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 William J. Kloepfer
Appellant
-and-
Town of Southampton Police Force
Respondent
DECISION
Panel: John P. MacBeth, Esq., Q.C., Vice Chairman
F. Jennifer Lynch, Member
Winfield C. McKay, Esq., Member
Hearing Date: Tuesday, March 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
This is an appeal by Police Constable William Joseph Kloepfer, Town ot Southampton Police Force from his conviction and penalty imposed on a major charge of discreditable conduct under Section l(a) (vii) ot the Schedule Code ot Offences of R.R.O. 1980, 791.
The Charge and Statement ot Particulars read as follows:-
"You stand charge with Discreditable Conduct that you
were found guilty of an Indictable Offence or an oftence
punishable upon Summary Conviction under the Criminal
Code of Canada, contrary to Section 1 (a)(vii) of the
Schedule Code of Offences ot Ontario, Regulation 791/80
made in pursuance of the Police Act of Ontario, and did
thereby commit a Major offence.
STATEMENT OF PARTICULARS:
- On Thursday, November 17th, 1983 at the Town of Walkerton, County of Bruce, in the County Court Judges' Criminal Court, you together with John Prentice, bot being Peace Officers were convicted ot the Indictable Offence of;
"between the 22nd day of August and the 20th day of
October, 1981 inclusively at the Saugeen Indian Reserve and elsewhere in the said County, together both being Peace Officers did corruptly attempt to obtain for the said John Prentice a valuable consideration, to wit: the position of Officer in Charge of the Saugeen Police with intent to interfere with the administration of justice, by agreeing and promising to withdraw criminal charges against Chester Lloyd Ritchie if he in his position as Councillor of the Saugeen Indian Reserve Band Council made a motion to the said Council to have the said John Prentice made the Otticer in Charge of the Saugeen Police, contrary to Section 1U9 (a) of the Criminal Code of Canada." And that upon such conviction on November 17th, 1983, His Honour Judge J. Ian mcKay imposed a penalty of a fine of Three Hundred Dollars or thirty days in default."
- The Notice of Appeal set out the following grounds:-
"1. The Board erred in refusing the Constable a
reasonable adjournment as requested on January 26,
The Board erred in proceeding with the charge
against the Constable in that such a proceeding was
premature, or in the alternative, there was no
evidence adduced under Section l(a)(vii) capable of
sustaining a conviction.
On or about November 17, 1983, Constable Kloepter
was convicted under Section 109(a) of the Criminal
Code of Canada and fined $300.UU or 30 days in
default.
within the time limitation as prescribed by the
Rules of Practice, Constable Kloepter tiled an
Appeal as to conviction in the Ontario Court of
Appeal.
The Appellant therefore states that on January 26,
1984, an Appeal was pending before the Ontario
Court of Appeal as to his conviction under Section
loy(a) of the Criminal Code of Canada and theretore
the Constable was not guilty of an indicatable
offence or an ottence punishable upon summary
conviction under the Criminal Code of Canada.
The Appellant theretore states that there was no
evidence upon which a conviction could be
registered under Section l(a)(vii) of Regulation
791/81.
- The Board displayed an obvious bias towards
Constable Kioepter in proceeding under Section
l(a)(vii) knowing an Appeal was pending.
The Appellant states that the only reason for
proceeding on the date indicated was for the
purpose of obtaining an early dismissal of the
Constable.
The Board theretore had predetermined the
conviction and sentence prior to hearing any
submissions by the Appellant.
- There existed an apparent bias on the part of
Commissioner A. Knechtel, a member of the Board.
The Board erred in not permitting the Appellant to
place before the Board the allegations of prejudice
and bias.
The Board erred in continuing with the hearing and
not declaring a mistrial upon the allegations of
bias being advanced by the Appellant.
B. Sentence
- The Board had predetermined the sentence prior to
submissions being made by the Appellant.
- The sentence imposed was excessive and
unreasonable under the circumstances given the
sentence imposed by the trial Judge after
conviction under the Criminal Code of Canada."
The Police Act charge was heard by The Board of Commissioners of Police of the Town of Southampton on the 26th January, 1984. The hearing adjourned to consider penalty to the 2nd February, 1984 and again to the 9th February, 1984.
Entered at the hearing as exhibit number four, (page 17 of the transcript), was a Certificate of Conviction certified by John Ellis, Clerk of the County Court of Bruce certifying that William Kloepfer was convicted of an offence under Section 109(a) of the Criminal Code of Canada on the 17th November, 1983 with a penalty of $300 or 30 days.
As of the 26th January, 1984 the Criminal Conviction was under appeal to the Court of Appeal of Ontario.
The appeal was heard on the 10th and llth December, 1984. The record was endorsed as follows: "Appeal as to conviction dismissed. In our opinion the trial Judge found that the Conduct of the Appellants was corrupt and there was ample evidence to make that finding".
At the commencement of our hearing two preliminary motions were made by counsel for the appellant.
One was for leave to introduce additional evidence the purpose of which would be to show bias by the Board of Commissioners of Police.
The other motion was to the effect that the Southampton Board had proceeded without compliance with the provisions of the Police Act and therefore its proceedings were a nullity.
In considering the first motion we noted the following:- The notice of appeal made no reference to application for leave to introduce new evidence. That on the 9th February, 1984 at the time when penalty was being considered, counsel for the appellant called no witness when he might have taken that opportunity to adduce evidence of the alleged bias to which he later referred.
We were not satisfied that the evidence would be conclusive nor that it was not previously available. We therefore denied the first motion.
As to the second motion, since it went to the very root of the grounds of appeal, we reserved decision and that decision is now included within the following reasons.
The essence of the appeal was that the guilt required by Section l(a)(vii) of the Schedule Code of Offences R.R.O. 791 is not guilt until ail times for appeal or avenues of appeal have been exhausted.
An analogy was drawn to Section 26(3) of R.K.O. 791 to suggest that where there is a conviction for which no term of imprisonment is imposed where an appeal is pending then there may be no suspension without pay. Counsel for the appellant argued that this was the reasoning which applied to this case.
Reference was made to Crease et al vs board of Commissioners of Police of the Municipality ot Metropolitan Toronto et ai 11 O.R. (2d) 1976, 459.
Although helpful, the Crease case is not on point because here further procedures have been taken, namely the laying of a charge under the Code of Offences under the Police Act and the penalty imposed which that code provides for, namely dismissal.
The Crease case and the said Sec. 26(3) concern suspensions pending criminal appeals but without Police Act charges and conviction.
We are here concerned with carrying out the penalty imposed after a turther process provided by The Police Act has been completed, namely a hearing under that Act.
No precedent was advanced to show that any Police Act hearing must await the final disposition ot a criminal charge.
The argument was rather that until the criminal appeal in this particular matter had been disposed of there was no conviction on which to base the Police Act charge.
We do not accept the proposition that a judgment ot a lower court has no implications so long as it is under appeal.
Judgments may issue, bail cease, etc. Sec. 26(3) ot Regulation 791 K.R.O. is by its very existence, proof that a lower court's decision has implications even though under appeal. It is significant that no precedent was advanced to support the argument that a judgment was a nullity so long as under appeal.
We were also referred to the case ot Myliynen vs Board of Police Commissioners of City of Peterborough et al 20 O.K. (2d) 254.
Both the Myliynen case and the Crease case are helpful and of interest but neither one is directly in point because both deal with action taken on Police Act charges and prior to a conviction under the Criminal Code. They lack the ingredient ot a Criminal Code conviction.
The order here is important: First the Criminal Code conviction followed by a Police Act charge and conviction, two ingredients rather than just one. If the criminal code conviction is without implication while under appeal it follows that the Police Act charge could not even be laid until all avenues ot appeals are closed.
This could take years and would lead to an absurd and unjust result.
The risk taken by the Board of Commissioners ot Police in proceeding with Police Act charges before the criminal appeal procedure is exhausted, is responsibility tor back wages should the criminal appealbe allowed.
Reason 3 ot the Grounds ot Appeal alleges bias in proceeding knowing an appeal was pending.
As set out above we see no reason why the Police Act proceedings should have been delayed.
Ground 4 refers to "apparent bias on the part ot a Commissioner".
We found no evidence on the record to support the alleged bias. It the evidence was in existence prior to the 9th of February, 1984 it should have been brought forth by evidence on that date.
Although the transcript ot the record does not commenc until the 26th January, 1984, we were given to understand that there were previous appearances and adjournments when the provisions ot Section 7 of Regulation 791 K.R.O. were met.
The Court of Appeal has now heard the appeal of the criminal case and noting the endorsement of that court's record we do not find the penalty imposed by the trial tribunal excessive nor unreasonable.
We therefore dismiss the appeal and confirm the conviction.
DATED at the City of Toronto in the Municipality of Metropolitan
Toronto, this 19th day of April A.D. 1985.
John P. Macbeth, Q.C.
Vice Chairman
F. Jennifer Lynch
Member
Winfield C. Mckay,
Member