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 Gregory Murray

Metropolitan Toronto Police Force

DECISION

Panel: Reva Gerstein, O.C., Ph.d., Psych.c.

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

Hearing Date: Friday, September 21st, 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:

Reva Gerstein, O.C., Ph.d., Psych.c.

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

Appearances:

Barrie Chercover, Esq.,

Counsel for the Appellant

The Appellant

Ian N. McLean, Esq.,

Counsel for the Respondent

Staff Inspector John Addison,

Metropolitan Toronto Police

Held: Friday, September 21st, 1984.

1. This is an appeal by Police Constable Gregory Murray of the Metropolitan Toronto Police Force from his conviction of insubordination in that he did without lawful excuse, disobey, omit or neglect to carry out a lawful order, contrary to Section 1 (ii)(b) of the Schedule Code of Offences, Regulation 680, R.R.O. 1970and did thereby commit a Major offence an appeal from his conviction of insubordination in that he did without lawful excuse, disobey, omit or neglect to carry out a lawful order, contrary to Section 1 (ii)(b) of the Schedule Code of Offences, Regulation 680, R.R.O. 1970, and did thereby commit a Minor offence.

2. The Statement of Particulars on the former charge reads

as follows:

"Being a member of the Metropolitan Toronto Police

Force, attached to number 52 Division, you on Wednesday,

July 29, 1981, were working the third relief assigned to

scout car 5207. At about 10:20 p.m., you were observed

by Sergeant Gerard Stewart, 1144, seated in the front

passenger seat of scout car 5207, a yellow scout car

with no screen. In the rear of the scout car were two

male citizens, one a complainant relative to a theft

complaint and the other, one Daniel Homer, 309 St.

George Street, who was under arrest for causing a

disturbance. You failed to carry out Administrative

Procedure Number 1 (i), Section 3 (a), issued by the

Chief of Police under authority of Regulation 5.4.6, the

Regulations, the Metropolitan Toronto Police."

3. The Statement of Particulars on the latter charge reads as follows:

"Being a member of the Metropolitan Toronto Police

Force, attached to number 52 Division, you on Wednesday,

July 29, 1981, were working the third relief assigned to

scout car 5207. At about 10.20 p.m., you were observed

by Sergeant Gerard Stewart, 1144, and Sergeant James

Bowman, 639, seated in the front passenger seat of scout

car 5207, near to the intersection of Yonge Street and

Breadalbane Street, eating a pear, contrary to

Regulation 4.31.13, the Regulations, the Metropolitan

Toronto Police."

4. The Notice of Appeal set out the following grounds.

WITH RESPECT TO THE MAJOR CHARGE OF INSUBORDINATION

1. The Presiding Officer erred in law and in fact in failing to conclude that the decision by Constables Murray and Grant to transport two male citizens in the rear of their cruiser in the circumstances in question was a proper exercise of their authority

and duty as police officers and constituted a lawful

excuse for their failure to comply with

Administrative Procedure l(i), Section 3(a).

2. The Presiding Officer misconstrued the evidence

which clearly demonstrated uneven and random

enforcement of the Regulation in question such that

the appellant ought not to have been convicted.

3.The Presiding Officer misconstrued the evidence in

failing to find that the Regulation in question was

being subjectively enforced by the whim of

supervisory officers in such manner that that

conviction of the appellant constituted

discriminatory enforcement of discipline.

4. The Presiding Officer erred in failing to conclude

that Constable Murray's mistake, if any, was no more

than a mistake in judgment which ought not to

attract disciplinary consequences.

5. In the alternative, the sentence imposed was unduly

excessive and harsh in all of the circumstances.

6. Such further and other grounds of appeal as may

appear on the face of the proceedings and records

and from the transcript and as counsel may a

5. Metropolitan Toronto Police Force Administrative

Procedure Number 1 (i) under the heading "Arrest and

Release" and under part 3 thereof Transports: reads as

follows:

"3. Transports:

(a) In police car (no screen):

(i) places prisoner in right rear seat,

(ii) when escort available, ensures escort sits

in left rear seat.

(b) Injured prisoners to the nearest hospital, if

medical attention required;

(c) Prisoners not requiring medical attention, to

the proper facility;

(d) Prisoners to the police station, advising

officer in charge of all particular

immediately."

6. Chapter 1 of the Regulations of the said Force contains in the Definitions, section 1.1.17 which reads as follows:

"Administrative Procedure" means a mandatory course of

action for members of the Force."

and

1.1.18 "Operational Procedure" means a course of action,

prescribed for members of the Force, which may be varied

when circumstances dictate."

7. On the occasion out of which these charges arose there

were two male passengers in the rear seat of a police

vehicle with no screen. In the left rear seat was a

complainant who had been consuming alcohol but was

causing no trouble. In the right rear seat was a

prisoner taken into custody for causing a disturbance

but who likewise was creating no trouble after his

arrest. The presence of the two passengers in the

vehicle arose out of two separate and unrelated

occurrences.

8. Inherent with setting out procedures in detail is the problem of fitting any one incident within the four corners of the procedure.

9. Here the prisoner was in the right hand seat. An escort was present but he sat in the front right seat rather than in the rear left. Of course the rear left was where the complainant was sitting.

10. Here the prisoner was in the right hand seat. An escort was present but he sat in the front right seat rather than in the rear left. Of course the rear left was where the complainant was sitting.

11. Procedures are prepared for valid reasons. This particular one with a view to the safety of both officers and passengers. Procedures are disregarded at risk.

12. By the definition "administrative procedures" means a mandatory course of action. This denies the officer the privilege of applying his own discretion to the situation.

13. The Major charge is that without lawful excuse the officer omitted or neglected to carry out a lawful order.

14. To constitute insubordination it seems to me that an order must be clear and unequivocal.

15. No written administrative procedure, that is to say, no clear order, was produced as to how the transportation should be handled in the circumstances confronting the officers.

16. Their conduct was to treat the matter as an operational procedure rather than as an administrative procedure.

17. This would appear to be reasonable conduct in view of the fact that there was no clear administrative procedure to cover the facts of the situation presented to them.

18. We therefore allow the appeal on the major charge for reasons similar to those set out in ground number 1 of the Notice of Appeal. We reject grounds 2 and 3 and pass no opinion on the balance of the itemized grounds of appeal concerning the major charge.

19. The appeal in respect to the Minor charge presents problems that trouble us as members of the Commission.

20. Here we are presented with a very specific "Regulation". Under Section 4.31.13 "Prohibitions" there are listed many instructions for conduct of members of the Force while in uniform: one of these instructions under the general words of "Members while in uniform shall not:" reads as follows:-

"Consume food or drink, with the exception of water,

except in the guardroom, or other designated area of a

police building or when permitted to do so by a superior

ranking officer".

21. The evidence establishes that Constable Murray was in fact eating a pear while in uniform in a public place and without permission

22. On examination of the grounds for appeal on the minor charge we reject item 1 on the basis that there is evidence to prove breach of all elements of the regulation.

23. We reject item 2 of the grounds of appeal in that regulations governing conduct and uniformity of a uniformed force which one joins voluntarily can hardly he regarded as unreasonable and unnecessary restriction on personal liberty. We are satisfied that it is not in the public interest nor to the enhancement of the police image for members of police forces to consume food while on street patrol.

24. We accept Sergeant Gerard Stewart's evidence at page 110 of the transcript of evidence that consumption of the pear in the circumstances was "unprofessional".

25. Grounds 3 and 4 deal with uneven or random enforcement such as to constitute discriminatory enforcement.

26. Because an offence is not prosecuted on every occasion it is observed, does not invalidate the regulation whichcreates the offence. The use of the regulation might be random without negating it.

27. On re-examination at page 115 of the transcript of evidence, questions are asked of Sergeant Stewart and answers given as follows:-

"Q. Sergeant, if the pear, the coffee or whatever we've

discussed today had been eaten or drunk in a more

discreet manner in a more discreet place, would you

have had any objections?

A. No I wouldn1t.

Q. But it did upset you in the fact they were in the

middle of an investigation and in full view of the

public?

A. Yes it's - as I indicated before, the most serious

time that I've ever seen that offence. Like I've

seen lots of people eat in cars but to me this was

the most unprofessional manner that I've observed."

28. The evidence supports that the drinking of coffee and the consumption of food while in uniform is now acceptable if done with discretion. It appears to be the common practice.

29. Practice has amended the regulation prohibiting the consumption of any food or drink with the exception of water by adding the word "except with discretion". The offence has become a matter of professionalism rather than the breach of a regulation much of which has been abandoned.

30. This charge has been laid under a strict regulation which limits an officer, save in special circumstances, to the drinking of water only, while in uniform.

31. This gives rise to the question - Can practice amend a regulation?

32. We do not believe so because a regulation requires adoption in a prescribed manner. Amendment by adopted practice would give rise to ambiguity.

33. The more pertinent question is - Can disuse or apparent abandonment nullify a regulation?

34. Counsel for the appellant referred us to a number of labour cases supporting the principle against discriminating enforcement and to situations in which the doctrine of estoppel would apply.

35. Re Frito-Lay Canada Ltd, and Allied Employees 1975 CanLII 2059 (ON LA), 10 L.A.C. (2nd) 234 at page 243 deals with the matter of estoppel in these words "It would, in our view, be grossly unfair to allow the company to suddenly and without any prior warning or admonition, rely on the conduct of the grievor to support his discharge, when by its own conduct it had led him and indeed the other driver-salesmen such as Mr. Gillies to believe that such conduct was permissible and proper behaviour".

36. At Page 245 the decision continues, "It must be noted however, that in deciding that the company is estopped from relying on the conduct of Mr. McMurren as the basis on which they could discipline him, such a conclusiondoes not operate to forever deny the employer his righ to insist on the terms of the agreement. From the description of the doctrine itself, as well as from earlier awards, it is manifest that even when all of the conditions of equitable estoppel have been met, the doctrine itself, in the usual case, merely suspendsrather than extinguishes strict legal or contractual rights. Rather the case law and arbitration awards have recognized that the party against whom the estoppel hasbeen applied can bring it to an end either on reasonable notice or when the conditions which supported the estoppel have come to an end. The effect of the application of equitable estoppel is simply to precludethe party against whom it is raised from insisting on its contractual or legal rights prior to their bringing the estoppel to an end where, as here, someone has relied to their detriment on the representation or conduct of that party.

37. Analogizing between the foregoing quotes and the facts before us: It would appear that an understanding has developed within the Metropolitan Toronto Police Force that drinking and eating with discretion, i.e. in a manner so as not to bring discredit to the force isacceptable even though contrary to the strict prohibition of the regulation.

38. Failure to enforce would not then negate the regulation but due notice would be required before the regulation could again be strictly enforced. If due notice is not given the doctrine of estoppel would apply.

39. The present facts would not come within the doctrine of estoppel since the regulation has not been modified by practice to such an extent that it would include the consumption of a pear while on duty and escorting two members of the public. The original regulation still stands and applies to the facts in this case.

40. If the matter were to end here the reasoning above would indicate that the appeal on the minor charge should be dismissed, but, the matter does not end here.

41. There are further points which give rise to difficulty. Section 16(4) of Regulation 791, R.R.O., 1980 reads as follows:-

"A person found guilty of a minor offence is liable to,

(a) an admonition; or

(b) forfeiture of leave or days off not exceeding

five days; or

(c) forfeiture of pay not exceeding three days'

pay."

42. The penalty imposed with regard to the Minor

Insubordination was a "reprimand" for which there is no

provision in the Regulations dealing with Minor

offences. Section 20 (2)(f) provides for a "reprimand"

for Major offences

43. We have previously reached the conclusion that the regulation was still in effect in so far as the circumstances of this case. It does, however, concern us that a regulation which is so obviously outdated and so greatly modified by practice should be used to lay charges in these circumstances. As the hearing officer said, "It is a minor insignificant matter which has been blown out of proportion and perhaps should have been dealt with at divisional level by caution, counselling or some form of documentation" , (pages 206 - 207 of transcript).

44. In view of the problem created by the imposition of a wrong penalty, the remarks of the trial officer concerning these particular circumstances and the many exceptions made to the written Regulation we therefore also allow the appeal on the minor charge.

45. On the surface it might appear that by supporting the appeal the decision is condoning inappropriate or non-professional behaviour on an individualistic basis. In no way is this intended.

DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 5th day of December, A.D. 1984

Reva Gerstein, O.C., Ph.d., Psych.c.

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