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 Commisson by:
CONSTABLE KENNETH RICHARD WILSON
ONTARIO PROVINCIAL POLICE FORCE
DECISION
Panel: W.T. McGrenere, Esq., Q.C.
Hearing Date: Monday, May 17, 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:
W. Michael Temple, Esq., Q.C., Counsel for the
Appellant
Michael Bader, Esq., Counsel for the Respondent.
Held: Monday, May 17, 1982.
This is an appeal brought by Ontario Provincial Police Constable Kenneth Richard Wilson, from his conviction of "Deceit", in that he did knowingly make a false statement in an official document or book, contrary to Section 1. iv (a) of the Code of Offences, contained in Regulation 791, made under the Police Act, by Assistant-Commissioner G.A. Duguid, on the 24th day of November, 1981, and from the penalty imposed by the said Assistant Commissioner on the 3rd day of December, 1981, that the appellant be required to resign from the force, and in default thereof, within seven days that he be dismissed from the force.
The appellant is thirty-seven years of age and has been a member of the Ontario Provincial Police force for approximately five years. Prior to his service with the Ontario Provincial Police he had a total of eight years in the service with two other forces.
On June 24, 1981, at approximately 11:30 p.m., a large-sized Chevrolet automobile was observed travelling in a northerly direction on provincial Highway 400, near the Innisfil beach side road. The automobile was observed to veer from the centre lane and strike the guard rails. The vehicle, which bore License No. OYK 073 had been observed proceeding in an erratic fashion for some distance prior to that.
The vehicle bearing License No. OYK 073 was later found to be an undercover vehicle that had been in the care and control of the appellant since approximately 1979, although it was used by him and a large number of other officers. This vehicle did not stop after striking the guard rail, but accellerated at a high rate of speed and left the scene of the accident.
A report of the hit-and-run accident had been made by a witness, D.R. Cannon, by use of a civil band radio. He subsequently attended with one of the Ontario Provincial Police constables to point out approximately where the collision between the vehicle and the guard rail had taken place.
The appellant testified that he had parked his vehicle in front of his home adjacent to the curb at approximately 6:30 on the evening of June 24, 1981. He said that he had no occasion to use it or to observe it until the following morning. He maintained that he stayed at home during that evening and this was attested to by his wife and a friend of the family. At approximately 7:45 a.m., on June 25, he observed that his vehicle had been damaged on the left front corner and the side. The right rear wheel of the vehicle had been elevated in some manner onto the upperpart of the curb. The appellant testified that he called the O.P.P. Detachment and reported a hit-and-run accident in front of his residence at 95 Steele Street, Barrie. Corporal Kelso attended and took pictures of the motor vehicle. The accident was also reported to the Barrie Police Department, and Constable Hartshorn attended and investigated the accident on Steele Street. Neither Corporal Kelso nor Constable Hartshorn felt that the vehicle in question had been damaged in front of 95 Steele Street as the damage to the vehicle was extensive, but there was no debris to speak of in the vicinity. This was particularly so when it was observed that one of the parking lights at the front of the vehicle had been broken. The appellant later admitted that it do not appear that the damage had occurred at the front of his residence because of the lack of debris.
Subsequent to Corporal Kelso and Constable Hartshorn completing their investigation, the appellant attended at the O.P.P. detachment and reviewed the Occurrence Book. He said that he was interested in determining whether or not that there had been any reports on the hit-and-run on his street. The evidence was clear and the appellant admitted that his residence was within the jurisdiction of the Barrie Police Department.
While perusing the Occurrence Book, the appellant noted an entry by Constable MacDonald pertaining to a "fail to remain" that identified License No. OYK 073 as the vehicle in question. Subsequent to that entry was a further entry made by Constable O'Brien which confirmed the ownership of the vehicle in question and made note that there was no damage to the guard rail and no debris was discovered.
The appellant then made the following entry:
"License number incorrect - no report of vehicle
suffering damage - no debris at scene. Metro inquiries
contacted and requested to cancel inquiry. Car not in the
area at the time."
This was not signed nor initialled as is the custom when making entries into the Occurrence Book.
It is this entry that is the basis for the charge of "Deceit" laid against the appellant.
Constable O'Brien testified that he had received a telephone call on June 25, 1981, at approximately 10:30 a.m., from the appellant advising him that the vehicle he was attempting to locate was an undercover vehicle assigned to the appellant and that the vehicle had no damage to it.
There was really no dispute that the vehicle in question was the undercover vehicle in the care and control of the appellant. It was clear from the direct evidence that this vehicle had indeed struck the guard rail and had sustained significant damage and, as well, had left some debris. Sergeant Cooper, an Identification Officer of some considerable experience, had identified certain pieces of debris consistent with and fitting into damaged sections of the appellant's vehicle. The paint smears on the rail were also consistent. The officer further examined the vehicle carefully concerning any tampering. The evidence of Sergeant Cooper demonstrated that there were no marks nor scars or any attempts to remove the ignition system. The locking system was functional and underneath the dash showed no evidence of cross wiring. In summary his evidence concluded there was nothing about the appellant's vehicle to indicate that it had been tampered with in any way.
The appellant testified that in addition to telling Constable O'Brien that the License Number of the car in question was incorrect and that the car did not have any damage, that he went on to advise that the vehicle had been damaged in a hit-and-run accident in the front of his premises. The appellant also testified that in addition to making the entry into the Occurrence Book, he also told Corporal Kelso that the entry concerning the appellant's vehicle being on Highway 401 at the time in question was incorrect.
Corporal Kelso made no reference to the appellant speaking to him and, in fact, his conduct was quite inconsistent with the appellant's evidence. Corporal Kelso posted a notice on the bulletin board asking the person who made the unsigned and uninitialledentry to identify himself. The appellant testified that the Corporal may well have been too busy and overlooked the effect of the appellant's conversation with him. That Corporal Kelso would overlook such a comment would seem highly unlikely, bearing in mind the very strange coincidence of the appellant's vehicle being involved in allegedly two hit-and-run accidents in such a short period.
It is also noted that Constable O'Brien made no mention of any alternative explanation having been given to him about any damage to the appellant's vehicle. Constable O'Brien's explanation would seem to be to the contrary, and it appears that he was informed in a firm manner that there was no damage to the appellant's vehicle.
The appellant tendered possible explanations as to why the vehicle may have been taken from his premises, including the fact that there was a second set of keys, that other officers used this car from time to time, although this had never been the case without his knowledge; that he was the subject of a vendetta of some sort, which was allegedly linked to some threatening phone calls received by his wife.
The entry into the Occurrence Book made by the appellant bears some scrutiny in light of what was well-known to the appellant at the time the entry was made. Firstly, the reference "Licence No. incorrect" was purely speculative because the appellant had no knowledge at that time as to the whereabouts of his vehicle between 6:30 in the evening and 7:45 in the morning, according to his evidence.
Secondly, the reference "no report of vehicle suffering damage" is completely contrary to what the appellant knew at the time of the entry.
Thirdly, the reference "no debris at scene" is again purely speculative on his evidence as is the reference "car not in the area at the time".
His explanation for making the entries in the Occurrence Book as he did was to protect the Ontario Provincial Police. His explanation appeared to go along the lines that he did not want the identity of the undercover vehicle exposed so as to adversely affect its usefulness in undercover operations. This explanation obviously was not accepted by the Assistant-Commissioner at trial and, in fact, it does not seem to make a great deal of sense in light of the other evidence, it seems to be contradictory to his own evidence. In that regard, he testified that other officers used the vehicle and have used the vehicle on many occasions and that there are in fact a second set of keys kept at the detachment. The Occurrence Book is not a public document and it would thus appear that his attempt to protect the Ontario Provincial Police was from the knowledge of the O.P.P. officers themselves.
Once the entry into the Occurrence Book was acknowledge by the appellant, it fell to him to give an adequate explanation as to why such entry was made. Thus, his credibility was put directly at issue in that regard and on other points as well. It appears from the reasons, given by the Assistant-Commissioner, that he rejected the appellant's version and was led to the irrestible conclusion that the appellant either was directly involved in the hit-and-run accident on Highway 400 or knew more about the incident that he was alluding to. While he did not make that finding and was not required to make that finding, it is apparent that he concluded that the entry into the Occurrence Book was made specifically to deceive and to interfere with the investigation into the occurrence on Highway 400.
Counsel for the appellant took issue with the Assistant- Commissioner making his determination in this matter by applying the standard of proof as that of "the balance of probabilities". He referred to Bernstein & the College of Physicians and Surgeons, 1977, 15 O.K. 447, and particularly a reference to Cartwright J. in Smith v Smith & Smedman, 1952, S.C.R. 312 p. 331, where Cartwight J. said this:-
"In every civilized action before the
tribunal can safely find the affirmative of
an issue of fact required to be proved, it
must be reasonably satisfied —- whether or
not it will be so satisfied must depend on
the totality of the circumstances upon which
its judgement is formed including the
gravity of the consequences of the finding".
It was suggested that this formed the basis of the standard that ought to have been applied in this case, and had the standard been applied, the Assistant Commissioner's would not have reached the conclusion that he did.
Notwithstanding the Assistant-Commissioner's comment as to the standard applied, I am satisfied that the evidence at this hearing would support a similar conclusion on the slightly higher standards that is referred to in the "Bernstein" case. The Assistant-Commissioner commented that he had assessed the conduct and demeanour of the witnesses who appeared before him, and, obviously, taken into consideration the overall credibility of each. I am satisfied that the evidence supports the conclusions of the Assistant-Commissioner and the conviction will, therefore, be upheld.
It was ably argued that the penalty in the circumstances, which required the appellant to resign or, alternatively, be dismissed was much too harsh and unreasonable, given the officer's background and the evidence of character witnesses who testified on his behalf. It should be noted that the character evidence, given on behalf of the appellant, was somewhat tempered.
It was suggested by counsel for the respondent that the penalty, as administered, was the only penalty in the circumstances as the situation was no longer a simple hit-and-run case. He argues that the Constable had set in motion a set of circumstances which not only culminated in a web of deceit, but also attempted to effectively interfere with a criminal investigation.
There is no doubt there are many actions of officers which are excusable and such actions can be dealt with by applying monetary penalties or reduction in rank. In this instance, the appellant compounded his original deceit by making allegations as to the honesty of Constable O'Brien and Corporal Kelso. At the very least, his allegations would go to the competence of these two officers.
Assistant Commissioner Duguid stated that the appellant had been placed in a position of trust which went above and beyond what was expected of the average Constable, which trust was breached. The appellant has placed his integrity at issue and it has been
found wanting. I believe that the evidence was sufficient to support the sentence administered by the Assistant Commissioner and I am not prepared to interfere with same. The appeal is, therefore, dismissed.
DATED at the City of Toronto, in the Municipality of Metropolitan Toronto this 27^th^ day of May A.D. 1982
W. T. McGrenere,
Member.