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:
Sergeant William T. Johnson Appellant
-and-
City of Barrie Police Force Respondent
DECISION
Panel: John P. MacBeth, Esq., Q.C., Vice Chairman F. Jennifer Lynch, 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
Before: John P. MacBeth, Esq., Q.C., Vice Chairman F. Jennifer Lynch, Member
Appearances: Richard N. Ciarke, Esq., Q.C., Counsel for the Appellant The Appellant
Paul G. M. Hermiston, Esq., Q.C. Counsel tor the Respondent
Held: Wednesday, February 2Uth, 1985
This is an appeal by Sergeant William Johnson of the City of Barrie Police Force from his conviction and penalty imposed of reduction in rank to that of Police Constable, First Class. The charge was one of Discreditable Conduct, in that he did act in a manner likely to bring discredit upon the reputation ot the Police Force contrary to Section l(a)(i) of the Schedule Code of Offences of R.R.O. 791/80 and did thereby commit a major offence.
The Statement of Particulars reads as follows:-
"While employed as a member of the barrie Police Force on December 3rd, 1982, you were the investigating Officer detailed to a complaint of Incest involving a 1 year old victim, of barrie, Ontario. As a result of your investigation, you charged the victim's father, with Incest, contrary to Section 150 , Overcoming Resistance to the Commission of an Ottence, contrary to Section 230, and Rape, contrary to Section 144 of The Criminal Code of Canada. During April, 1983, prior to disposal of the criminal charges against Mr. Young by the Courts, you took up residence with the victim's mother, at her new address in barrie, Ontario."
(Note: Names and addresses of family have been omitted on purpose.)
After a number of adjournments this matter finally came to hearing before Deputy Chief Ralph R. berry on the 20th January, 1984. Evidence was admitted by way ot agreed statement in accordance with Section 14 ot R.R.O. 791/80.
The matter was adjourned to the yth February, 1984 for decision and to the 8th March, 1984 tor consideration of penalty.
The matter was appealed to the board ot Police Commissioners and conviction and punishment confirmed on the 6th September, 1984.
The conviction and the penalty imposed were appealed to this Commission on the following grounds:
(a) The conviction was against the evidence and the weight of the evidence;
(b) The penalty imposed was harsh and excessive and did not take into account all of the circumstances of the events involved.
At the commencement of the hearing Counsel for the appellant withdrew the appeal as to conviction but did make a motion for leave to introduce new evidence. This motion was denied since we were not satisfied that any "new" evidence had not been available on the 8th Marcn, 1984; there was no suggestion that it would be conclusive; and further no advance notice had been given of the motion
When reviewing the penalty imposed we were asked to consider the results of the criminal case against Melvin Andrew Young. It appears that Young was convicted on all three counts; Sergeant Johnson gave evidence at the trial, and throughout the trial there was no reference to Sergeant Johnson's relationship with Mrs. Young.
Counsel for Mr. Young also knew ot the relationship but did not raise it. Evidently there was also no media reterence to the relationship.
In other words, the relationship between Sergeant Johnson and Heather Young did not prejudice the case against Meivin Andrew Young nor was there any adverse public reaction, therefore the penalty should be mitigated accordingly.
The words of the offence are "likely to bring discredit".
It is an inviting argument to suggest that the odds on some result occurring are reduced below the level ot "probable" when such a result does not in fact occur.
We do not, however, accept this argument and believe the likelihood has to be viewed in advance and in the eyes of a reasonable person.
In our view a reasonable person could very well have concluded that very serious discredit to the force was likely to result from the conduct of Sergeant Johnson.
It was therefore proper for the trial officer to impose and the Board of Police Commissioners to support the penalty imposed commensurate with the likely discredit rather than the actual discredit.
We do not find the penalty harsh under the circumstances.
We have read the decision of the Board of Commissioners of Police and find no error of law in their or the hearing officer's procedures nor conclusions.
We therefore dismiss the appeal.
DATED at the City ot Toronto in the Municipality ot Metropolitan Toronto, this 21st day of April A.D. 1985.
John P. MacBeth, Q.C. Vice Chairman
F. Jennifer Lynch, Member