ONTARIO CIVILIAN POLICE COMMISSION

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

There to and Regulations thereunder;

AND IN THE MATTER OF appeals to the Ontario Police Commission by:

JOHN 0. HENDERSON, POLICE OFFICER

DECISION

Panel: W. THOMAS McGRENERE, ESQ., Q.C., Chairman

Hearing Date: June 18, 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

Appearances:

Leo Ryan, Counsel for the Appellant,

who also appeared in person

C. E. Fleck, Q.C., Counsel for the Board

of Police Commissioners, and Inspector

Merwin

Hearing: June 18, 1982

1. This is an appeal by John 0. Henderson from a conviction of a charge of insubordination in that he did, without lawful excuse, disobey a lawful order contrary to s..l(ii)(b) of the Schedule Code of Offences, Regulation 680/70. The conviction was registered by Chief R. F. Cook on September 21, 1981, and a sentence was delivered on September 28 requiring Constable Henderson to resign from the Sarnia Police Force within 7 days and failing that, to be summarily dismissed. The conviction was upheld after an appeal hearing before the Board of Police Commissioners on December 8, 1981.

2. This matter originally came before me on April 2, 1982. At the outset of the appeal on that date, it became obvious from the extensive notice of appeal and the various documents annexed to it that the Appellant's solicitor was seeking to enlarge this hearing. The majority of the documentation annexed to the notice of appeal was being presented for the first time in thesediscipline proceedings. In the end result, counsel for the Respondent did not object to the documentation being accepted by me, and indeed, filed Department correspondence and particularly a transcript of an interview with John Henderson by Chief Cook, dated February 24, 1981.

3. I expressed a concern at that time that the date of the charge and the effective date of the termination of the Appellant may interfere with any disability pension benefits to which he may be entitled. After an open discussion with counsel for the parties, it appeared to me that both were interested in achieving a resolution of this matter whereby Constable Henderson would be permitted to retire on a disability pension following his fiftieth birthday. The matter was then adjourned in order that further documentation by way of medical reports could be obtained by the Appellant and upon the consent of counsel for both parties, the proceedings before this Commission would be enlarged to include a consideration under s.27(e), Regulation 680 under The Police Act. The matter was then adjourned to permit the medical reports to be obtained and indeed, these reports were obtained and forwarded to me, but the Appellant's counsel indicated at the opening of the appeal that he did not wish to pursue any proceedings under s.27 of the Regulations, nor to rely on the medical reports that he had obtained and forwarded to the Commission. These reports were not entered as exhibits. This matter then proceeded on appeal as originally constituted.

4. Although this is an appeal from a conviction by Chief Cook

which was upheld by the Board of Police Commissioners, it is to

be noted that considerably more evidence was adduced befo this

Commission on this appeal and the matter was enlarged in order that I may deal with the merits. There was additional information provided by the Appellant as to the Appellant's apparent standing in the community, as well as a chronology of events dealing with the Appellant's employment with the Sarnia Police Force. These were not entered as exhibits.

5. It should be noted that the Board of Police Commissioners reviewed the matter almost as a trial de novo, even though it was based on the transcript of the evidence before Chief Cook, but more significantly, invited the Appellant to file any further documentation or call any further evidence that was germane to the Appellant's position. This invitation was not accepted.

6. Before dealing with the grounds of appeal, it is essential to review the events leading up to the charges against the Appellant .

7. In August of 1976, the Appellant was medically examined by Dr. Blundel and found at that time to be suffering from bilateral foot strain. The doctor suggested that this was contributed to by obesity and there was a suggestion of diet and calf-strengthening exercises to try and obviate the problem. The Appellant was examined on behalf of the Board of Police Commissioners by Dr. Rounthwaite on October 4 and Dr. Rounthwaite concurred with Dr. Blundel and also suggested that the Appellant reduce his weight. Subsequent to this time, the Appellant was off duty for a two-year period by way of leave of absence. It is suggested this was for disability purposes and this would appear to be confirmed by a letter from the Ontario Municipal Employees Retirement Board dated September 26, 1980, which was one of the documents submitted before this Commission.

8. Apparently in March of 1980, the Appellant was examined on behalf of the Sarnia Police Force by Dr. Jumean and at that time, the doctor concluded that the Appellant was not physically fit for general police duties.

9. It is clear from the evidence before me and the submissions by counsel that the Appellant would qualify for a disability pension after age 50. It is also clear that the Appellant would have to work one day beyond his fiftieth birthday to achieve these pension rights.

10. In a meeting that apparently took place on October 2 between Constable Henderson and Chief Cook, arrangements were made whereby the constable would return to a form of duty and be permitted to work until he had reached the age whereby he take advantage of his disability pension. It was pointed out in a memorandum to file re Constable Henderson, the contents of which he admits to being aware of, that he would utilize his sick time and vacation time and statutory time off to advance his actual termination with the Police Force prior to August 31, 1981. The effect of the use of the accumulated time by Constable Henderson would be to bring the termination date to February 17, 1981.

11. Constable Henderson returned to a work detail which commenced 7:00 p.m. to 3:00 a.m. whereby he answered calls coming in to the station and thereby relieved an officer for other duties. It was suggested in a later transcript of a conversation between Constable Henderson and Chief Cook that this job had in fact been manufactured to accommodate Constable Henderson.

12. On February 18, Constable Henderson had been instructed that his station duty was finished and that if he were to continue on his job, he was required to go into uniform and report for regular duty. Constable Henderson indicated that he would return to duty and shortly thereafter, he was asked to see Chief Cook. Constable Henderson apparently advised Inspector Brown that he had been in touch with OMERS and that he was advised he would haveto work one day after his fiftieth birthday to obtain the disability pension. Inspector Brown had indicated that there would be no problem in this regard and that the Police Department would give him a confirming letter in due course.

13. There was further conversation regarding a request by Constable Kenderson for compensation concerning his two-year sick period. The constable advised that OMERS was prepared to pay his pension for that time and Inspector Brown left it on the basis that the constable had a two-year leave of absence and that he could not involve himself in that aspect further.

14. In the meeting of February 24, 1981 between Constable Henderson and Chief Cook, the arrangement of October 2, 1980 as between the Police Department and the constable was revieweand Constable Henderson, amongst other things, indicated that he was applying for two years' back wages because of an illegal suspension. There was a debate with the Chief as to whether Constable Henderson had left for disability reasons or had left to start a business. The constable was asked if he was going to abide by the purported agreement of October 2, 1980 and Constable Henderson replied that he could not trust the Chief and that he was going to work one day into his fiftieth year. There was a debate between the Chief and Constable Henderson about a possible suspension and the Chief ultimately advised the constable that he would have to work shift work, to which the constable replied that there was no way that he would work shifts and that he would not take a direct order to do so.

15. Notwithstanding the exchange between Chief Cook and Constable Henderson, the constable did return to duties in February and was placed on a warrant detail. This did not work as efficiently as planned and it was disbanded in the early part of May 1981, at which time Constable Henderson was returned to regular duties.

16. In the course of general duties, Constable Henderson was required to actually walk a beat only once prior to August 28, 1981. At this time, he booked off sick. He did, however, attend on a detail at a Shriners1 parade where he was required to stand on his feet for approximately 4 hours. Although he admitted to being able to do this, he said that he was in considerable pain thereafter for weeks.

17. On August 28, 1981, Sgt. Alien assigned Constable Henderson to walk a beat and the constable advised Sgt. Alien that he could not walk a beat, but offered no explanation. The constable was referred to Inspector Larsen and again the constable advised the Inspector that he could not walk a beat and was refusing to take the order. Inspector Larsen enquired of Constable Henderson as to the problem, and the constable advised that it was "the same problem." To this, the Inspector replied, "Your legs?" and the constable said, "Yes."

18. Apart from this exchange, there was really no explanation nor any elaboration given by Constable Henderson as to his condition. Inspector Larsen said that so far as he was concerned, the constable appeared to be able to walk and he could see no reason why he could not walk a beat. The Inspector further admitted that he knew that Constable Henderson had medical problems in 1976, but he did not know the specifics.

19. The grounds of appeal were both extensive and detailed, and I propose to deal with each of the grounds in the order as they were presented in the notice of appeal.

A. DEFECTS IN CHARGE SHEET

Inspector B. H. Larsen who is the authorized

signing officer in respect of the charge sheet

in this case does not have the lawful authority

to sign the said charge sheet contrary

to Section 6, Regulation 680 under The Police

Act. Inspector Larsen does not have the

authority in that:

(a) he has not been designated by the

Chief of Police, nor is he the

Chief of Police;

(b) he is the complainant in the charge

and the complainant is to lay the

grounds of the complaint before the

Chief of Police, or the designated

officer.

2. The original charge sheet served on Police

Constable Henderson at 12:00 p.m. on August

30, 1981, by Inspector Bruce H. Larsen did

not comply with Section 5(1) of Regulation

680 under The Police Act in that:

(a) the true copy served on Police

Constable Henderson did not have

a date and time of service indicated

thereon, whereas the copy

which went before the Board on

the appeal to it of December 8,

1981 had the time and date of

service indicated thereon with

the time notation appearing to

be in an alternate handwriting;

(b) the true copy of the charge sheet

served on Police Constable Henderson

was not completed with particulars

of service thereby not

completing the laying of the

charge against Police Constable

Henderson and not complying with

Section 5(12) and Section 26(1)

of Regulation 680 under The Police

Act;

(c) the original charge sheet served

on Police Constable Henderson at

12:00 p.m. on August 30, 1981 by

Inspector B. H. Larsen did not

contain a statement of particulars

relied on by the signing officer

in contravention of Section 5(8)

(b)(ii) of Regulation 680 under

The Police Act;

(d) as a result of the signing officer

not complying with Section 5(8)(b)

(ii) of Regulation 680 under The

Police Act Police Constable Henderson

was misled to his own detriment in

that the medical evidence concerning

his existing medical problems with

his feet and legs already on file

with the administration of the City

of Sarnia Police Department and

already on file with the Board,

the most recent of which was

dated March 1980, was not going

to be acknowledged.

20. Inspector Larsen falls within the class of officers specified in s.3 of Regulation 680 and is thus subject to being designated by the Chief of Police for the purpose of dealing with disciplinary matters. There is no evidence to indicate that Inspector Larsen had or had not been designated on this occasion. This issue was not raised at the trial, nor on the appeal to the Board of Police Commissioners.

21. I am of the view that the defects as alleged in Item l(a) and (b) and Item 2(a) and (b), to the extent that such defects do exist, are not fatal to the charge sheet against Constable Henderson. In any event, I believe that the constable's failure to raise these matters at the outset of the discipline charges implies a consent to waive the defects and accept the jurisdiction of the tribunal.

22. With respect to Items 2(c) and (d), I am satisfied that the particulars contained on the charge sheet were both clear and sufficient to alert Constable Henderson to the charge that he must face. I do not believe that the lack of greater particularity of the charge misled Constable Henderson to his detriment.

B. NON-COMPLIANCE WITH RULES AND

REGULATIONS OF THE SARNIA POLICE

FORCE____________________

23. The thrust of the Appellant's position in this respect is that the Chief of Police, Inspector Larsen and Sgt. Alien all failed to comply with their duties as laid out in the Sarnia Police Force Regulations. Insofar as Inspector Larsen and Sgt. Alien were concerned, they failed, amongst other things, to take into consideration the fact that Constable Henderson was incapable of doing general duties and that they ought not to have ordered the constable to walk the beat. It was argued that these officers, particularly Inspector Larsen, ought to have been aware of the Appellant's medical condition and to have taken it into consideration in ordering him to do certain duties.

24. This argument presumes that Inspector Larsen, in particular, knew Constable Henderson's limitations and knew that doctors had, in the past, indicated that he was incapable of carrying out all of the duties expected of a police officer. This presumption is contradicted by Inspector Larsen himself. He testified that he thought the constable was capable of walking, as he had observed him walking and showing no difficulties over the few months that the officer had returned to duty.

25. It must be noted that whatever the senior officers may have known about Constable Henderson prior to February of 1980, it is difficult to ascribe specific knowledge of the constable's medical short-comings after that date. It seems that as of late February 1980, the complexion of the constable's position had changed somewhat. He had accepted an assignment to general duties, even though he had suggested to the Chief that he was not prepared to follow certain orders. I do not believe that Inspector Larsen was in breach of the Regulations of the Sarnia Police Force by ordering Constable Henderson to walk the beat.

C. NON-COMPLIANCE WITH ONTARIO

POLICE ACT

Police Constable Henderson was terminated from the City of Sarnia Police Force on October 5, 1981 and all wages and benefits of the employment terminated at this time. Police Constable Henderson launched an appeal from his dismissal before Chief Robert F. Cook of September 28, 1981 to the Board of Commissioners of Police for the Municipality of Sarnia within the prescribed time. By terminating Police Constable Henderson on October 5, 1981 total disregard was had for Section27 and Section 53 of Regulation 680 under the Police Act.

26. The Ontario Court of Appeal, in the decision of Myllynen v. Board of Police Commissioners of the City of Peterborough, 1978 CanLII 1372 (ON CA), 20 O.R. (2d) 254, held that it was not contrary to s.27 of Regulation 680 to terminate an officer's wages and benefits at the same time as his service was terminated, notwithstanding thatappeal procedures remained open to the officer.

27. The Chief of Police, Robert F. Cook,

in his reason for decision dated

September 21, 1981 has based his

reasons for imposing the punishment

he did upon improper legal grounds

which are perverse in nature and

cannot be upheld.

27. It was suggested by counsel for the Appellant that the Chief was in error by speculating on the future conduct of Constable Henderson. In this instance, I do not believe that the Chief was simply speculating. Constable Henderson had indicated to the Chief in the meeting of February 24, 1981 that he was not prepared to accept the Chief's direct order to work shifts at that time. The constable's simple refusal to accept the order of Inspector Larsen would also support the Chief's view. The incident, of course, must be viewed in the context of what Constable Henderson was purportedly trying to achieve in obtaining an early pension on medical grounds.

The Chief of Police Robert F. Cook

exhibited an obvious bias and dislike

towards the appellant Police

Constable Henderson and the appellant

was deprived of a fair hearing

as a result of this situation.

28. The evidence falls far short of demonstrating an obvious bias and dislike by Chief Cook towards Police Constable Henderson. It is undoubtedly true that the Chief was not pleased with developments subsequent to February 17 because it appears that he felt that Constable Henderson had failed to comply with the arrangement made in October of 1980. On the other hand, it was clear that the Chief and the Board had assisted Constable Henderson in achieving the necessary status to apply for his disability pension and obviously provided a position in the initial stages which would allow Constable Henderson to comply with the provisions for a disability pension.

29. In any event, the Board of Police Commissioners reviewed the matter as if it were a trial de novo and had given the Appellant the opportunity to file further material. Similarly, I permitted further material to be filed and because this hearing was enlarged, it proceeded almost as a trial de novo, and for that reason, I am not persuaded that the Appellant's position has been adversely affected by any denial of natural justice.

30. The Chief of Police, Robert F. Cook,

in hearing the original trial herein

displayed total disregard for the

provisions of Section 17(3) of

Regulation 680 under The Police Act.

The appellant's counsel was invited

to make submissions on sentencing

on September 28, 1981. The said

counsel made such representations and

Chief of Police, Robert F. Cook, then

proceeded to deliver a previously

prepared typed reasons for judgment

dated September 21, 1981 thereby

rendering totally useless any representations

made on behalf of the

appellant.

30. The thrust of this contention was that the Appellant had been denied natural justice by the Chief making his decision as to sentence prior to hearing from counsel for the Appellant. The Chief's conduct obviously was a slight to the ego of the Appellant's counsel, but I do not think that it indicates a lack of natural justice. While the Chief undoubtedly had made up his mind before hearing from counsel, it was equally open to the Chief, had he been persuaded by counsel's forensic skills, to change his decision.

31. On December 8, 1981, just prior to the

hearing of the appeal of the decision

of Police Chief, Robert F. Cook, to the

Commission, without any notice to the

appellant or his counsel and without

the knowledge of the appellant's counsel

Inspector George Merwin of the City of

Sarnia Police Force distributed a 3

page personal record of Police Constable

Henderson to each Commission member and

to Commission's counsel. This document

which contravened Section 15 of Regulation

680 under the Police Act was

presented for the sole purpose of

influencing the Commission.

9. On the hearing of the charge before

Chief of Police, Robert F. Cook,

no reference was made to the personal

record of Police Constable Henderson.

A 3 page personal record was given

to the Commissioners of the Board

of Commissioners of Police for the

Municipality of Sarnia on the appeal

to it of December 8, 1981 which act

is in direct contravention of Section

19(4) of Regulation 680 under the

Police Act.

31. The document referred to as the personal record of Constable Henderson in Paragraphs 8 and 9 was tendered at the time of the appeal before the Board of Police Commissioners and it was made known to counsel for the constable that it was going to be provided to the members of the Board of Police Commissioners. There was no objection to the document being tendered at that time. I read the document and I do not believe that it lends much weight to either side of the contentions in this matter.

32. 10. The reporting conditions imposed on Constable Henderson .contravene both the Rules and Regulations of the City of Sarnia Police Force and The Police Act.

33. I believe that they were excessive in the circumstances, but I do not believe that the implementation of such reporting conditions plays any significant role in the disposition of the Appellant's case.

34. The punishment imposed herein was

overly harsh for the circumstances

involved.

34. The termination of the Appellant's position with the Sarnia Police Force at first blush may seem to be somewhat harsh, but when his conduct is examined in light of his past medical history and his admission that he is not capable of carrying on his duties as a police officer and his acknowledged desire to retire early on a disability pension, it seems as if no other alternative was available.

35. It is difficult to fully understand exactly what Constable Henderson was trying to achieve in these proceedings. The history of events before me made it clear that he felt that he could no longer function as a police constable and he believed that his doctors and the Police Force doctors shared that view. The medical information filed would confirm that. The constable apparently entered into an arrangement with Chief Cook after the constable's lengthy leave of absence, to achieve status for a disability pension which would commence after his fiftieth birthday. A job with the Force appears to have been created for him to the point where he could cease work on February 17, 1981 and still preserve his pension rights. For reasons that are unclear, he changed his mind about ceasing work on February 17, but at no time did he produce any evidence that he could continue to perform as a police constable and in fact, as indicated above, he took a position which was clearly to the contrary. It is also to be noted that counsel for the Appellant indicated, in the presence of the Appellant, that these proceedings would not in any way interfere with the Appellant's rights to a disability pension. It is regretable that the issue had to proceed in this matter, but it is clear that the officer did not wish to have the matter proceed by way of an application under s.27 of Regulation 680.

36. The decision of Re Giles and Halton Regional Police Force et al. (1982), 1981 CanLII 1955 (ON HCJ), 33 O.R. (2d) 666, was forwarded to the Commission approximately one week after the conclusion of the hearing. I believe that the case is distinguishable from the one at hand, and it does not alter the Appellant's position.

37. In all of the circumstances, I am of the view that the appeals as to conviction and sentence must be dismissed.

DATED at the City of Toronto in the Municipality of Metropolitan

Toronto, this 8th day of July A.D. 1982.

W.T.McGrenere,Member