Constable John David McLauchlan v. City of Peterborough Police Force, 1984 CanLII 3107

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 JOHN DAVID McLAUCHLAN

of the City of Peterborough Police Force

DECISION

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

Hearing Date: Friday, October 12th, 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, Esq., Q.C.

Appearances:

Raymond P. Taillon, Esq.,

Counsel for the Appellant

The Appellant

G.H.T. Farquharson, Esq., Q.C.,

Counsel for the Respondent

Inspector R. Lewis,

of the City of Peterborough Police Force

Held: Friday, October 12th, 1984

1. This is an appeal by Police Constable John David McLauchlan of the City of Peterborough Police Force from his conviction of neglect of duty in that he neglected to promptly and diligently perform his duties under Section 1 (c) (i) of the Schedule Code of Offences set out in Regulation 791 made under the Police Act. He did not appeal the penalty imposed.

2. The matter was heard by Presiding Officer John Conlin, Staff Inspector, with the City of Peterborough Police Force with evidence commencing on the 18th April, 1983 and the decision being delivered on the llth May, 1983

3. The decision of the Presiding Officer was appealed to the Board of Commissioners of Police which Board appointed The Honourable Judge Lloyd A. Woods to hear the appeal. The appeal was heard and dismissed on the 14th of March, 1984.

4. The appeal to this Commission was based on the following grounds:-

5. Constable McLauchlan was convicted of an offence of

which he was not charged. His conviction was based

on a failure to report an incident and is an offence

covered in Schedule l(c)(vi) whereas he was charged

only under Section l(c)(i).

2. In the alternative, the conviction was not supported

by the evidence in that he did report the matter to

a superior officer, both directly and indirectly.

3. In the alternative, he was convicted of failing to

investigate further in that he failed to question

other witnesses. This finding is not supported by

the evidence.

The evidence was that an officer on a rest day or

day off, which Constable McLauchlan was, would not

be expected to investigate the matter further.

4. In the alternative, charge that he failed to

promptly investigate the complaint. The evidence of

prosectuion witnesses was that a statement was taken

from the complainant within five minutes of the

alleged incident.

5.In the alternative, he was charged that he failed to

promptly investigate the complaint and if found

justified to take the appropriate action. There was

no evidence as to what the appropriate action was;

hence the prosecution failed to prove that the two

elements of the offence, that is promptly

investigate and take appropriate action.

5. The schedule of offences as set out in Regulation 791 contains offences which are broadly worded and others which are more specifically worded. Because a particular course of conduct may fall within a specifically worded offence it does not follow that a charge based on the more broadly worded offence must fail.

6. In the matter of reporting the incident I adopt the words of Judge Woods in his ruling when he states:

"I am satisfied on the evidence that Constable

McLauchlan neglected or omitted to report the incident.

I do not believe on the evidence what he said to

Constable Nolasco or to Sergeant Nichols, nor if I can

use the term... conversational nature, in which it was

said, amounts to a reporting, in this context. This is

especially true when the evidence of Nichols and Nolasco

is examined in its entirety. Nor is the fact that

Constable McLauchlan told the Crown Attorney of the

results of the interview with McPhee a reporting, as the

Crown Attorney was not his superior for the purpose of

an investigation of a new offence."

7. It seems to me that the kind of report required is a transferring of responsibility by a handing over and an acceptance. "Here is my report, my job is completed, the next step is yours", followed by some indication that the transfer of responsibility has been accepted. In the case before me there is no definite person to whom transfer was made, or by whom it was accepted, no indication that the task was completed, to the contrary, a relevant statement was left in Constable McLauchlan's locker.

8. I am satisfied that Constable McLauchlan had a duty to follow this matter to a greater extent and more thoroughly than he did and by his neglect to do so he committed the offence with which he was charged.

9. I do not accept the argument that the police officer's responsibility in this matter was limited by the fact that although on court duty he was on his day off.

10. I do, therefore, dismiss this appeal

DATED at the City of Torontoin the Municipality of Metropolitan

Toronto, this 30th day of October A.D. 1984.

John P. MacBeth, Q.C.,

Vice Chairman