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 Gary George Cooper, #3102
Appellant
-and-
Ontario Provincial Police
Respondent
DECISION
Panel: Shaun MacGrath, Esq., Chairman
John P. MacBeth, Esq., Q.C., Vice Chairman
Hearing Date: Thursday, July 18, 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:
Shaun MacGrath, Esq., Chairman
John P. MacBeth, Esq., Q.C., Vice Chairman
Appearances:
W. Michael Temple, Esq., Q.C.
Counsel for the Appellant
Constable Gary G. Cooper
Appellant
J. Brian Johnston, Esq., Q.C. Counsel for the Respondent Ontario Provincial Police
Inspector W. B. German Ontario Provincial Police
Date: Thursday, July 18, 1985.
This is an appeal by Police Constable Gary George Cooper of the Ontario Provincial Police from his conviction on the charge of Neglect of Duty.
The charge reads as follows:-
"That you did by carelessness or neglect permit
a prisoner to escape, contrary to Section
l(c)(iv) of the Code of Offences contained in
Regulation 791 made under the Police Act.
- Statement of Particulars;
On the afternoon of September lath, 19b4, you
had custody of Darryl Todd PRICE, also known as
Robert James ELLIOT, a person lawfully arrested
while found committing a criminal offence. You
failed to take the necessary precautions to
prevent the prisoner from escaping custody
And did thereby commit a Minor offence."
A hearing was held before Staff Superintendent H. T Garry on the 31st January, 1985 who convicted Constable Cooper of the offence and imposed the penalty of an admonishment.
In response to a call to investigate a possible break and entry Constable Cooper accompanied by Constable Robbin M. Oberg entered a cabin located on a property approximately seventeen miles east of the City of Thunder Bay. They appear to have taken the four occupants by surprise and ably and successfully took them into custody. There were three men and one young woman. Both Constables took part in placing handcuffs on two of the men.
Subsequently Constable L. W. Levesque, having heard the dispatch, arrived on the scene and he describes at Page 11 of the evidence what he found as follows:-
"A. I proceeded into the house. Constable Cooper and
Oberg were there. There was two male subjects
laying on the floor with - being handcuffed and
there was another - a young girl and another young
man. They were just standing to the side.
Q. And do you know whether or not those four people
were under arrest at that time?
A. I assumed that the two in handcuffs would be under
arrest and - and I also assumed that the other two
would be under arrest....
Q. All right. Is it fair to say then that if they were
- if they were under arrest, that they had been
placed under arrest prior to your arrival?
A.Yes sir."
- He continues at Page 15 of the evidence to describe his departure as follows:-
"A. Well we went in and as I say Constable Cooper had
located a shopping bag, a plastic shopping bag with
some plant like material that appeared to be
marijuana plants to me and continued searching
around. So I - 1 asked if he needed my assistance
any further at the time and 1 - 1 had the
intelligence unit with me and I didn't want it to be
seen by these people. So I asked if everything was
under control, if he wanted me to stay and he
advised he should be able to handle it between him
and Constable Oberg. So I said, fine, I'll leave
the scene then and go back to Thunder Bay.
Insp. German: Yes.
A. Which I did. I went out the door and I walked past
the subjects and Constable Oberg.
Q. And how many subjects were there when you walked
past?
A.I believe all of them there were.
Q. All four?
A. Yes.
Q. And did you - did you then drive back to Thunder bay
detachment?
A.Yes sir, I did."
Constable Uberg was charged with the same otfence as Constable Cooper. Both charges were heard separately. Both constables were found guilty and both were admonished.
There is no question from the evidence that at one point all four persons taken into custody were securely under control.
Discussion was held as to how these four persons were to be transported to Thunder Bay and they were moved out the cabin towards the roadway and the police cars.
Constable Oberg was the officer closest to the tour when one of the two handcuffed, namely Darryl Price, escaped into the bush and was not taken back into custody until the 1st January, 1985. The evidence is not clear where each of the three officers was at the time of the escape. It would appear that Constable Cooper hadreturned to the cabin, Constable Levesque had passed the prisoners and was departing or had departed from the property and that Constable Oberg was standing closest to the prisoners.
Entered in evidence as Exhibit No. Five was a photocopy of Part 10, Police Orders, headed "Prisoners, Escapees, Elopees".
Item 1251.15 reads as tolllows:-
"A prisoner in the custody of a member is that
member's responsibility, and if several members
are engaged in guarding or escorting a
prisoner, then all are collectively and each
individually responsible."
Constable Levesque was not charged with any offence arising out of Darryl Price's escape and therefore we are not concerned with him.
Counsel did not attempt to suggest that there was any different degree of responsibility for the escape between Cooper and Oberg. Rather he contended that it was incumbent on the prosecution to establish neglect or carelessness and the Hearing Officer had failed to identify such neglect or carelessness.
At Page 119 when stating his decision the Hearing Officer says, "The tribunal is unable to find that there isn't a certain degree of carelessness, a certain degree of neglect in this incident." By so saying it is true that he does not identify the neglect or carelessness, but there is no doubt that he believes there was such. There may have been a greater degree of carelessness onone officer than the other, but we were not asked to so differentiate and the Regulation 1251.1b places on the officers both collective and individual responsibility.
It appears to us that when you have four prisoners who were unquestionably secured and subsequently one escapes it is reasonable to assume that there was carelessness or neglect. A pritna facie case had been established by the prosecution when it showed that all four had been secured and that one subsequently escaped. It was reasonable tor the Hearing Officer to consider that the onus had then shifted to the defence to show that the escape had been made without neglect or carelessness on the part of the officers collectively. That was not shown.
We therefore dismiss the appeal and confirm the conviction and penalty.
DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 8th day of August A.D. 1985.
Saun Macgrath,
Chairman
John P. MacBeth, Q.C.
Vice Chairman