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:

STAFF SERGEANT GLEN HAYTER

SARNIA POLICE FORCE

DECISION

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

Hearing Date: Monday, March 26th, 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:

Barrie Chercover, Esq.,

Counsel for the Appellant

The Appellant

Carl Fleck, Esq., Q.C.,

Counsel for the Respondent

Held: Monday, March 26th, 1984

1. This is an appeal by Staff Sergeant Glen Hayter of the City of Sarnia Police Force. He appeals his conviction and penalty imposed by Presiding Officer Deputy Chief R. J. Bambury following a hearing held o the 29th August, 1983 on a major charge of insubordination alleged to have been committed by hi on the 2nd day of May, 1983, contrary to Section l(b) (ii) of the Schedule Code of Offences, Ontario, Regulation 791, R.R.O. 1980.

2. Both conviction and penalty were confirmed by the Sarnia Board of Commissioners of Police on the 4th day of October, 1983.

3. The appeal was made on a number of grounds as set out in the Notice of Appeal.

4. At the commencement of the hearing counsel for the respondent questioned the jurisdiction of this Commissioner sitting as the sole hearing officer. An authorization was produced and marked as Exhibit 1 to this appeal which reads as follows:- March 19th, 1984.

I hereby authorize John P. MacBeth, Esq., Q.C., Vice Chairman of the Ontario Police Commission to conduct the hearing of the appeal of Staff Sergeant Glenn Hayter of the City of Sarnia Police Force. This authorization is given under Section 60 of the Police Act.

Shaun MacGrath,

Chairman.

1. After the production of this Exhibit both counsel agreed that neither one of them in so far as this particular case is concerned would use the fact that the Commissioner was sitting by himself as a grounds for further appeal.

2. At the outset of considering this appeal I am confronted with the Divisional Court ruling in re Giles and Halton Regional Police Force et al 33 O.R. (2d) page 666.

3. The Giles case examines the interpretation of what is now Sec. 6 of R.R.O. 791 of the Police Act.

4. In the case before me the evidence is that there was no written complaint, the Chief himself having ordered the laying of the charge. The Giles case indicates that a written complaint is a necessity. Labrosse J. although agreeing with the result reached by the president of the Court did not consider it necessary to deal with the issue of whether the complaint must be in writing.

5. Counsel for the respondent argued that the Giles case could be distinguished in that here the Chief himself had instructed that the charge be laid.

6. What purpose is served by the Chief preparing a written complaint to place before himself so that he may consider whether the allegation warrants the signing of a Charge Sheet?

7. He has already made that determination.

8. Section 5 of Regulation 791 would appear to provide all of the information necessary to ensure full knowledge ofthe charge and sufficient particulars for the person charged to prepare his defence.

9. What then is the purpose of the written complaint?

10. Section 6 might appear superfluous unless it is there for such purposes as:

(a) to provide a means for any officer regardless of

rank, to complain about the conduct of another

police officer.

(b) to inform the person charged as to who is the

originator of the complaint.

(c) to give the designated officer essential information

on which to base his consideration.

(d) to provide occasion for dispassionate second

thought.

11. In examining Section 6 I referred to R.R.O., 1960,

Regulation 486 where Section 4 reads as follows:

"4.(1) Where a report or complaint of an offence against

the code has been made against a constable or

other police officer other than the chief

constable, the chief constable shall forthwith

inform the constable or other police officer of

the exact charge against him.

(2) The charge shall disclose an offence against the

code and give such details of time and place as

to leave the accused under no misapprehension as

to the offence with which he is charged.

(3) The charge shall be written upon a charge sheet

which may be in Form 1 and shall be served as

soon as is practicable upon the accused together

with the report or complaint on which it is

founded and all reports thereon, whether

confidential or otherwise, of which the substance

is given in evidence at the hearing."

12. This predecessor regulation refers to "report or complaint" and continues by providing that not only shall the charge be served but also the report or complaint on which it is founded.

13. Regulation 486 did not include the detailed instructions for the charge as contained in Section 5 of the present regulation and could imply that the detailed instructions of Section 5 are in lieu of the former complaint requirements.

14. The Metropolitan Toronto Police Force Complaints Project Act, Chapt. 43, 1981 Statutes of Ontario, although establishing a procedure for complaints rather than disciplinary charges sets out in Section 6 how complaints are to be made.

15. Section 7 requires the police officer concerned be informed of the substance of the complaint unless to do so might adversely affect the investigation.

16. Section 9, subsections (4) and (5) require that the police officer concerned be provided with a copy of the final investigation report which is to contain a summary of the complaint.

17. The complaint and the information contained in it continues to be an important element of the procedure.

18. I was referred to the decision of Anderson J. in Kupeyan v Royal College of Dental Surgeons of Ontario 37 O.R.(2d) 1982, page 737.

19. The Health Disciplines Act, R.S.