ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF the Police Act, R.S.O., 1980, c. 381, and Amendments thereto and Regulations thereunder;
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IN THE MATTER OF an Appeal to the Ontario Police Commission by:
Constable Frank Leslie Abbott #5083
-and-
Constable Malcolm Roy Barber #6216
Appellant
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Ontario Provincial Police
Respondent
DECISION
Panel: John P. MacBeth, Esq., Q.C., Vice Chairman W. C. McKay, Esq., Member
Hearing Date: Tuesday, October 29th, 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
John P. MacBeth, Vice Chairman.
1. This is an appeal by Constables Frank Leslie Abbott and Malcolm Roy Barber from their convictions on a minor charge of Neglect of Duty as defined in Section 1 (c)(i) of the Schedule Code of Offences, contained in Regulation 791, R.R.O. 1980.
2. The charge against both officers reads as follows:-
"In that you did without lawful excuse, neglect or omit promptly and diligently, to perform a duty as a member of the Ontario Provincial Police Force, contrary to Section 1 (c)(i) of the Code of Offences contained in Regulation 791 made under the Police Act."
3. The Statement of Particulars following the Charge against Constable Abbott reads as follows:-
"On the afternoon of November 3rd, 1984, you accompanied Provincial Constable Malcolm R. BARBER to a location on Airport Road near Armstrong, Ontario where Jarvis ESQUEGA and Daniel NESHINAPAISE were found in an intoxicated condition. You assisted Constable BARBER during the arrest and escort of the persons named above, who were taken into custody and transported to Armstrong Detachment, where they were confined in the Force lockup.
You failed to remove certain articles from the prisoners which may have been used to cause injury to themselves or to other persons."
4. The Statement of Particulars following the Charge against Constable Barber reads as follows:-
"On the afternoon of November 3rd, 1984, you were on duty, and accompanied by Provincial Constable Frank L. ABBOTT you arrived at a location on Airport Road near Armstrong, Ontario where you found Jarvis ESQUEGA and Daniel NESHINAPAISE in an intoxicated condition.
Assisted by Constable ABBOTT, you arrested the persons named above who were then transported to Armstrong Detachment where they were confined in the Force lockup.
You failed to remove certain articles from the prisoners which may have been used to cause injury to themselves or to other persons."
5. Both cases were heard together and likewise the appeals were heard together.
6. Excerpts from Part 10 of Ontario Provincial Police Orders were entered as Exhibit Number Six at the original hearing and are quoted as follows:-
1251.2 An article that may facilitate escape, self-inflicted injury or suicide, the defacing of property or the setting of fire shall not be left with a prisoner during confinement.
1251.15 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.
7. The evidence was to the effect that Constable Barber was on duty when he received information that there were tw people "passed out" in the middle of Airport Road. Constable Abbott who was then not on duty, but who was to go on duty later in the day, volunteered to accompany Constable Barber.
8. Subsequently they took into custody Jarvis Esquega and Daniel Neshinapaise both of whom were so intoxicated that they had become unconscious. After placing them in the detachment cell and prior to conducting a physical search they left them under the care of Barry Bert Foss,a civilian hired by the Force to guard prisoners.
9. Intending to return within twenty minutes Constable Barber left with Constable Abbott to drive the latter home. Constable Abbott was due shortly on duty and had to change into uniform.
10. While Constables Abbott and Barber were absent from the detachment Daniel Neshinapaise died in the detachment cell. There was no suggestion that any member of the Force was in any way responsible for his death.
11. Exhibit #7 is a statement of D.A. MacDougall, Provincial Constable #2618, Technical Identification Services Unit, Thunder Bay D.H.Q., concerning the death of Daniel Neshinapaise at Armstrong, Ontario, 03 November, 1984.
12. The statement lists the clothing and articles removed from the deceased's body.Amongst the list are the following items of concern to us.
One pair brown winter boots (with laces) One pair green work pants (black belt) One pair white long underwear One red-yellow plaid shirt Three books paper matches One package Vogue cigarette paper Two Labatts Blue bottle caps One piece of white cord 3/16" thick by 37" long One part container Copenhagen snuff 20 snare wires - each approximately two feet long One razor
13. It was argued on behalf of the Appellants that the Staff Superintendent erred in failing to hold that Police Orders in this particular case were a guide only and that the Appellants exercised their individual discretion reasonably. It was submitted that the Appellant Abbott was not on duty at any time during the time that the prisoners were arrested and placed in the cell and he was entitled to assume that Barber and the guard were in charge. It was further submitted that Barber acted reasonably in temporarily postponing his search of the prisoners until after he had driven Abbott to his home and returned.
14. It was further contended that both officers knew that Jarvis Esquega and Daniel Neshinapaise were so intoxicated that they were incapable of deliberate action and unable to comprehend. Therefore, it was not unreasonable to leave them under the supervision of the civilian Foss for a period of twenty minutes.
15. We are unable to accept that the officers acted reasonably under the circumstances. Many unexpected events can happen even in the period of twenty minutes as witnessed by the death of Daniel Neshinapaise.
16. Constable Barber might have been required to respond to another call. We can conjecture many circumstances that could have delayed his return. Any other officer on approaching the cell should be able to rely on force procedure having been followed.
17. Failure to remove articles that might have facilitated escape, self-inflicted injury or suicide, the defacing of property or the setting of fire was a clear breach ofForce Procedures.
18. We have some sympathy with the position of Constable Abbott who after having volunteered to assist finds himself charged for not completing the job. We commend the spirit of co-operation and camaraderie that exists in many of the small detachments and do not wish to do anything to discourage it.
19. We do, however, believe that Constable Abbott, being the senior in service with the Force should not have departed with Constable Barber until the prescribed procedures had been completed.
20. The offences have been charged as minor offences and the penalties imposed of forfeiture of one weekly rest day, have been commensurate.
21. Counsel for the Respondent proposed that the penalties imposed had been too light in view of the circumstances and should therefore be increased.
22. We agree that the Police Act gives this tribunal power to increase penalties and from time to time there may be matters before us where we wish to exercise such power. The circumstances of this case did not, however, convince us that the penalties were out of line.
23. No written Notice of Cross Appeal as to penalty had been served although it was acknowledged that ample verbal notice had been given. We were requested to comment as to lack of written notice.
24. This request raises the question as to what right the Respondent has to ask for an increased penalty when it was an officer of the Respondent that determined the penalty in the first place.
25. No argument was made nor were precedents quoted concerning this matter and we are therefore not prepared to answer the questions of Cross Appeal in this decision.
26. The appeals in these present matters before us are both dismissed with the convictions and the penalties confirmed.
DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 15th day of November, A.D. 1985.
John P. MacBeth, Q.C. Vice Chairman
W.C. Mckay, Member