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 THOMAS LARRY PATTINSON.
DECISION
Panel: John P. MacBeth, Q.C., Vice-Chairman Dr. Reva Gerstein, Member W. T. McGrenere, Q.C., Member
Hearing Date: August 29, 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
Before: John P. MacBeth, Q.C., Vice-Chairman Dr. Reva Gerstein, Member W. T. McGrenere, Q.C., Member
Appearances: W. D. Mackie, Q.C., Counsel for the Appellant Frederick E. Leitch, Q.C., Counsel for the Respondent
Hearing: August 29, 1984
This is an appeal by Sergeant Thomas Larry Pattinson from a conviction by Staff Inspector R. Taylor on the 18th day of November, 1983, of a charge of discreditable conduct. The punishment prescribed required Sergeant Pattinson to forfeit 15 days' leave or days off. This matter was appealed to the local Board of Police Commissioners, wherein the conviction was upheld.
While a number of grounds for appeal were set out in the notice of appeal, counsel for the Appellant relied on only three grounds at the appeal hearing:
the charge sheet was defective and incurable by amendment;
the evidence before the presiding officer was insufficient to support a finding that "an association" existed between the Appellant and Mark Doersam;
the evidence before the presiding officer was insufficient to support a finding that Mark Doersam was a "known criminal."
Ground 1
It was urged by the Appellant (a) that the Respondent's failure to accurately denote the section number of the charge was fatal to the charge and (b) that because a motion to quash was made before a plea was taken, the trial officer had no jurisdiction to amend the charge sheet. The reasoning of Lamer, J. in the unreported decision of the Supreme Court of Canada, R. v. Wis Development Corporation Ltd., was relied upon for the latter proposition.
The charge in the charge sheet read as follows:
"Sergeant Thomas Larry Pattinson, stands charged: with discreditable conduct that he did while a Police Officer for the Regional Municipality of Halton, between April 11, 1981 and January llth, 1982, contravene Section l(i)(a) of the Code of Offences Regulation 791 of the Police Act of Ontario, and did act in a manner likely to bring discredit upon the reputation of the Halton Regional Police Force by associating with Mark Doersam, a known criminal and did thereby commit a major offence."
It is common ground that no such section number as l(i)(a) exists under the Code of Offences. It is obvious that (i) and have been transposed.
The Respondent submitted that the charge against Sergeant Pattinson was clearly set out on the charge sheet in accordance with the provisions of The Police Act, and that no amendment was necessary.
It was submitted by counsel for the Respondent that at the time that the Charge Sheet was signed, there was no section in the Code of Offences which could be described as Section l(i)(a). There was no other offence so designated by section number and accordingly no issue of duplicity could arise. The only issue which could arise was as to whether or not any offence known to the Code of Offences had been charged. This argument must proceed on the basis that the statement of the appropriate section numbers constitutes th ruling portion of the Charge Sheet and is paramount to the words next following which set out the allegations of the charge. Counsel urges that this proposition is erroneous and contrary to law.
In support of the Respondent's submissions, the following authorities were relied upon: MacDermaid v. Durham Regional Police Force, Beuk v. Ontario Police Commission and Wlodarek v. Municipality of Metropolitan Toronto Board of Commissioners of Police.
In the MacDermaid case, Zuber, J. had this to say:
"It is common ground in this case that the requirements with respect to the particulars of the offence have been satisfied. The problem revolves around the question as to whether or not the charge has been sufficiently identified. In our view it has ——. We think the words of Judson, J., as he then was, in the Mackenzie case are appropriate here. The offence has been more than adequately identified to Sergeant MacDermaid. In dealing with this aspect of the matter as well, we are not of the view that these matters must be construed with the same strictness that was once the law in criminal matters prior to the passage of the Criminal Code and the appropriate measures for amendment."
- In R. v. Wis, Lamer, J. stated that:
"When accused, the citizen shall then be treated fairly. This requires that he must be able clearly to identify what he is alleged to have done wrong so that he may prepare his case adequately..."
Later in the decision, Lamer, J., by reference to the Brodie decision, noted that the statement against an accused required the necessity of specifying time, place and matter.
We are satisfied, on the evidence before us, that the charge against the Appellant was sufficiently identified and particularized to permit the Appellant to know the offence with which he was charged, and to enable him to prepare his case adequately. We are of the view that the decisions referred to us by counsel for the Respondent are applicable and support the Respondent's position.
Ground 2
It was submitted by counsel for the Appellant that the evidence produced on behalf of the prosecution in this matter fell far short of demonstrating that an association existed between Sergeant Pattinson and Doersam.
While it is true that the evidence did not disclose a relationship between Sergeant Pattinson and Doersam that involved their wives or socializing over cocktails or dining, we are nevertheless satisfied that the evidence did support "an association" between Sergeant Pattinson and Doersam.
The evidence is clear that these two gentlemen dealt with each other over nine months and while the relationship arose out of a hiring by Pattinson of Doersam to do work in his basement, the relationship nevertheless grew to the point that they were more than casual acquaintances.
Sergeant Pattinson obtained wood from the "Doersam property" and provided a log splitter, purportedly without recompense; loaned Doersam his vehicle; and went with Doersam to another wood lot to obtain wood. The relationship had obviously reached a point of some considerable familiarity because Doersam had referred to the Sergeant by a nickname and, in turn, the Sergeant had mentioned to one of his fellow officers that he would speak to his "friend" relative to a motorcycle incident.
Ground 3
It was submitted that the presiding officer erred in finding that Mark Doersam was a known criminal. This aspect of the case, on his own admission, was very troublesome to the presiding officer. We find the aspect equally troublesome.
To register a conviction, the prosecution must prove on a balance of probabilities that Doersam was a known criminal. The term "known" in the charge, we believe, connotes a certain reputation in the community; it connotes a certain infamy. The evidence must demonstrate that Doersam was not only a criminal, but that his reputation in the community was such. It must be shown that Sergeant Pattinson knew that Doersam had such a reputation. This can be done either by direct evidence or circumstantial evidence.
The direct evidence disclosed that Doersam had a conviction for possession of drugs for the purpose of trafficking, which had been registered some time in 1980. Sergeant Pattinson denied any knowledge of this conviction. Doersam indicated to Sergeant Pattinson early in their relationship that he had been investigated by one of Sergeant Pattinson's fellow officers, but this was never clarified nor apparently followed up in any way by the Appellant. Apart from Doersam's comment, there was no evidence which suggested that Doersam was a criminal or that his reputation as such ought to have been known to Sergeant Pattinson.
There was an incident concerning the theft of two motorcycles in April 1981 which, with the certainty of hindsight, not only seemed very suspicious but ought to have been followed up more closely.
Counsel for the Respondent submitted that Sergeant Pattinson ought to have been more vigilant and ought to have completed a CPIC check on Doersam after learning that Doersam had been investigated for drugs. It was further suggested that Sergeant Pattinson's failure to do so was tantamount to "willful blindness." The Court of Appeal decision in Regina v. Currie, 1975 CanLII 1347 (ON CA), 24 C.C.C. (2d) 292 would not support this submission. Martin, J.A. stated:
"The fact that a person ought to have known that certain facts existed, while it may, for some purposes in civil proceedings, be equivalent to actual knowledge, does not constitute knowledge for the purpose of criminal liability, and does not by itself form a basis for the application of the doctrine of wilful blindness."
Prior to his arrest in January 1982, Doersam was undoubtedly less than a sterling character, but the direct evidence falls far short of demonstrating that he was a known criminal. Indeed, noneof the eight officers who testified at the hearing had even heard of Doersam, let alone knew him to be a criminal.
The evidence is silent on whether a CPIC check was done by the investigating officer in the incident of the two stolen motor- cycles. It would not seem to be an unfair inference that if suc h evidence existed, it would have been either made known to Sergeant Pattinson or produced at his hearing. One would have thought that a likely time to run a CPIC check would have been at the time of the investigation of the stolen bikes. We do not find it unusual that Sergeant Pattinson did not, in the circumstances of his relationship with Doersam, run a CPIC check on him.
Prior to his arrest in January 1982, Doersam was undoubtedly less than a sterling character, but the direct evidence falls far short of demonstrating that he was a known criminal. Indeed, none of the eight officers who testified at the hearing had even heard of Doersam, let alone knew him to be a criminal.
The evidence is silent on whether a CPIC check was done by the investigating officer in the incident of the two stolen motor cycles. It would not seem to be an unfair inference that if such evidence existed, it would have been either made known to Sergeant Pattinson or produced at his hearing. One would have thought that a likely time to run a CPIC check would have been at the time of the investigation of the stolen bikes. We do not find it unusual that Sergeant Pattinson did not, in the circumstances of his relationship with Doersam, run a CPIC check on him.
Sergeant Pattinson's conduct must be viewed in the light of the known facts between April 1981 and January 1982. Subsequent events depict Doersam as unsavoury, dishonest and insolent. The evidence of what existed between April 1981 and January 1982 did not present Doersam in the same light. While Sergeant Pattinson may have been naive and somewhat casual about his relationship and his responsibilities, we do not believe that his conduct supports a conviction of discreditable conduct.
The appeal is therefore granted and the conviction and penalty quashed.
DATED at Toronto this 3rd day of October , 1984.
John P. MacBeth, Q.C., Vice-Chairman
Dr. Reva Gerstein, Member
W. T. McGrenere, Q.C., Member