Murphy v. Metropolitan Toronto Police Force, 1983 CanLII 3150

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 EDWARD MURPHY OF THE METROPOLITAN TORONTO POLICE FORCE

DECISION

Panel: W. T. McGrenere, Esq., Q.C.

John P. MacBeth, Esq., Q.C.

Thomas A. Hockin, Esq., Ph.D

Hearing Date: Friday, August 27^th, 1982

Friday, January 7^th, 1983

Friday, September 2^nd, 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.

Thomas A. Hockin, Esq., Ph.D

Appearances:

Barry Chercover, Esq., Counsel for the Appellant, the Appellant also appearing in person

Eric Polten, Esq., Counsel for the respondent Metropolitan Toronto Police Force

Staff Inspector John Addiso

Held: Friday, August 27^th, 1982

Friday, January 7^th, 1983

Friday, September 2^nd, 1983

Decision of the Majority: That the Appeal be Dismissed. John P. MacBeth Thomas A. Hockin - REASON

1. W. T. McGrenere (Dissenting) This is an appeal from the decision of Superintendent Smith on the 10th day of February, 1981, wherein a conviction was registered against the Appellant for insubordination in that he did, without lawful excuse, disobey a lawful order contrary to s.l(II)(b) of the Schedule Code of Ontario Regulation 680/70. The conviction of Superintendent Smith was upheld by the Board of Commissioners of the Metropolitan Toronto Police Force on the 8th day of April, 1982.

The factual background leading to the charge is as follows.

2. On June 18, 1980, Constable Murphy was charged for failing to obey an order to trim his moustache which, in the opinion of his superior officer, exceeded the limits of the personal appearance regulation 4.31.16 of the Metropolitan Toronto Police Force. Constable Murphy had joined the Metro Force in 1969. After initial training, he spent his early years on the Force at 54 Division. In 1978 he was transferred to 23 Division. He wore a moustache for a number of years preceding the incident of June 18, 1980, and at no time prior to August, 1979 was the issue of the length of his moustache ever raised.

3. In August 1979, Sergeant Best requested that he trim his moustache. Staff Inspector Adams assumed charge of 23 Division in December, 1979 and he made it known that the regulations must be strictly adhered to. On December 5, 1979, Staff Sergeant Nadeau advised Constable Murphy that his moustache offended the regulations and that if it was not trimmed appropriately, he would be documented. He was further warned by Staff Sergeant Nadeau on Janury 13, 1980.

4. Constable Murphy refused to comply with the order to trim his moustache because he felt that he was being discriminated against because others in 23 Division had moustaches that offended the regulation, and that while he recognized his moustache was slightly over the limit, he nevertheless felt that it was consistent with, if not slightly shorter than, the length it had been over the preceding years. He was also mindful that a great many officers outside of 23 Division traditionally had

moustaches which exceeded the limits of the regulation.

5. Subsequent to the Constable being charged, he was required to work on a beat for approximately ten days, then he was assigned to the Scarborough Police College where he remained for three months, and then to the Morality Squad and eventually to the Intelligence Bureau.

The following grounds of appeal were advanced and reviewed by counsel exhaustively:

(1) the presiding officer erred in law in concluding that the order contravened by the Appellant was a lawful order; (2) the presiding officer erred in law and in fact in concluding that the Appellant did not have a reasonable or lawful excuse for contravening the order; (3) the presiding officer erred in failing to apply the maxim of d£ minimis non curat lex; (4) the presiding officer erred in law in failing to find that the Respondent was estoppel from attempting to enforce its regulation; (5) the presiding officer erred in failing to find that the Respondent had been punished and thus was the subject of double jeopardy.

GROUND 1

6. It was contended that the personal appearance regulation

4.31.16 which gives rise to this charge was ultra vires the Board of Police Commissioners. The material portion of that regulation reads as follows:

"Moustaches shall not extend past the corners except that the spikes on waxed moustaches may be up to but not exceeding one inch in length. The remainder of the face shall be clean-shaven."

The Board derives the authority to pass regulations from s.16 of The Police Act:

"A Board may by by-law make regulations not inconsistent with the regulations under s.74 for the government of the Police Force for preventing neglect or abuse and for rendering it efficient in the discharge of its duties."

Section 17 of The Police Act makes the members of the Police Force subject to the Board and reads:

"17.1 Notwithstanding s.2, the Board is responsible for the policing and maintenance of law and order in the Municipality and the members of the Police Force are subject to the government of the Board and shall obey its lawful directions. "Every member of the Police Force of the Municipality however appointed is, from and after the passing of the by-law establishing a Board, subject to the government of the Board to the same extent as if appointed by the Board."

7. It is not clear when regulation 4.31.16 which forms part of by-law 24 was passed, but it obviously was some considerable time before the incident giving rise to this charge. Staff Sergeant Connolly, in his evidence, indicated that the regulation existed for at least ten years before the charge.

8. While it was admitted by counsel on behalf of the Appellant that the Board had authority to pass regulations pertaining to personal appearance, it was contended that that authority was limited by the provisions of s.29 which provides for collective bargaining and more specifically subsection 2 which, in part, reads as follows:

'The parties shall bargain in good faith and make every reasonable effort to come to an agreement for the purpose of making an agreement in writing defining, determining and providing for remuneration, pensions, sick leave credit gratuities, grievance procedures or working conditions of the members of the Police Force other than the Chief of Police and any Deputy Chief of Police except such working conditions as are governed by regulations made by the Lieutenant Governor in Council under this Act." (emphasis added)

10. It was common ground that the personal appearance regulation did not fall within the ambit of the regulations made by the Lieutenant Governor in Council under s.74 as referred to in s.16.

11. It was submitted that the relevant portion of regulation 4.31.16 pertains to working conditions and was thus the subject matter of negotiation between the Board and the Association under s.29 and something upon which the Board could not act unilaterally. To deal adequately with this contention would require considerably more evidence as to the collective agreement and its relationship to such issues as personal appearance, and it would be helpful to have the evidence as to the history of these issues between the Association and the Board.

12. It is not essential for the disposition of this appeal that we determine whether or not all personal appearance regulations are in part or in whole the subject matter of negotiation, or conversely the subject matter of unilateral acts upon the part of the Board. On the evidence before us, I am satisfied that the Board had the power to pass the by-law incorporating the regulation pertaining to the moustache. I am not safisfied that merely because a portion of a regulation may be the subject of negotiation as contrasted with subject to negotiation, that the failure of the Association to have its in-put renders the regulation unlawful. Accordingly, I am of the view that the regulation is lawful and thus, the order given under that regulation is lawful.

13. GROUND 2

It was submitted that the regulation in issue was honoured more in the breach than in adherence, and that the Appellant had maintained his moustache in a consistent manner for approximately 8 years and had not been the subject of any criticism until shortly before he was documented; that the application of the regulation to him was discriminatory because it was unevenly enforced and thus it was lawful for the Appellant to disobey the order to comply with the regulation.

14. To succeed in establishing that he had a lawful excuse to disobey the superior's order, the Appellant must demonstrate that the regulation was not uniformly enforced and that he was being unfairly treated to the point where he was the subject of a discriminatory act. It is not essential that the superior officer, in enforcing the regulation, intended it to be discriminatory— only that the act has the appearance and is in fact discriminatory.

15. The evidence is clear that the Appellant wore a moustache that exceeded the regulation. With the exception of a period in 1976, which is depicted in a photograph filed as an exhibit, and at which time the moustache was at its greatest length and most obviously in breach of the regulation, the moustache has remained relatively constant throughout the years.

16. The 1978 Police Yearbook was tendered in evidence and it is obvious from perusing the photographs of a great number of officers that a number of officers offended the regulation.

17. Constable Murphy was aware that the length of his moustache exceeded the regulation, but he preferred its length because it looked better.

18. It was contended on behalf of the Appellant that a number of officers within his own division. Division 23, had moustaches and were not ordered to trim them. These officers were not named or produced at the trial of the matter.

19. The evidence of the appellant's witnesses would not tend to support that contention.

20. Constable Snowball indicated that he had worn a moustache for approximately 1§ years and although he never felt it offended the regulation, he was nevertheless told by a varying number of supervisors that it was in excess of the regulation and he was ordered to trim it. He eventually removed it entirely to avoid orders to trim it.

21. Constable Alfred testified that he was told by Sergeant Best to trim his moustache continually.

22. Constable Young testified that he was told to trim his moustache and he did not feel that he was being singled out. He was aware of others at 23 Division who were instructed to trim their moustaches and did so. Although they complained,they nevertheless did. Constable Kostorowski was told to trim his moustache and he did so.

23. The evidence, in our opinion, falls short of demonstrating any discrimination against Constable Murphy and falls far short of demonstrating that the regulation itself was discriminatory. Consequently, Constable Murphy would not have a legal excuse to disobey the order to comply with the regulation.

GROUND 3

24. It was contended that the £" differential in Constable Murphy's moustache was so insignificant and trivial that it ought not to be the subject of a prosecution. Notwithstanding this submission, it is obvious that Constable Murphy must have viewed the differential as significant and important to him. The -J" differential in the length of the moustache is, without doubt, trivial and of itself hardly the subject matter of days of hearings. While that differential may be the apparent issue in these proceedings, the real issue is the Force's personal appearance regulations and the right to enforce them.

25. To try and achieve any degree of uniformity in the personal appearance of officers requires guidelines, and guidelines by their nature explicitly or implicitly dictate limitations. Prescribed limitations tend to avoid arbitrariness of the sort that may follow trying to enforce a general "neat and tidy" regulation. This is particularly so in times of differing standards of dress and personal appearance.

26. I have already found that the applicable regulation is lawful, thus, the breach of that regulation gives rise to a lawful order to conform, and it is the failure to obey such order that necessitates these proceedings. Some of the officers alluded to other regulations which were enforced by Inspector Adams and which, in the minds of the officers testifying, were questionable They nevertheless obeyed them and to do otherwise would lead to a chaotic situation within the Force. If Constable Murphy had felt that he was being discriminated against, it was open to him at the first suggestion that he should trim his moustache beyond the level at which he found it acceptable, to attempt to negotiate a change in the personal appearance regulation. This could be achieved and obviously was achieved.

GROUND 4

27. It was urged that the Respondent is estopped from enforcing its regulation because it had permitted exceptions to the regulation for such an extended period of time that officers tended to ignore the regulation more than to follow it. This contention has support in the personal appraisals of Constable Murphy and to some degree in the evidence contained in the Police Yearbook. It is obvious that the photographs depict a goodly number of officers whose appearance offends the regulation. This evidence is countered by the testimony of the other officers, including the defence witnesses referred to earlier, wherein it was stated that attempts were made to enforce the regulation.

28. Constable Murphy's contention in this regard would have had greater impact if he had not been told months before being charged to adhere to the regulation. He was in fact warned that his failure to adhere to the regulation would result in charges, and he was given an opportunity to conform with the regulation. If, as he alleges, he v/as lulled into a false sense of security, he had ample opportunity to extricate himself before suffering any consequences.

29. lt was also contended on behalf of the Respondent that the Appellant had entered into a personal undertaking with the Board to abide by the rules and regulations of the Board, and that this was the overriding obligation of the Appellant. The undertaking was entered in evidence and it was suggested that such an undertaking pre-empted any right of refusal of an officer, lawful or not, to disobey a regulation.

30. While I do not subscribe to the theory of the overriding aspect of the written undertaking, it is not necessary for the disposition of this appeal, in my opinion, to rule on that aspect, but if it were, I would be inclined to the reasoning and careful consideration given to this point in the case of Steinberg Inc. and Teamsters Union, Local 419 (December 1982).

GROUND 5

31. The thrust of the Appellant's position in this regard was that he had already been punished by spending three months doing menial tasks, and tasks not normally done by a first-class constable, thus, these proceedings make him the subject of double jeopardy.

32. The evidence pertaining to this issue is somewhat contradictory. Staff Inspector Adams took Constable Murphy off foot patrol immediately upon being charged, but the Constable nevertheless remained in a position which would bring him into contact with the public for approximately ten days before he was sent to the College. At the time he was assigned to the College, he was advised by Inspector Adams that, "This is not to be construed as a form of punishment."

33. Staff Superintendent Webster initially indicated that the Appellant was to be removed from public view and revised that to contend that he was to be removed from association with the other officers at 23 Division to avoid any detrimental influence he may have on his fellow officers. It was submitted by counsel for the Appellant that this was contradictory and inconsistent with what it was that the Superintendent was attempting to achieve.

34. In the first instance, it was suggested by counsel for the Appellant that the public would probably not take notice of the alleged breach as the appearance of so many officers was the same and no public complaint against Constable Murphy had been received over the preceding seven or eight years. This contention is supported by the Constable's early appraisals. Specifically, in the 1976 report, he is described as "neat and clean at all times and meticulous about his appearance" and "he portrays a good image of a police officer to the public." In the 1977 report, he is described as "always neat and clean and his uniform and his civilian clothes reflect an obvious pride in his appearance. He must make a favourable impression on the members of the public he comes in contact with." In 1978, the appraisal form changed, but his general appearance was termed excellent and in 1979, this was repeated. It is noted that all of his appraisal reports to this point were consistently laudatory and depicted an officer with a future.

35. In the second instance, it was suggested by counsel for the Appellant that Constable Murphy was being placed where he would come in contact with many more officers and thus would be likely to have a greater detrimental effect on the Force. This would obviously be contrary to the Superintendent's intended purpose.

36. Staff Superintendent Webster admitted that the type of work that Constable Murphy was required to do at the College would be below his status as a first-class constable. He further stated that he was required to transfer Constable Murphy to the Morality Squad when he was advised that there was no work for the Constable at the College.

37. Staff Sergeants Devonshire and Ferguson testified that they had sufficient work at the College to keep Constable Murphy busy. Staff Sergeant Connolly and Murphy testified that the Association had applied to the Deputy Chief level to have the Constable removed from the College. The Constable was actually moved approximately two days after meeting with then Deputy Chief Ackroyd.

38. The move to the College, while inconvenient because of the travelling time, did provide attractive daily working hours without shift work to the Constable. At the College, Constable Murphy was required to do a variety of clerical tasks, including stapling precis, as well as caring for the shooting range which included stapling and patching targets, recovering lead and ammunition casings and filling ammunition boxes. It was common ground of all of the witnesses testifying in this regard that the type of work required to be done by Constable Murphy was not usually performed by officers of Constable Murphy's status.

39. Subsequent to the charge and during the time the Appellant was assigned to the College, he underwent further personal evaluation reviews. A report was prepared for 23 Division as of April 5, 1980 which was significantly different than the Appellant's earlier reports. Almost without exception Constable Murphy was downgraded in each category of evaluation. It is to be noted that the Constable was at the College during the latter three months of this evaluation period and the appraisals do not appear to be consistent with the evidence of Staff Sergeants Devonshire and Ferguson.

40. The Constable received a further evaluation report in August 1980 from his superiors in the Morality Squad. It is to be noted that these evaluation reports are consistent with Constable Murphy's evaluation prior to the charge and inconsistent with the April evaluation of 23 Division. The discrepancies in the reports were obviously of some concern and the Chief of Police directed that both remain in his personal file.

41. Whether Constable Murphy's removal from his regular duties and assignment to doing menial tasks is tantamount to punishment before conviction, depends on an objective review of all of the events surrounding such assignment and his eventual removal to the Morality Squad.

42. The fact that the Constable's appearance at the time of the charge was not materially different from that of approximately seven years past, belies the need to remove him from public view. The contradictory reasons for sending him and the circumstances surrounding his removal from the College to the Morality Squad, coupled with the assignment to tasks which were below the status of a first-class constable, lead to the inference that the assignment was in fact a punishment. The rather broad and significant reduction in Constable Murphy's evaluation appraisal by 23 Division following the charge and its inconsistency with other evidence, as well as the evaluation of the Morality supervisor, would lend support to that inference.

43. I recognize the need for the Force to take remedial action subsequent to discipline charges being laid and prior to the hearing, but the remedial action must be balanced with the gravity of the charge. The factual background of the charge and the detriment to the Force or the public must be considered. The remedial action must be reasonable in all of the circumstances.

44. Each case must be based on its own facts. In considering all of the factors and weighing the evidence as best I can in the very narrow circumstances of this case, I am of the opinion that Constable Murphy was in fact punished before formal conviction.

45. I would, therefore, grant the appeal on the last ground presented and dismiss the charge.

DATED THIS 18^th DAY of NOVEMBER, 1983

W.T. McGrenere, Q.C., Member