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;
AND IN THE MATTER OF an appeal to the Ontario Police Commission by FREDERICK SCHOFIELD.
DECISION
Panel: W. T. McGrenere, Q.C., Member
Hearing Date: September 11, 1984
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
This is an appeal by Frederick Schofield, Police Constable 6449 of the Metropolitan Toronto Police, from a penalty imposed by the presiding officer, Superintendent R. Fleming, following a hearing held on March 22, 1984 at 590 Jarvis Street, Toronto, on a major charge of discreditable conduct alleged to have been committed by him on August 2, 1983, contrary to s.l(a)(vii) of the Schedule Code of Offences, Ontario Regulation 791/80, made under The Police Act. The conviction and punishment were confirmed by the Board of Commissioners of Police of Metropolitan Toronto on March 22, 1984, with a provision that they directed that the gradation in rank from First to Second Class Constable be reviewed after three months.
The conviction for discreditable conduct was based on the fact that the officer had been convicted in Provincial Court of common assault on one John Leu on September 18, 1982.
With the exception of one aspect, the facts upon which the trial officer, Superintendent R. Fleming, assessed the penalty were not in issue. They can be referred to as follows:
On the 18th day of September, 1982, a shoplifter was apprehended by an employee of Collegiate Sports Warehouse and the accused officer, who was on pay duty. The shoplifter was returned to the store and questioned by the officer and during the course of the questioning, the officer used his baton in jabbing the shoplifter in the stomach. He was told that if he did not tell the truth, the officer was going to hit his legs and he would be sitting in a wheelchair. The officer grabbed the shoplifter by the collar of his shirt and pushed him hard against the wall. The shoplifter was asked where he was born and whether he was a Canadian citizen, and it was suggested that if this had happened in Taiwan, the accused's birthplace, the police would have broken him in five pieces. The shoplifter did not require medical
The above facts are accepted by the defence, with the exception that there appears to have been some vagueness at the original hearing as to whether or not the officer did jab the shoplifter in the stomach. From my reading of the evidence, it would appear that the Provincial Court was told that the officer had used his baton. Irrespective of that issue, it is clear that there was an unprovoked assault by the officer.
The Appellant advanced five points in support of his submission that the penalty administered was erroneously based, excessive and harsh in the circumstances. The main thrust of the Appellant's position, however, was really twofold:
the punishment was inconsistent with prior precedent on the Metropolitan Toronto Force; and
the punishment in this particular case should be more lenient than normal and reflect the factors leading up to the incident and the fine record of the accused officer.
In support of the contention that the punishment was inconsistene with prior cases, reference was made to nine prior cases involving assaults. In each incident, the assault was, on the face of it, more severe than the case at hand. It was admitted that provocation appeared to be involved in each of the precedent cases, and it similarly was admitted to be absent in this case. The range of penalties administered in the precedent cases varied from a reprimand to a loss of seventeen days.
In support of the second contention, reference was made to the stress that the Appellant was under at the time of this incident, which stress arose out of the poor health of the Appellant's wife, the poor health and behavioural problems of his son, and his concern about policing in general. The latter arose out of mixed feelings surrounding his involvement with the murder of Constable Sweet. Ke has sought, and continues under, medical care and he has committed himself through the Police Association to assisting other officers suffering from stress.
It was contended that the Appellant has an exemplary record, both on the Force and in the community, and there is nosuggestion that the transgression giving rise to this charge had occurred I the past, nor is it likely to occur in the future.
Each case must be judged on the facts peculiar to it. Consistency in the discipline process is often the earmark of fairness. The penalty must be consistent with the facts, and consistent with similar cases that have been dealt with on earlier occasions.
While it is true that the precedent cases relied upon by the Appellant were not produced for consideration, there was sufficient detail given to create a general understanding of how the Respondent had dealt with earlier assaults. Conversely, no precedent was tendered by the Respondent to show that the punishment was consistent with the Respondent's earlier decisions.
There is no doubt that the matters giving rise to the charge against the Appellant are serious and require a sufficient degree of punishment to be remedial to both the Appellant and fellow officers. The punishment also must impress the public that such conduct on an officer's part attracts appropriate sanctions.
I have reviewed the Commission's decisions pertaining to assault and reduction of rank. It is only with some hesitation that I am inclined to vary the punishment. I am satisfied that the trial officer and the Board of Police Commissioners both demonstrated a degree of leniency in their judgments, but I think the reduction in rank in the circumstances is too severe and inconsistent with earlier decisions of the Force and of this Commission.
I therefore grant the appeal and fix the Appellant's penalty at a forfeiture of twelve days' leave or days off.
DATED at Toronto this 29th day of October, 1984
W. T. McGrenere, Q.C., Member