Booth v. Metropolitan Toronto Police Force, 1983 CanLII 3149

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:

SERGEANT NORMAN BOOTH #2299 METROPOLITAN TORONTO POLICE FORCE

DECISION

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

Hearing Date: Friday, February 25, 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.

Lewis Gottheil, Esq.

Appearances:

Counsel for the Appellant

The Appellant

Eric Polten, Esq.

Counsel for the Respondent

Staff Inspector John Addison

Metropolitan Toronto Police Force

Held: Friday, February 25, 1983

1This is an appeal from the decision of Superintendent Smith on the 1st day of April, 1981, wherein a conviction was registered against the appellant for insubordination in that being a member of the Metropolitan Toronto Police Force, attached to the Investigative Support Squad, on Tuesday, April 22nd, 1980 was working from 2:00 p.m. to 10:00 p.m., and at approximately 6:50 p.m. was requested to assist in transporting prisoners, he replied to Staff Sergeant John Wilson in a loud voice, using obscene language that he had to finish a report and thereby acted in an insubordinate manner contrary to Section 1(ii)(a) of the Schedule Code of Offences of Ontario (then) Regulation 680, R.R.O. (1970) made in pursuance of the Police Act of Ontario.

2Secondly this is an appeal from the decision of Superintendent Smith on the 1st day of April, 1981, wherein a conviction was registered against the appellant for insubordination, in that on April 22nd, 1980, while working at 2:00 p.m. to 10:00 p.m. he received a telephone call from Staff Sergeant Axford, who wished to speak to him concerning a lawyer who was attempting to speak to Staff Sergeant John Wilson and when told that Staff Sergeant Wilson was unable to speak to Staff Sergeant Axford and that the call would be returned later, he did in a loud voice and using obscene language complain to Staff Sergeant Wilson about the position in which he had been put in with Staff Sergeant Axford, and thus acted in an insubordinate manner, contrary to Section 1(ii)(a) of the Schedule Code of Offences of Ontario (then) Regulation 680, R.R.O. (1970) and made in pursuance to the Police Act of Ontario.

3The convictions as registered by Superintendent Smith were upheld by the Board of Commissioners of Metropolitan Toronto Police on November 4th, 1982.

4The charges arise out of three episodes of an incident which occurred on April 22nd, 1980 at approximately 6:50 p.m. at the offices of the Investigative Support Squad. Sergeant Booth had been scheduled to work the 4 to 12 shift but because of a non-related incident had been called in by Inspector Stewart to complete a report and thus commenced his shift at 2:00 p.m. that day.

5A series of arrests had been made earlier that day and a number of persons were being processed through the Investigative Support Squad by fellow officers directl under Staff Sergeant Wilson. Some time prior to 6:00 p.m., Sergeant Booth was advised that his assistance would be required to assist in transporting the prisoners to No. 52Division. Sergeant Booth replied that he was busy workin on a report. Staff Sergeant Wilson said his response was loud and aggressive.

6A short time later, the precise time being unclear, but would appear to be between approximately 5 minutes to 20 minutes, Staff Sergeant Wilson requested Sergeant Booth's assistance again. Booth responded by requesting "a couple of more fucking minutes". Staff Sergeant Wilson advised Sergeant Booth that he had two more minutes.

7Shortly after this exchange, Sergeant Booth received a telephone call from Staff Sergeant Axford, who was attempting to reach Staff Sergeant Wilson. Upon relating this fact to Staff Sergeant Wilson, Sergeant Booth was advised that Staff Sergeant Wilson would call Staff Sergeant Axford back. Sergeant Booth called out to Staff Sergeant Wilson, over a distance of approximately 25 to 27 feet, in what is described as a loud and aggressive fashion the following "Axford will give me fucking shit for this". Staff Sergeant Wilson responded "did you not tell him that the information was coming from me". And Booth nodded his head affirmatively. He said "that doesn't matter. He will still give me shit. It is a fuck of a position to put me in." Staff Sergeant Wilson said that Booth was totally aggressive and his voice was loud and that he was almost yelling.

8Sergeant Booth was originally charged with three counts of insubordination, one arising out of each of the three exchanges between himself and Staff Sergeant Wilson. Thetrial officer found that the first exchange between Sergeant Booth and Staff Sergeant Wilson did not constitute insubordination and the first charge was dismissed.

9It was submitted on behalf of the appellant that the second charge was really based on an extension of the facts pertaining to the first charge and that the appellant's conduct during the second incident was no different than the first and thus, the second charge should be dismissed in the same way that the first was.

10The dictionary definition of insubordination was proffered as contained in Websters and Oxford, meaning to be disobedient or rebellious. It was urged that the appellant's conduct notwithstanding the use of profanity did not amount to disobedience or rebelliousness.

11The evidence pertaining to the second charge is unclear as the request of Sergeant Booth, all be it couched in profane terms, appears to have been acquiesced to, at least in part, by Staff Sergeant Wilson, allowing Sergeant Booth a further two minutes. Thereafter, there is no evidence pertaining to the matter which would close the time frame on the incident and indicate when the disobedience, refusal or rebelliousness took place to warrant a finding of insubordination.

12Insofar as the third exchange was concerned, it was submitted that Sergeant Booth's comments to Staff Sergeant Wilson were not indicative of disobedience or rebelliousness but were simply evidence of a complaint and that profanity alone was not indicative of insubordination. The appellant was known for being loud, aggressive and given to using profane language on a regular basis. It was further urged that the appellant's use of profanity was no worse than that of Staff Sergeant Wilson and that to convict one without convicting the other was to allow an discriminatory process to take place.

13The evidence must be viewed as a whole and the credibility of various witnesses considered. Superintendent Smith preferred the evidence of Staff Sergeant Wilson and private investigator John Hunter over contradicting evidence from other witnesses. He had an opportunity to consider their answers and the demeanor under extensive examination. We believe that there is ample evidence to support his findings of credibility. While we are persuaded that the use of profanity alone doesn't necessarily constitute insubordination, we are satisfied that Sergeant Booth's manner of speaking to Staff Sergeant Wilson after the telephone call from Staff Sergeant Axford was insolent and rebellious and done in a disrespectful manner. The evidence of the investigator Hunter in testifying about Sergeant Booth's conduct after the third exchange with Staff Sergeant Wilson would confirm this attitude "I believe Sergeant Booth shortly after that (the telephone call) did become involved in the moving of prisoners or assisting in the investigation, but as I say, from that point on, he seemed to over emphasize his manner of addressing Staff Sergeant Wilson, over emphasis on Sir and Sergeant and this kind of thing, which I felt in my opinion was uncalled for".

14For the reasons given above, we would allow the appeal as to the second charge and dismiss the appeal as to the third charge.