Constable William Thompson v. Chatham Police Force, 1983 CanLII 3146

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 WILLIAM THOMPSON CHATHAM POLICE FORCE

DECISION

Panel: W. T. McGrenere, Esq., Q.C. John P. MacBeth, Esq., Q.C.

Hearing Date: Tuesday, November 22nd, 1983 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. John P. MacBeth, Esq., Q.C.

Appearances: Constable Carl Herder, President Chatham Police Association The Appellant

Superintendent Nelson J. Somerset, Chatham Police Force

Held: Tuesday, November 22nd, 1983

1. This is an appeal by Constable William Thompson from a conviction of the charge of Insubordination in that he did without lawful excuse disobey a lawful order, contrary to Section HbHii) of the Schedule Code of Offences of Ontario Regulation 791/80 made in pursuant to the Police Act of Ontario

2. The conviction was registered at a trial held on November 4, 1982 and was upheld by way of an appeal to the Board of Police Commissioners on the 6th of April, 1983.

3. It is alleged on behalf of Constable Thompson that Staff Sergeant E. Thompson did not have lawful authority to order Constable Thompson to work overtime.

4. The facts, very briefly are as follows:- On October 2nd, 1982, Constable Win. Thompson was working the 4:00 P.M. to 12:00 Midnight shift. Just prior tothe conclusion of his shift he was asked by StaffSergeant Thompson to work overtime for one hour. The request was made of Constable Thompson and of Constable Jenner to volunteer for this task. Neither was prepared to volunteer. It is suggested that Constable Jenner complained of being ill earlier that evening. It is common ground that there were two officers on duty on the 4:00 P.M. to 12:00 Midnight shift that evening who were junior to Constable Thompson. Sergeant Thompson testified that these two junior officers had returned to duty that evening and he had overlooked their presence when requesting a volunteer and before ordering Constable Thompson to work the one extra hour. Constable Thompson admits to being ordered to work, but denies a request that he volunteer and denies that there was a suggestion by Sergeant Thompson that he work only one hour. Constable Thompson felt that he would be obliged to work approximately 3 1/2 hours and having spent 8 hours on his feet he felt that he was not obliged to obey Staff Sergeant Thompson's order. While there are some issues of credibility between Staff Sergeant Thompson's and Constable Thompson's evidence, no finding of credibility was made by the Board and we do not feel it is essential to deal with that issue in our disposition of this appeal.

5. Constable Herder on behalf of Constable Thompson submitted that in curcumstances similar to those occurring on the evening of October 2nd, 1982 that Staff Sergeant Thompson could do no more than ask for volunteers to work overtime and thus fill the shift complement necessary after midnight. He suggested that the working agreement between the force and the Chatham Police Association did not provide authority to the Staff Sergeant to order any officer to work overtime and further that the regulations of the force pursuant to By-law No. 43 did not provide authority for the Staff Sergeant to make such an order. He submitte that the Staff Sergeant would have authority to call any officers who were off-duty to work overtime, but this would only be where a superior officer deemed the attendance of such officer necessary and in Constable Herder's submission this would be generally in an emergency situation.

6. The rules and regulations pursuant to By-law No. 43 provide in part under Part 2 Subsection 2 that "each member although off-duty for certain alloted hours shall turn out on duty when his services are deemed necessary by a superior officer".

7. We are not persuaded that this provision should be given the narrow interpretation suggested by Constable Herder. We believe that that provision does provide lawful authority to a superior officer in a position that Staff Sergeant Thompson found himself on the evening of October 2nd, 1982, to order an officer to work overtime.

8. In all of the circumstances and for the above reason the appeal is then dismissed.

DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 22^nd day of November, A.D. 1983.

W.T. McGrenere, Q.C. Member

John P. MacBeth, Q.C. Vice Chairman