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 ARTHUR BLAIR CAMPBELL ONTARIO PROVINCIAL POLICE FORCE
DECISION
Panel: W.T. McGrenere, Esq., Q.C.
Hearing Date: Friday, August 6, 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
This is an appeal by Provincial Constable Arthur Blair Campbell from his conviction of "Neglect of Duty" in that he did without lawful excuse,neglect or omit promptly and diligently, to perform a duty as a member of the Ontario Provincial Police Force, contrary to Section 1 (c) (i) of the Schedule Code of Offences contained in Regulation 791, made under the Police Act, by Superintendent R.W. Burkett, on April 14, 1982.
The charge against Constable Campbell arises out of an incident which took place on Highway 7, just west of Creditstone at approximately 9:45 to ten o'clock on September 27, 1981.
Apparently, at the hour of 9:45, or thereabouts, on the evening in question, the witness, Michael Mario Savo, was operating his tow truck in an easterly direction on Highway 7 when he observed a motorist outside of his vehicle, which, at that time, was facing in a westerly direction on the north shoulder of Highway 7 and appeared to be partly in the ditch.
He stopped his tow truck in the passing lane and signalled appropriately, and while stopped there, observed that the motorist was near or in the trunk of his vehicle.
When the tow truck stopped, the motorist observed him and came towards him. The tow truck operator cautioned the motorist not to come closer as there were vehicles approaching and same would be a hinderance to the motorist. Mr. Savo got out of his vehicle and walked across the roadway and took the motorist by the arm to, more or less, restrain him from walking on to the highway. He spoke briefly to the motorist but did not appear to obtain any meaningful response. He then cautioned the motorist to remain by his car and he, Mr. Savo, returned to the tow truck and arranged for th police to be called. His reference to the dispatcher was that he had a possible impaired. Mr. Savo remained with the motorist until Constable Campbell arrived at the scene. This was within a very few minutes.
While at the scene with Constable Campbell, Savo observed that the officer attempted to ascertain from the motorist where he was coming from and where he was going to, but it was his evidence that the motorist was incapable of advising at that time. Mr. Savo also indicated that the motorist was incapable of or failed to give his name verbally, and he had to produce his identification. Mr.Savo believes that he told Constable Campbell that "the man is pissed".
Shortly after the officer had been at the scene, he approached Mr. Savo and advised him that he was going to give the motorist a chance and asked Mr. Savo to take him home. For reasons of his own, Mr. Savo was not prepared to do that, but he was prepared to arrange for another tow truck to come andassist in this way. There was a discussion about the price of removing the gentleman. Mr. Savo was notclear as to what the exact price was, but it appears that it was $65.00.
Mr. Savo, in his evidence, also indicated that he observed that there was a passenger in Constable Campbell's policecruiser who had attended at the scene, but the passenger never got out of the vehicle. Mr. Savo was cross-examined in some detail, and it was suggested to him that his memory may be impaired because he had noted certain observations as to the condition of the motorist which were not set out in a statement that had been given to Inspector Wilkinson in his investigation. Mr. Savo admitted that it did not appear that he had set out in the statement all observations. Mr. Savo did say, however, that he had noted in his statement, and this was consistent with his evidence given before this hearing, that the motorist was not fit to operate his vehicle. Mr. Savo was also tested as to his credibility about his own personal criminal record and about difficultiesthat he personally had with the police. He admitted that he did have a record, although he could not specifically recall what the conviction was for, or the convictions were for. He also admitted that he did have problems with theYork Regional Police, but there was no suggestion that he had any personal grudge against Constable Campbell and, in fact, his comments would appear to be to the contrary, save and except the obvious that must follow from the fact that he did make this complaint.
In summary, Mr. Savo's evidence is to the effect that he
did smell alcohol on the motorist's breath, which he believed to be beer. He did find that his eyes were bloodshot and that he was not walking in an ordinary fashion. He formed the impression that he was impaired. Mr. Savo said that he has had experience with impaired drivers in the past, but that he certainly felt that the officer was better qualified to determine whether or not the motorist was impaired. The witness, Paul Mannicci, gave evidence that he was called tothe scene of this incident at approximately ten o'clock or thereabouts. I believe he put it somewhere between ten and eleven. He said the weather was dry. I don't believe he made any other observations about the weather. He did indicate as to how he was to take the car under tow and made the observation initially that the motorist was staggering and falling all over. Put under cross-examination, he admitted that the motorist had only fallen out of the vehicle, that is the tow truck, once, and that this may well have been because the tow truck, itself, was situated on an angle. He also made the observation that the motorist mumbled and seemed to have a slurry speech.
I believe that the most significant part of Mr. Mannicci's evidence really follows the event on Highway 7. In thisregard, he states that he had driven from the scene of theincident to Bathurst and St. Clair, which took him approximatelyone hour. During that time, he was aware of the smell of whiskey. He was aware that his passenger, who was the motorist, was mumbling. But, more importantly, he indicated that he had a difficult time getting the man to identify where he lived.
I do not have any doubts that Mr. Mannicci must have had an address at that point, but I accept his evidence that he was not sure where exactly the motorist did live.
I accept his evidence that the motorist was in a state where he ought not to have been given his keys at the time that he was let off, but the motorist insisted.
Constable Campbell, in his evidence, indicated that he had had a great deal of experience with impaireds and was a qualified breathalizer operator, and I do not doubt for a moment his qualifications.
He indicated that on the night in question he had received a call from a cousin who was having matrimonial difficulties, and, as a result of this call, arrangements were made whereby the officer would meet with the cousin at Highways 400 and 7, at some time after 9:30 in order that the cousin could have the advantage of whatever counsel Constable Campbell could give to him. Constable Campbell received the call concerning the incident in question at approximately 9:55 p.m., and he attended the scene at 9:59.
When he attended at the scene, he observed the motorist's vehicle facing in a westerly direction on the north shoulder of Highway 7 with the right front wheel imbedded in the soft shoulder to a point of two to three inches. The vehicle was stopped in such a way that the left rear tire was off the ground to a similar distance of two or three inches.
Constable Campbell indicated that he believes he asked the
tow truck driver, whom he referred to as "Mike", whether the
motorist was "pissed", but he either does not believe or does
not recall that he received any answer. He indicated that he spoke to the motorist and asked where the motorist had been, and was advised that he was coming from the Board of Trade Golf Club, and that he had been golfing earlier that day, and that he, the motorist, was exceedingly tired. The officer formed the impression that the motorist had a pale complexion, was not flushed, that his eyes were not bloodshot, and, although he appeared to be very tired, the officer did not think that the motorist was impaired. Constable Campbell indicated that he was told by the motorist as to where he lived, and that he was on his way home.
The officer then made arrangements with Mr. Savo to have a tow truck tow the motorist's vehicle home and, in conjunction with same, to give the motorist a ride to his residence. He did this because he felt that the motorist was likely too tired to operate his vehicle safely, and the officer was concerned about the possibility of the motorist being stopped or involving himself in an incident of careless driving.
Constable Campbell admitted that he had his cousin with him, but there was no urgency in the meeting with his cousin, that there was no urgency in his subsequent duty of serving the summons, and that neither of these factors played any role in his decision to let the tow truck driver deliver the vehicle in question and the motorist to the motorist's residence. Constable Campbell admitted under cross-examination that he either did not ask the motorist whether he had been drinking or, if he did, he failed to note it. He did not conduct any tests, such as having the motorist walk a distance, nor did he use his alert system. He did not believe that any of these tests or checks were necessary because he did not believe that the motorist was impaired. The officer stated that the evening was cool, windy, and that he required a parka at that time. He did not recall the dress of the motorist, but he does recall the motorist requesting his jacket after the motorist had been placed in the tow truck.
It was urged by counsel for the Respondent that the officer was guilty of neglect of duty because he had carried out the procedures in a rapid and superficial fashion and not in a sufficient manner to conform with the standard expected in this situation. He stated that the officer's suspicion ought to have been aroused to the point where he should have made further inquiries and taken further steps to pursue his duty in respect of this motorist by virtue of a number of occurrences. Firstly, that he had been sent to investigate a possible 234, acknowledged to be impaired driving. Secondly, the motorist's car was on the shoulder of the road in somewhat of an abnormal fashion. Thirdly, that the motorist had advised the officer that he had been golfing all day, and the fact that It had been dark for approximately three to four hours ought to have raised the suspicion that the motorist was doing something other than golfing during that time.
Counsel for the Respondent suggested that the complaint having been made that Constable Campbell ought to have inquired as to the observation of the tow truck driver. Counsel also suggested that the mere facts above would prompt an inquiry as to whether or not the motorist had been drinking.
And lastly, the officer had the alert system available to him and ought to have at least gone that route. In defence of the officer's position, counsel for the Appellant urges that the officer, because of his experience, which is acknowledged, is entitled by virtue of the O.P.P. orders, to exercise judgement, and even goes further that in accordance with the O.P.P. orders, he is entitled to exercise discretion.
It is, of course, very difficult to argue against the latter two submissions, and officers are expected on a daily basis to exercise discretion and do so, throughout the course of their shift, daily. In this respect, however, I believe that any judgement that is to be reached by an officer must take into consideration all of the steps that are appropriate to obtain the information upon which the judgement can, in fact,be made.
While I recognize that there is a very real difference of opinion between individuals as to the state of impairment of any other individual, I believe that there must be a standard in the community applied in cases of this nature where you have two lay witnesses testifying as to the state of inebriation, and that test must be a common-sense test.
I am of the opinion that there were a number of aspects to the incident, as submitted by counsel for the Respondent, that ought to have aroused the suspicion of Constable Campbell, and ought to have required him to make further inquiry before releasing this individual.
I do not believe, in all the circumstances, that the officer took all the necessary steps to make the appropriate inquiries, and I am of the opinion that that amounts to neglect of duty in these circumstances. I am, therefore, compelled to uphold the conviction.
DATED at the City of Toronto in the Municipality of Metro politan Toronto, this 24th day of September A.D. 1982
W.T.McGrenere,
Member