ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF the Police Act, R.S.O., 198U, c. 381,
and Amendments thereto and Regulations thereunder;
- and –
IN THE MATTER OF an Appeal to the Ontario Police
Commission by:
Constable Robert Sam Diamond #1676
Appellant
-and
Ontario Provincial Police
Respondent
DECISION
Panel: John P. MacBeth, Ksq., Q.C., Vice Chairman
Jennifer Lynch, Member
Hearing Date: Friday July 19th, 1985
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, Ksq., Q.C., Vice Chairman
Jennifer Lynch, Member
Appearances:
W. Michael Temple, fcsq., Q.C. Counsel for the Appellant
Constable Robert Sam Diamond
Appellant
Dennis W. Brown, Esq., Q.C. Counsel for the Respondent Ontario Provincial Police
Inspector A. M. Wilkinson Ontario Provincial Police
Date: Friday, July 19th, 1985
F.J. Lynch, Member
This is an appeal by Constable Robert Sam Diamond, a member of the Ontario Provincial Police, from his conviction on a major charge ot Deceit as defined in s.l(d)(ii) ot the Code ot Offences, Police Act Regulations, R.R.O. 1980 c.'/yi, Sched., toilowing which conviction a penalty of reprimand was imposed
The matter was heard by the Ontario Provincial Police Designate, Staft Superintendent H. T. Garry, whose decision was rendered on October 24, 1984.
The Charge Sheet upon which the appellant was tried alleged that he willfully made a false statement pertaining to official duties. The allegation ot such deceit was particularized as follows:
"On April 4th, 1984 you were interviewed by
Staff Sergeant Lionel J. JONES, Ontario
Provincial Police, Barrie Detachment,
concerning a complaint against you by Mary
Ellen DAVIS in relation to a Provincial
Offences ticket issued by you for a speeding
violation on March 26th, 1984. You stated to
Staff Sergeant JONES that you clocked the speed
of the Davis vehicle two or three times by
passing it on Highway 11 between the Fourth and
Seventh Concessions of Oro Township, then you
stopped and clocked the speed with a hand-held
radar set as the vehicle passed you, when in
fact you knew this to be false."
The facts which give rise to the allegations ot deceit are as follows:-
On the evening of March 26th, 1984, Constable Diamond was on selective traffic enforcement duty on Hwy. 1 1 , north of Toronto near Barrie. He pulled over Ms. Mary Ellen Davis and gave her a ticket for exceeding the speed limit. He also requested that Ms. Davis sit in his vehicle, which she did for up to two hours, during which time he engaged her in an inappropriate conversation which became the subject ot a complaint by Ms. Davis. Ms. Davis' complaint resulted in a subsequent charge and conviction ot Constable Diamond for discreditable conduct, contrary to s. 1(a)(i) ot the Code of Offences, Reg. 791 of the Police Act, for which he was imposed a fine ot loss of three days' pay.
Ms. Davis1 complaint resulted in Staff Sergeant Jones conducting a preliminary investigation during which time he became concerned with the fact that Constable Diamond had used a hand held radar which is not designed for the moving mode.
Staff Sergeant Jones then interviewed Constable Diamond on April 4th, 1984. It is the evidence ot Staff Sergeant Jones that he asked Constable Diamond how he obtained three radar clocks in the moving mode with the hand held radar set and that Constable Diamond replied that he pulled past Ms. Davis, got on the shoulder of the road and clocked her as she went by.
Staff Sergeant Jones subsequently measured the distance that Constable Diamond had allegedly said he travelled, and determined that the distance was 2.4 miles. He attempted to duplicate the process and found it impossible even in a controlled situation, under ideal conditions.
On a second occasion, on May 30th, 1984, when Staff Sergeant Jones served Constable Diamond with the Charge Sheet, Staff Sergeant Jones stated that Constable Diamond then denied having told Staff Sergeant Jones on April 4th, 1984 that he had clocked the speed of the Davis vehicle in the manners described on the Charge Sheet. Rather, Jones1 evidence is that Constable Diamond said he followed behind, stopped the cruiser, got out and clocked the car as it went away.
Constable Diamond confirmed this in his evidence, stating that after the Davis vehicle passed him, he braked on the highway and clocked the Davis vehicle with the radar, with two readings. He then accelerated quickly, pulled in behind the car and clocked it from behind with the speedometer.
Constable Diamond recalls stating in the interview with Staff Sergeant Jones on April 4th that according to his notes he got three clocks on Ms. Davis, but that he had no recollection of how he obtained the clocks. By May 30th, 1984 when he was served with the Charge Sheet, he had remembered the incident and by then recalled how he had obtained the three readings, the first two by radar when stationary and behind the Davis vehicle, and the third by speedometer.
Staff Sergeant Jones had withdrawn the traffic violation charge against Ms. Uavis.
Ms. Davis in her evidence denies that she was speeding at all.
The grounds of appeal against conviction advanced by the appellant may be paraphrased as follows:
The evidence established that the Appellant did not
intend to commit the alleged offence, and
- It the evidence established that the appellant did
not intend to commit the alleged offence, the Staff
Superintendent erred in convicting the Appellant.
- The Appellant submitted that the Hearing Otficer correctly instructed himself as to the test, in his reasons, at page 240:
"I believe the crucial issue in the charge of
deceit is whether or not the statement given by
the Sergeant where (sic) willfully or
intentionally, deceitful".
The Appellant further submitted that the Hearing Otficer found that the Appellant did not intend to commit the offence - and that he therefore erred in not applying his own findings.
The prosecution argued that the Hearing Officer, while coming to the right conclusion, misdirected himself by failing to make findings of fact and credibility. The prosecution further submitted that the Hearing Officer had knowledge of some conflict in the evidence, and made findings of intention without relating it to the evidence, and he failed to respond to clear conflicts in the evidence.
The prosecution further argued that we, at our level, are unable to determine whether these conflicts in the evidence were addressed by the Hearing Officer.
The main question of credibility which arises, obviously, is between the evidence of Staff Sergeant Jones and Constable Diamond, as to whether Constable Diamond in fact told Staff Sergeant Jones on April 4, 19b4 that he had passed the Davis vehicle and clocked it as it went by, as alleged in the Charge Sheet.
As well, the prosecution accurately described the difficulty this Commission has in understanding how the hearing officer moved from his finding of a state of mind, being lack of intention, to a finding of guilt.
In order to best determine the issues before us, we are obliged to determine the case upon the record, except in special circumstances. We do not have the opportunity to observe the witnesses. We must rely upon the Hearing Officers to make these finding of credibility and of fact and we seek their assistance in clarifying for us in their reasons that they have done so.
We acknowledge that the present hearing system places burdens upon those untrained and inexperienced in the conduct of quasi-judicial matters, who must overnight become imbued with knowledge of procedure, evidence and judgment writing skills.
In the case at hand, we are turther troubled by the finding which was made by Staff Superintendent Garry that the Appellant did not intend to make a false statement regarding the accuracy of the radar readings. With the greatest of respect to Staff Superintendent Garry, the accuracy of the radar readings was not in issue, rather in issue was whether Constable Diamond made a statement regarding the method of talcing radar readings, and if he did make the statement, whether or not his making the statement constituted the offence of willfully making a false statement pertaining to official duties.
At first blush it was not at all evident to us that Staff Superintendent Garry had addressed the very most important issue of credibility. However, we are given one indication that he did. We conclude from his finding at page 242 that Constable Diamond "felt he did not give the Sergeant a false statement, that he was convinced, in his own mind that these readings on the radar were obtained accurately" (emphasis is ours) that Staff Superintendent Garry, although he did not specify in his Reasons, had addressed his mind to the issue of credibility and had accepted Constable Diamond's evidence; namely, that Constable Diamond had clocked the Davis vehicle twice by radar as it was retreating and once by the speedometer, and that he had not made the statement to Staff Sergeant Jones that the Davis vehicle passed him as alleged in the Charge Sheet. Staff Superintendent Garry's concern then lay with the accuracy of this method, which as previously stated, was not relevant, and unfortunately threw off the Appellant, prosecution, and this Commission alike in addressing the matter of this Appellant's conviction and grounds for appeal.
We imply that the Hearing Officer found that the Appellant did not make the statement alleged in the Statement of Particulars in the Charge Sheet.
While it is not necessary for us to rule on the necessity of intention as an element of the offence, the Appellant clearly therefore could not have intended to commit the offence.
The Hearing Officer therefore erred in convicting the Appellant and the conviction is therefore quashed.
DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 20th day of September, A.D. 1985.
John P. MacBeth, Q.C.
Vice Chairman
F. Jennifer Lynch,
Member