Constable Jeno Huber v. Ontario Provincial Police, 1983 CanLII 3152

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF Ontario Regulation 791, R.R.O. 1980 made under The Police Act, R.S.O. 1980, c. 381 and amendments thereto;

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IN THE MATTER OF an Appeal to the Ontario Police Commission by:

CONSTABLE JENO HUBER, #3917 ONTARIO PROVINCIAL POLICE

DECISION

Panel: W. T. McGrenere, Esq., Q.C. - Member John P. MacBeth, Esq., Q.C. - Vice Chairman

Hearing Date: Tuesday, June 14th, 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

1. This is an appeal by Ontario Provincial Police Constable Jeno Huber, #3917, from his conviction of the charge of neglect of duty, in that he did fail to report a matter that it was his duty to report, contrary to s.l.(cHvi) of the Code of Offences contained in Regulation 791 made under The Police Act, by Superintendent H. G. Campbell, on the 4th day of February, 1983, and from the punishment imposed of forfeiture of two days' pay.

2. The usual practice is to have appeals of this nature proceed by way of trial de novo, but both counsel agreed that the state—ment of facts submitted by Inspector A. M. Penrose comprised the facts upon which both counsel were relying. Upon closer scrutiny, however, it became clear that counsel for the parties were not I agreement as to the procedure to be followed at Downsview relative to a member's responsibility to inform the Court officer of hisinability to attend Court.

3. It was then agreed by counsel that the statement submitted by Inspector A. M. Penrose as to the following facts, would be relied upon only:

FACTS

Provincial Constable J. HUBER was required to attend Provincial Offences Court at 1500 hours, October 13, 1982 as a witness in a Highway Traffic Act matter arising from a motor vehicle accident he had witnessed. Prov. Const. K. A. FISCHER #5833 was the investigating member.

HUBER failed to attend Court. Prov. Const. FISCHER, both drivers in the motor vehicle accident and Defence Counsel were present. The charge of "Unnecessary Slow Driving", Section 113 Highway Traffic Act, was dismissed. Provincial Constable J. K. BARROW #3943,Downsview Traffic Court Officer, advised-j that this matter was adjourned from June 23, 1982 to October 13, 1982 for trial. Prov. Const. HUBER was in Court at the time of this adjournment and, further, he had been given witness attendance notice by BARROW advising of his required presence on October 13, 1982. HUBER reported off duty, sick, prior to his 0700-1500 shift, October 12 and 13, to Cpl. P. ROBERTSON, night shift supervisor. HUBER did not indicate in any way that he was required in court October 13, 1982 when he spoke with Cpl. ROBERTSON. ROBERTSON made the entry on a rough copy of PCS 4 form, which was then completed by HUBER on October 15, 1982 and signed by Cpl. P. HISTED #1627, HUBER'S day shift supervisor.

4. In addition, the evidence of Inspector Harold Fawcett and Corporal George Baddeley was called viva voce.

5. Inspector Fawcett testified that Downsview was the largest detachment in the OPP and there was no written policy as to how members were to communicate their inability to attend at Court. He stated that each officer has a regular Court duty and a list is posted indicating the officers' Court schedule. If the officer is an investigating officer or directly responsible for the prosecution of the case, his name will appear on the Court list. If the officer is simply a witness, then his name would not appear on the list, but would be found in the Court files and would be known by the investigating officer. When an officer calls in sick, he is expected to advise the supervisor of any Court commitment he may have on that date.

6. Inspector Fawcett was of the opinion that it is the sole responsibility of an officer who knows he has a Court commitment to ensure that the proper persons are advised of his inability to attend. He expressed the view that such policy had existed at Downsview prior to his assignment as the Detachment Senior Officer in 1958, and that Constable Huber had been an officer assigned to Downsview since 1973, and he would know the procedure.

7. Corporal Baddeley confirmed much of the evidence of Inspector Fawcett. He stated that under normal circumstances, an officer calling in sick "is reasonably expected to tell the supervisor that he has a Court date." The supervisor, in turn, would alert the Court officer.

8. He confirmed that a supervisor could review the Court schedule as posted to determine if an investigating officer had Court duty on a particular date and this would serve as a check on the system. In the case of an officer appearing as a witness, however, this would require the supervisor to check either the Court files or with the investigating officer to see if the sick member was to be a witness.

9. The necessity of ensuring that the Court officer is alerted to the inability of a member to attend, is obvious, and the failure to do so results in both an inconvenience to others and possibly a dismissal of the charge without an examination of the merits.

10. We are satisfied that an officer's duty relative to Cour attendances extends to communicating his inability to do so when he is ill or otherwise unable to attend. We are satisfied that the policy existed as testified to by Inspector Fawcett and Corporal Baddeley. We do not believe that the failure to express this procedural policy in writing negates, or in any way lessens, the responsibility of an officer to communicate his inability to attend, to the proper person.

11. We are not satisfied that an officer discharges his responsibility in the circumstances of this case by simply reporting to his supervisor that he is ill. We feel there was an obligation on the Constable to advise his supervisor that he was required in Court on that date as a witness.

12. In the circumstances, the appeal as to conviction is dismissed.

13. The procedure of charging an officer under s.l(c)(vi) appears to be unique, and because of the unusual nature of the circumstances, we feel there should be some modification in the penalty, and we therefore alter the punishment from a forfeiture of two days' pay to a forfeiture of one day's leave or one day off.

DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 27 day of June, A.D. 1983.

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

John P. MacBeth, Q.C., Vice Chairman