Constable Robbin Marie Oberg v. Ontario Provincial Police, 1985 CanLII 3196

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 Robbin Marie Oberg, #5286 Appellant

-and-

Ontario Provincial Police Respondent

DECISION

Panel: John P. MacBeth, Esq., Q.C., Vice Chairman David G. Stewart, Esq., Q.C., Member F. Jennifer Lynch, Member

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 Robbin Marie Oberg 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

1. This is an appeal by Police Constable Robbin Marie Oberg of the Ontario Provincial Police from her conviction on the charge of Neglect of Duty

2. 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 18th, 1984, 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 therby commit a Minor offence."

3. A hearing was held before Staff Superintendent H. T. Garry on the 31st January, 1985 who convicted Constable Oberg of the offence and imposed the penalty of an admonishment.

4. In his opening statement at the original hearing the Prosecuting Officer, Inspector German, summarized the occurrence as follows:-

"The events that we're dealing with today occurred while Provincial Constable Oberg was on duty at Thunder Bay detachment on Tuesday the 18th of September, 1984. On the afternoon of that date a citizen telephoned Thunder Bay detachment and reported what appeared to be an attempted break and enter of a building which could be considered an unoccupied camp or cottage located on a property about 17 miles east of Thunder Bay just off highway 11. Provincial Constable Oberg responded and was closely followed to the scene by Provincial Constable Gary Cooper. Four people were taken into custody, one subsequently escaped and later that afternoon Provincial Constable Cooper reported to Thunder Bay detachment the escape ot a prisoner and the corporal, Corporal Jones and tour other officers conducted a search of the area which went on until about nine o'clock at night. The prisoner, who had given his name as Robert Elliott upon his arrest was later found to be Uarryl Todd Price and he was subsequently arrested in Thunder Bay on January the 1st, 1985."

5. A Constable L. W. Levesque, a member ot the U.P.P. also stationed at Thunder Bay was the third Constable to arrive at the scene. His evidence was that on his arrival the arrest had already been made. "There was one female and a male subject and two male subjects laying on the floor handcuffed. I believe there was one subject Constable Cooper was still putting the handcuffs on when I arrived."

6. Constable Levesque subsequently left the scene to check by radio the identity of the prisoners and to make enquiries as to the ownership of the cabin. On hi return to the scene he is questioned at Page 7 ot the evidence as follows:-

"Q. When you returned you say the people were outside. The prisoners were outside? A. Yes sir.

Q. Four prisoners? A. Yes.

Q. And do you know who they were or who they are? A. Well I knew the girl's name was Magdalene Joannou, John William Hanryk was the other subject and found out later the one - one subject turned out to be Darryl Price. 1 can't recall the other chap's name.

Q. I see and you say that you went in and Constable Cooper turned off the hotplate and took some - took possession of what later was found to be marijuana? A. Yes sir.

Q. And what happened at that point? A. I then discussed with Constable Cooper whether he needed anymore assistance and they had decided that the girl, Joannou would drive her car and Manryk would take his motorcycle and come into the detachment that way and himself and Constable Oberg would handle the other two prisoners and 1 decided - I mentioned to him that 1 didn't want the intelligence unit to get burned because there was drugs involved and at times it is used as a surveillance car.

Q. I see. Did at any time - did Constable Cooper or Constabale Oberg ask your advice or assistance in relation to either guarding, escorting or transporting these prisoners? A. No. The only discussion was whether he wanted me to stay and that the two would drive in on their own and I mentioned about the car - excuse me, the intelligence unit being burned and he agreed that they could handle it so I then left.

Q. I see and at the time you left are you certain - were you certain then and are you certain now that your assistance was no longer requested? A. Yes, I was. Constable Cooper advised me that it would be looked after. They were capable of looking after it. I believe they were both caged cars that they had, the black and white cars that were there.

Q. When you - and I take it you walked back to your car? A. Yes, I did.

Q. Which you say you parked at the road with the other two police cars? A. Yes, I was the third car in the line.

Q. And can you tell us how far it was from the road to the cottage? A. Approximately 200, 250 feet.

Q. I see and when - when you left the cottage what was the state of affairs? A. Constable Cooper was inside. 1 went out and I passed the prisoners and I walked passed Constable Oberg and proceeded on out the driveway.

Q. And where - to your knowledge were the four prisoners present? A. As far as 1 know, yes.

Q. And where was Constable Oberg? A. I passed her just behind a car I guess it would be. She was closer to the road. Not far away or anything but she was at the rear of the car maybe 1U feet or so I believe to the best of my recollection.

Q. And how - how far then was she from the front door of this cottage? A. Oh probably 20, 25 feet I would imagine.

Q. I see and Constable Cooper you say was in - inside the cottage? A.Yes."

7. According to Constable Oberg1s testimony, she proceeded out of the cabin, walked down the driveway to unlock her cruiser. Constables Cooper and Levesque were still amongst the prisoners by the cabin at that time.

8. Exhibit No. 7 is a picture with the small cabin in the background, a police officer standing at the toot ot three steps leading to the cabin's porch. A driveway through trees leads to the cabin and there is a red traffic pylon in the driveway which would appear to be placed about one-third the distance from where the picture was taken to the cabin porch.

9. In referring to Exhibit No. 7 Constable Oberg's testimony at page 56 of the evidence reads and continues as follows:-

"Q. All right, now this picture that's been entered as exhibit number seven, can you explain approximately where this picture is taken from? A. That's approximately where I was at the time 1 heard the noise and I turned around and looked back.

Q. Okay. Can you explain what the red pylon in the foreground of the picture would be? A. That's where approximately Darryl Price went into the bush on this side.

Q. How far from where you were to that pylon or to where Darryl Price was, would that be? A. Approximately 15 meters.

Q. Okay and there's a picture of a police officer beside the stair? A. Right.

Q. What's the purpose of his standing there? A. That's approximately where Constable Cooper and Levesque were.

Q. Now when you looked back did you see them there? A. When I heard the noise I first looked at Darryl Price and then 1 looked back and they were still standing in the area that I had left.

Q. Were they looking towards your direction? A. One was facing my direction and the other one was facing the other way. They were standing there talking.

Q. Did you look for Price? A. I called out to him as soon as I heard the noises, hey, where are you going and then Mr. DeGagne replied that he was going for a piss.

Q. Did you go into the bush after him? A. Not immediately, no.

Q. How long did you wait before you went in? A. I don't know. It was a matter of a couple of minutes because at that time Constable Levesque had walked past me and past the prisoners, the remaining three there.

Q. Constable Levesque walked past you? Did you say anything to him? A. No, I didn't.

Q. Why not? A. Because I assumed that they had to have seen him go into the bush from the location that they were at.

Q. Did you then conduct a search for Mr. Price? A. I just made one circle into the bush and came out by the outhouse."

10. Again her questions and answers commencing on Page 58 read as follows:-

"Q. Now Constable Oberg you indicated that you waited a couple of minutes. Is that a guess or is that an accurate.... A. That's just a guess.

Q. Could it have been less than that? A. Possibly.

Q. But you didn't go in immediately to seek him out? A. No.

Q. Where would the other prisoners be in relation to your position? Would they be - like you have the picture of the cabin. Where would they be in relation to where you were and in relation to the cabin? A. They were between me and the cabin.

Q. Would they be closer to you or closer to the cabin? A. Probably closer to me.

Q. Where would Constable Cooper be in relation to the other three prisoners? A. In front of the cabin on the other side of him.

Q. And where would Constable Levesque travel? A. He was talking to Constable Cooper and then he walked passed me out the driveway.

Q. Did Constable Cooper at any time indicate to you that you were to take custody of the prisoners outside the building? A. No, he didn't.

Q. But he had given you instructions when you were inside to guard the prisoners? A.That's right."

11. Constable Oberg was charged with the same oftence as Constable Cooper. Both charges were heard separately. Both constables were tound guilty and both were admonished. No charge was laid against Constable Levesque.

12. Counsel for the appellant 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.

13. There is no question from the evidence that at one point all tour persons taken into custody were securely under control.

14. Although there is conflict in the evidence as to whether Constable Levesque was present when the escape was made it does appear from Constable Oberg1s own evidence that she was the officer closest to Darryl Price when he escaped into the bush. It would also appear to us to be an unexplainabie act of neglect by Constable Oberg to permit Constable Levesque to walk past her and leave the scene of the escape without saying something to him simply on the assumption that he must have seen Price go into the bush.

15. It appears to us that when you have four prisoners who were unquestionably secured and subsequently one escapes there is a reasonable assumption of carelessness o neglect. Here you have the additional failure or neglect of an officer to seek assistance from a fellow officer knowing that one of the prisoners was missing.

16. We, therefore, dismiss the appeal and confirm the conviction and penalty.

DATED at the City of Toronto in the Municipality of Metro-politan Toronto, this 2nd day of August A.U. 1985.

Shaun MacGrath. Chairman

John P. MacBeth, Q.C. Vice Chairman