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 RENAUD CITY OF WINDSOR POLICE FORCE

DECISION

Panel: W. T. McGrenere, Esq., Q.C. John P. MacBeth, Esq., Q.C.

Hearing Date: Friday, March 9th, 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: W. T. McGrenere, Esq., Q.C. John P. MacBeth, Esq., Q.C.

Appearances: Leon Paroian, Esq., Counsel for the Appellant Sergeant Ronald Thompson The Appellant

Reginald E. Burnell, Esq., Q.C., Counsel for the City of Windsor Police Force, Respondent Inspector Calvin Allison

Held: Friday, March 9th, 1984

1. This is an appeal by Police Constable Gregory Renaud of the City of Windsor Police Force from conviction and penalty imposed on the charge of Discreditable Conduct, contrary to Sec. 1 (a)(i) of the Schedule of Offences contained in R.R.O. 791.

2. The original hearing was held before Staff Inspector Alex Somerville on the llth and 22nd August, 1983. On the 22nd he was found guilty of the charge and a penalty of 5 days' pay imposed. On the 26th August, 1983 Acting Chief John Hughes confirmed the conviction and mitigated the penalty to two and one half days' pay and a reprimand.

3. Appeal was made to the Board of Commissioners of Police. This appeal was heard on the 19th of October, 1983. The appeal was dismissed and the conviction upheld.

4. The appeal to this Commission from both conviction and penalty, amongst other grounds, was based on allegations that the Charge Sheet was improperly drawn, did not comply with Sec. 5 (8) of Regulation 791, and that the facts as found by the trial officer did not justify the decision on the basis of the charge as stated, and that the charge was void by reason of duplicity.

5. Since the wording of the charge is a material issue it is quoted as follows:

THE POLICE ACT CHARGE SHEET WINDSOR POLICE FORCE (Name of Municipality) TO_____Constable Gregory RENAUD__________________________ (Name of person charged) YOU STAND CHARGED with discreditable conduct, contrary to Section 1 (a) (i), of the Schedule of Offences contained in Regulations made under the Police Act, R.S.O. 1980, Chapter 381, as amended. That you did on the 20th day of April, 1983 and previously act in a manner likely to bring discredit upon the reputation of the Police Force. and did thereby commit a_______Major_______________offence (s) minor - major This is therefore to command you to appear before Staff Inspector A. Somerville on _T_h_u_r_s_d_a_y t,h e 1_2_t_h_ _______ d, ay o,f _M_a_y 1,9n _83 _____ at __2:0_0 p.m. ________i.n th, e _________a_f_t_e_r__noon Windsor Police Headquarters, Station #1, 2nd Floor, Library 3 L to answer the said charge (s) Dated. th, i.s ___2_9t_h ______da, y ofc ___Avp_r_i_l __________, .1n98_3 signature Authorized signing officer

An attached second page reads as follows:

STATEMENT OF FACTS

1. On Wednesday, April 20th, 1983 at about 2:30 p.m., Mr. Nino Prepolec was leaving his residence at 1066 Hickory when he was acosted and beaten by two men whom he identified as Gregory and Michael Renaud. He states the assault was a result of a debt owed by him to thesister of the accused. The complainant suffered a bloody nose and cut requiring two stitches, swelling to the nose, slight reddening to the area about the nose and scratches to his neck.

2. It is further alleged that on March 19th, 1983 approximately 9:00 p.m. Gregory Renaud attended 1066 Hickory in uniform and spoke to Paul and Brenda Silva looking for Nino Prepolec and the money owed his sister and at that time threatened to assault Nino if the money was not paid.

3. The pertinent facts giving rise to the charge are set out in two paragraphs contained in the decision of the Board of Commissioners of Police from which we quote:-

4. "The transcript discloses that sometime in January, Mr. Nino Prepolec borrowed the sum of $550.00 from the sister of Gregory Renaud. At that time, this young girl was approximately 18 and still in attendance at high school. Mr. Prepolec failed to repay the loan. Efforts were made by the Renaud family to contact Mr. Prepolec and to ensure the repayment of the monies outstanding. This was done not only by Miss Renaud but in more particularly by her father and also by one brother Michael. Mr. Prepolec continued to evade repayment and it caused great concern obviously to the Renaud family.

5. Mr. Renaud Sr. commenced an action in the Small Claims Court for the purpose of collecting the debt in question. He was advised by the Baliff of that court that the Court was unable to affect service upon Mr. Prepolec. At or about that time Mr. Renaud Sr. actually was required to move from the City on relocation of his employment and the responsibility fell on the shoulders of his sons Michael and also the accused Gregory. With reference to the second part of the particulars it is admitted by Constable Renaud that he did at one point in March attend at the home of one Paul and Brenda Silva. These people are associated with Nino Prepolec and it became clear from the evidence that he was in fact in residence at their home on March 20th.

6. Constable Renaud attended at this home in uniform and driving a police cruiser. He has testified that it was his intention to determine either the place of employment or the address of Mr. Prepolec so that service could be affected of the documentation issued from the Small Claims Court. There is no question in the mind of the Commission and the Trial Officer that Mr. Renaud was admitted to the home. There is no evidence to substantiate the allegation in the particulars that while in the home he threatened to assault Nino Prepolec if the money wasnot paid. However, it is the view of this Commissionas was the view of the Trial Officer that the attendance by Gregory Renaud at the Silva home in uniform and driving a police cruiser for the sole and only purpose of advancing a private matter was an action that did bring discredit on the Police Department."

7. Section 5 of R.R.O. 791 sets out the form of a Police Act charge.

8. A number of case references were cited by counsel ranging from the liberal interpretation given by the Divisional Court in Re MacDermaid 9 O.R. (2d) 1976 page 170 to the rather strict interpretation given by the Supreme Court of Canada in Archer vs. The QueenVol. 110 (C.C.C.) page 321. The cases covered various points of law and distinctions were made between criminal and administrative law cases. The rationale throughout centres on fairness to the person charged. Has sufficient information been given to enable theperson to identify the offence with which he has been charged together with sufficient particulars to prepare the relative defence? In the case before us

9. In the case before us the charge is "Discreditable Conduct" but the wording of the Statement of Facts would indicate that this charge of "Discreditable Conduct" was based on assault and the threat of assault. "Assault" was the thrust of the charge. When neither assault nor threat of assault was proved reliance was placed on the words in the "Statement of Facts" "in uniform" to conclude that the "Discreditable Conduct" consisted of attending at a private home in uniform and driving a police cruiser to further a private matter.

10. During the incidents involved there were many acts committed or omitted by Constable Renaud that might give rise to a charge of "Discreditable Conduct" such as the interference with the legitimate business of the taxi driver; the leaving of the victim of the assault at a time when Constable Renaud's first concern should have been for that victim. Under the Charge Sheet as drawn Constable Renaud would not have had a reasonable opportunity to answer such a charge should either of the above courses of conduct been extracted from the evidenc to find him guilty of "Discreditable Conduct". Similarly we believe from the wording of the Charge and the "Statement of Facts" it was unreasonable and indeed unfair to expect Constable Renaud to prepare a defence to the evidence of conduct on which the charge was eventually based. The connection is too remote and almost incidential. To our minds the charge has not been sufficiently identified. It seems to have been a case of produce the evidence and then determine what facts exist to support the charge.

11. This interpretation is supported by the conduct of the Board, where they appear to have dealt with the statement offacts as tantamount to two separate charges.

12. For these reasons we therefore allow the appeal and quash the conviction and punishment imposed.

DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 28th day of March, A.D. 1984.

W. T. McGrenere, Q.C., Member.

John P. MacBeth, Q.C., Vice Chairman