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 Charles Paul Graham, #3372 Appellant

-and

Ontario Provincial Police Respondent

DECISION

Panel: John P. MacBeth, Esq., Q.C., Vice Chairman Wintield C. McKay, Esq., Member

Hearing Date: Tuesday, June 4th, 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, Esq., Q.C., Vice Chairman Wintield C. McKay, Esq., Member

Appearances: W. Michael Temple, Q.C., Esq. Counsel for the Appellant

J. Brian Johnston, Q.C., Esq. Counsel tor the Respondent Ontario Provincial Police Force

Inspector VI. G. German Ontario Provincial Police

Date: Tuesday, June 4th, 1985.

1. This is an appeal by Constable Charles Paul Graham from his conviction and punishment imposed on a minor charge of Deceit laid under Section 1 (d)(i) ot the scheduled Code of Offences contained in Regulation 791.

2. The Statement of Particulars reads as follows:-

"On the early morning ot March 22, 19)54 near the Village of Komoka, you stopped a motor vehicle driven by Brian GRISTEY, who upon demand provided a sample ot his breath to analysis by an approved roadside screening device known as an A.L.E.R.T. The device registered "WARN". You made an entry in your daily journal stating Brian GR1STEY had "Passed Alert Test", which you knew to be false."

3. Although the Notice of Appeal sets out a number ot grounds, the issue revolves on consideration of paragraph two which reads as follows:-

4. The Staff Superintendent erred in convicting the Appellant when the evidence established that the Appellant did not intend to commit the alleged offence.

5. Both counsel agreed that "intent" or "mens rea" is an important element in the charge ot deceit. At page 149 of the transcript Staff Superintendent Garry states as follows:-

"The Tribunal believes that there was inaccuracies recorded. And while the Tribunal doesn't believe it was with intent to deceive anyone, I think the Constable did, through an error in judgment or an error in assessing the reading in the ALERT, did make an inaccurate recording."

5. We agree that an inaccurate entry was in tact made and from the evidence we note the unprotessionai manner in which Constable Graham conducted the entire incident.

6. We also agree with both counsel that intent is a necessary ingredient for a charge ot deceit and this, ot course, has not been shown.

7. We, therefore allow the appeal and quash the conviction and punishment imposed.

DATED at the City ot Toronto in the Municipality of Metropolitan Toronto, this 21^st day of June A.D. 1985.

John P. MacBeth, Q.C. Vice Chairman

Winfield C. Mckay, Member