay were laid.

It should be pointed out, at this time, that pursuant to Section 16 of the Police Act, the Board of Commissioners of Police for the City of Gloucester had adopted Standing Orders which appear as Exhibit 6 in this hearing, and which are issued to each constable as he receives his initial issue of uniform, etcetera, on his joining the force. It was admitted by all the NCOs and constables called that they were aware of the provisions, although perhaps not in as great detail as they should be, of these Standing Orders, and certainly Tremblay who is an experienced officers of some eight years on Napanee Police Force and now some four and a half years on this force, certainly admitted to being aware of these Standing Orders. Of course the charges, in this case, arise out of the schedule to the Police Act and the Standing Orders of the Gloucester Police Force.

In his cross-examination the Respondent, Tremblay, admitted that he was aware of Temporary Order No. 7 of July 9th, which is Exhibit 7 in this hearing, and Exhibit 8 which is the memorandum of de Grandpre dated the 29th of September, 1981. He was aware of both of these documents before the 30th of October meeting and before the material was prepared for forwarding to the Ontario Police Commission.

I might say, at this time, that all of the witnesses called by the Respondent downplayed the importance of Exhibits 7 and 8. Most of them denied knowing of Exhibit 8 prior to this time, but they felt that Temporary Order 7, which they were aware of, did not substantially alter the situation. At best, they felt there were slight, or minor, changes in the communications department. This is interesting because they concede that S/Sgt. Grandpre is a respected member of the Force, that he is also a member of the Police Association and the materials that they selected to send to the Ontario Police Commission contained information that de Grandpre had been involved with.

The Respondent, Tremblay, denies that there was any intentional withholding of this material but he cannot explain why he did not include it with the copies sent to the Ontario Police Commission. The Complainant says that this shows bad faith on behalf of the Respondent, just as having the material prepared before they went to the meeting with the Chief on October 30th, 1981, indicated that they were not prepared to attend the meeting in an attitude that would lead to any compromise. Furthermore, says the Complainant, anyone reading the material that was forwarded to the Ontario Police Commission would have a completely inaccurate view of the situation since they would not be aware of the changes brought about by Temporary Order 7, and the reaction to it by the head of the communications section, S/Sgt. Grandpre, as shown in his memorandum, Exhibit 8."

2. The appeal was presented fully and a number of grounds were advanced on behalf of the appellant in support of reversing his conviction. It was urged, inter alia, that the right of the President of the Police Association to seek assistance from the Commission ought not to be fettered by the threat of a potential charge under the Police Act for so doing.

3. It was suggested that a policy decision is required for the protection of Heads of Police Associations in circumstances such as exist in this matter. Counsel for the respondent did not quarrel with the right of the appellant to seek assistance from the Commission but he vigorously took issue with the manner and timing of such application. It was suggested that the application was premature, that some of the documentation was privileged, and that the documentation, as presented, was misleading in that it knowingly was incomplete and created an unjustified bias against the Chief.

4. I agree that the letter to the Commission was premature and ought to have first been directed to the Board of Commissioners of Police. I also agree that the documentation annexed to the letter was incomplete and portrayed the Chief in a more critical manner than would have been the case had all the documentation pertaining to the issues been submitted. I do have some reservations that the production of the documents annexed to the letter brings any discredit to the Gloucester Police Force even though I am mindful that further publication - 8 - of the Chief's written reply to the NCOs was obviously and justifiably embarrassing to the Chief. Notwithstanding any reservations I have, I would be disinclined to interfere with the decision of His Honour Judge Flanigan for that reason.

5. Most decisions rest primarily on facts unique to the case, but it appears to me that there is an over-riding principle of a policy that must be addressed in this instance. Since the Police Act fixes the Commission with the responsibility of determining the adequacy of a police force and provides, through Section 58, broad investigation powers, any information provided to the Commission which reflects adversely upon a Chief or upon a force, must be viewed in a different light than if such information was simply made public. The receipt of such information by the Commission is in keeping with the mandate of the Commission. If the information is accurate and full and reflects a situation adverse to the force, it may require the Commission to take some further steps at the appropriate time. If the information received is not correct or not fully presented it undoubtedly will reflect poorly upon the person supplying such information. In either case, I do not believe that it was contemplated that the production of such information before the Commission, when advice or assistance is sought, would be viewed as an act prejudicial to discipline, or an act likely to bring discredit upon the reputation of the police force.

6. I believe that the Police Associations should be at liberty to approach the Commission for advice and assistance at any time without fear of prosecution under the Police Act. This must be a matter of policy and to conclude otherwise would be contrary to the spirit of the inspection system recently established by the Commission. Under this system, the Police Association, through its representative, is encouraged to communicate with the Commission's inspector.

7. Apart from any communications that may take place during an inspection, inquiries and complaints through Police Associations have caused the Commission to carry out investigations recently in a number of communities which ultimately lead to changes in the Board of Commissioners of Police or the Force. While the circumstances of the latter are distinguishable from the case at hand, it seems dangerous to create unnecessary barriers to the Police Association approaching the Commission for advice or assistance. I am aware of the danger of persons attempting to use the Commission in a manipulative manner, but this must be balanced against the Commission's role in meeting legitimate needs.

8. I recognize that there are certain areas in which the Commission may be without jurisdiction and other areas where it ought not to intervene until the matter has been dealt with by the Chief of Police or the local Board. This, however, should not mean that the advice or assistance of the Commission cannot be sought without risk of discipline procedures. While the Commission should provide advice and assistance in some cases, it has a corresponding duty to exercise restraint in matters that are brought before it prematurely. In the case at hand, there is no evidence to indicate that the Commission had, in any way, intervened.

9. While Constable Tremblay's failure to apply initially to the Board of Commissioners of Police was obviously a tactical and diplomatic error, and while his manner of producing material to the Commission was imprudent, in light of what I view as Commission policy, I do not think his actions amounted to discreditable conduct within the meaning of the Police Act. The appeal is therefore granted and the conviction is quashed.

DATED at the City of Toronto, in the Municipality of Metrorp olitan Toronto, this 6th day of August A.D. 1982.

W.T. McGrenere, Member