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 John Vernon Brodie.
DECISION
Panel: John P. MacBeth, Q.C., Vice-Chairman W. T. McGrenere, Q.C., Member
Hearing Date: March 27, 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
W. T. McGrenere, Q.C., Member
Appearances:
Paul Nixon, Counsel for the Appellant, and the Appellant appearing in person
Inspector Fred Pletsch for the Respondent
Hearing: March 27, 1984
This is an appeal by John Vernon Brodie from a conviction by Superintendent N. Somerset of the Chatham Police Department on the 16th day of June, 1983, on a charge of insubordination contrary to s.l(b)-(ii) of the Schedule Code of Offences of Ontario, Regulation 791/80. The conviction was upheld at a hearing of the Board oF Commissioners of Police on November 8, 1983.
Constable Brodie was charged with insubordination in that he did, without lawful excuse, neglect to carry out a lawful order, to wit: s.8 of the Chatham Police Force Regulations: "...A member shall exercise the utmost care in handling firearms..."
The facts giving rise to this charge arose out of an incident which occurred on March 4, 1983. At approximately 2200 hours, Constable Brodie discharged a Smith & Wesson revolver in a toilet stall in the men's washroom of the Chatham Police Station at 24 Third Street in Chatham. The bullet, according to the photographs presente in evidence, emerged from the stall and crossed an open area of approximately ten feet and struck a wall. The physical evidence would tend to indicate that the bullet emerged from the stall approximately 21J" from floor level and dropped approximately 2" over a distance of ten feet. It was suggested that the trajectory would indicate that the gun was almost level when it was shot and it was further suggested that it was at approximately knee level when one is sitting.
There were powder burns on Constable Brodie's left hand and on the tips of his fingers.
It was theorized by the prosecution that Constable Brodie had accidentally discharged the firearm with his right hand while resting the gun partially on his left hand. The Constable was in the habit of leaving two chambers in the cylinder empty. Ke had, however, changed from a Colt to a Smith & Wesson and the Colt cylinder operated in the opposite direction.
It was contended by counsel for the Appellant that he had been in the habit of placing his gun and walkie-talkie on the back of the toilet or water basin and it was while preparing to put the gun back in the holster that it slipped and caused him to reach for it with his left hand as well, and the gun then discharged.
It was suggested by an expert called on behalf of the prosecution that the particular gun required approximately 25 Ibs. of pressure directly on the trigger to make it discharge. While the transcript leaves something to be desired in this area, it is suggested that it was possible for the gun to discharge in the manner described by Constable Brodie.
It was submitted that the conduct of Constable Brodie did not in any way constitute insubordination. A dictionary definition was proffered which suggested that the officer's conduct must be tantamount to a wilful act. While we do not quarrel with the dictionary definition of insubordination, the provisions of the Code of Offences insofar as insubordination is concerned seem to be somewhat broader in that they incorporate, at least in part and by reference, the local Regulations.
It was further submitted that in any event, the incident giving rise to the charge was a simple accident and ought not to be the basis for a major charge under the Code of Offences. It was suggested in this regard that the officer's handicapped right hand contributed to the event and was one further abnormal factor to be considered.
It was never suggested that the incident was anything but an accident. The Regulation requires a member to exercise "utmost care in handling firearms." The fact that the person may have a known limitation or physical handicap must make that person even more cautious in handling a gun. We are of the view that there was sufficient evidence, both direct and indirect, upon which the presiding officer could make his finding.
The appeal is therefore dismissed.
DATED at the City of Toronto this 30th day of March 1984.
John P. MacBeth, Q.C., Vice-Chairman
W. T. McGrenere, Q.C., Member