Corporal Harold McDermott v. Ontario Provincial Police, 1985 CanLII 3198

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:

Corporal Harold McDermott Appellant

-and-

Ontario Provincial Police Respondent

DECISION

Panel: John P. MacBeth, Esq., O^.C., Vice Chairman F. Jennifer Lynch, Member Winfieid C. McKay, Esq., Member

Hearing Date: Friday, April 26th, 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., O^.C., Vice Chairman F. Jennifer Lynch, Member Winfieid C. McKay, Esq., Member

Appearances: W. Michael Temple, O^.C., Esq. Counsel tor the Appellant The Appellant

Michael W. Bader, Esq., (±.C. Counsel for the Respondent Ontario Provincial Police Force

Inspector W. G. German Ontario Provincial Police

Date: Friday, April 26th, 1985

1. This is an appeal by Corporal Harold McUermott, a member of the Strathroy Detachment ot the Ontario Provincial Police, pursuant to the provisions of section 58 of Regulation 791, R.R.O. 1980, as amended, from a decision ot Superintendent A. K. MacMartin rendered on September 6, 1984, whereby the appellant was convicted ot themajor offence ot deceit under paragraph l(d)(i) of the Code of Offences contained in the Schedule to Regulation 791, supra, and ordered reduced in rank, to Constable. The appeal is against both conviction and sentence.

2. The charge sheet upon which the appellant was tried alleged that he knowingly signed a talse statement in an official document. The allegation of such deceit was particularized as follows:

"On or about October 1st, 1983, you signed your initials on two Overtime Forms authorizing Provincial Constables Ernest David HAYNES #2980 and Alfred John HUNT #4302, respectively, to each claim payment tor nine hours overtime purported to have been earned on September 25th, 1983 from 1600 hrs. through 2200 hrs. in relation to a Pipe Band detail at Ottawa. You had personal knowledge of the hours ot duty performed that day by each of the members named and those hours do not coincide with the times stated on the forms which were authorized by your initials."

3. "On or about October 1st, 1983, you signed your initials on two Overtime Forms authorizing Provincial Constables Ernest David HAYNES #2980 and Alfred John HUNT #4302, respectively, to each claim payment tor nine hours overtime purported to have been earned on September 25th, 1983 from 1600 hrs. through 2200 hrs. in relation to a Pipe Band detail at Ottawa. You had personal knowledge of the hours ot duty performed that day by each of the members named and those hours do not coincide with the times stated on the forms which were authorized by your initials." with every justification take great pride in their achievements and devote many hours, otten without compensation, to practising tor their concerts. The supervision of the band is apparently iett in the hands of a drum major and pipe major who oversee the conduct of the members in much the same manner as a superior officer would his subordinates in regular police duties.

4. In September, 1983, the appellant was the drum-major of the Pipes and Drums Band. Constable Albert John Hunt of the Norfolk Detachment and Constable Ernest Haynes of the Milton Detachment were also members of the drum section of the band. The Pipes and Drums Band were engaged to play in Brighton on Saturday, September 24, 1983, and the following morning at the Police Memorial Day Ceremonies in Ottawa. The majority of the band members apparently travelled to the engagement by bus provided by the Force and departing from the Provincial Police Academy in Brampton. The contingent that had travelled by bus returned to Brampton at 7:30 p.m. on Sunday, September 25, 1983 after a five and one-half(5-1/2) hour journey from Ottawa.

5. Some time prior to the weekend of September 24-25, 1983, the appellant, a licensed pilot, had made arrangements to rent a twin-engined aircraft to fly to the band's engagements rather than travel by bus. Constables Hunt and Haynes were invited as passengers and each paid one hundred dollars towards the cost ot tuel for the aircraft. The appellant flew from London to Tillsonburg where he picked up Constable Hunt, to Waterloo- Wellington airport in Kitchener where he picked up Constable Haynes and then to Canadian Forces Base Trenton where the trio met the other band members tor the concert. After the Brighton performance the trio flew to Carp Airport near Ottawa where they rejoined the rest of the band members tor the Ottawa performance the following morning. The trio left Carp Airport at about 3:00 p.m. on September 25, 1983. Constable Hunt returned home after driving from the Tiilsonburg Airport at about 7:30 p.m. and Constable Haynes at about 6:20 p.m. on Sunday, September 25, 1983.

6. Constables Hunt and Haynes each submitted a claim for nine (9) hours overtime on September 25, 1983. The claims relating to the period between 4:00 and 10:00 p.m., were submitted on the regular departmental form and required approval by either the pipe or drum major. The appellant initialled both forms under circumstances which demonstrated his knowledge of their talsity. Constable Hunt testified that he submitted his overtime claim on the instructions of the appellant who had suggested that the time period claimed ought to reflect the normal travelling time from Ottawa to Norfolk Detachment rather than the actual time spent in travelling by aircratt. Constable Haynes testitied to similar effect.

7. The appellant did not seriously challenge the substance of his fellow band members' testimony and confirmed that he had asked Constable Hunt to change his claim to enlarge the number of hours claimed. The appellant seems to feel that one remedy tor what ne perceives as inequities in the compensation awarded to band members for their travel and practise time is to approve claims for overtime not actually worked.

8. There can be little doubt that band members put in substantial amounts of overtime, much of it without compensation other than a feeling of pride in their professional achievements. It would also seem incontrovertible that the Force policy on overtime may suffer from some inconsistency and laxity of application. On tner other hand, it ought to be clear that the submission of false claims and complicity therein is in no way defensible. Implicit in the authorship and approval of the overtime claims was the representation that they were bona tide. Both their makers and the appellant knew such was not the case.

9. The grounds ot appeal against conviction may be paraphrased as toliows:

(a) that the presiding officer erred in holding that the appellant intended to commit the offence charged;

(b) that the presiding otficer erred in tailing to consider the lack. ot personal gain for the appellant as well as the appellant's belief in the nature of his conduct in determining liability; and,

(c) that the presiding officer erred in tailing to consider the appellant's conduct in the context in which it occurred rather than ex post facto and further in tailing to consider the spirit ot the Code of Offences.

10. In appeals of this nature we are obliged to determine the case upon the record save in exceptional circumstances when we consider it advisable to hear further evidence. Whilst it is, no doubt, legally permissible for us to consider what are alleged to be factual errors, we, not having the opportunity to observe the demeanour of the witnesses heard, ought to be slow to reverse primary findings ot fact unless they are absolutely devoid of evidentiary foundation. In our view none of the factual findings here made are unsupportable upon the evidence adduced and to the extend that this appeal is founded upon any such allegation, it must fail.

11. The submission that the appellant did not intend to commit the oftence alleged must tail. The Code of Offences defines deceit in the present context, inter alia, as knowingly signing a false statement in an official document. The appellant clearly knew the claims tor overtime were false statements made in an official document which would be relied upon to advance payment to the applicants tor work which was not in tact performed. By initialling the documents the appellant clearly warranted the claims to be bona fide and intended to do so. No other conclusion can be drawn from the evidence adduced. His motives tor so doing are irrelevant to liability: highminded or public spiriteddeceit is nonetheless deceit. The appellant intended to do that which constituted the oftence charged. Nothing more was required.

12. The submissions founded upon lack ot personal gain and the appellant's belief as to the nature ot his conduct may be considered together. Whilst it is no doubt true that in the crime of fraud the primary purpose ot a traudsman is to advantage himself, it by no means follows that the crime may not be proven in the absence of such motive for personal gain (see, k. v. Olan, Hudson and Hartnett (197«) 2 S.C.R. 1175; Ke London and Globe Finance Corp. Ltd. (1903) 1 Ch. 728) or in the absence of any actual gain. Equally, it is no defence to a charge of traud that one's superior connived at or acquiesced in the submission ot fraudulent or fictitious accounts to be paid by a third party (see, The Queen v. Lemire 1964 CanLII 52 (SCC), 4 C.C.C. 11, 45 C.K. 16 (S.C.C.). The belief asserted to have been held by the appellant in this case does not constitute a defence to the offence alleged.

13. We are further not persuaded that the learned presiding officer tailed to consider the "spirit" ot the Code ot Offences. The conclusion reached was plainly sustainable, indeed incontrovertible, upon the evidence adduced and we are not prepared to interfere. The appeal against conviction is dismissed.

14. In considering the appeal from the punishment imposed, we are bound to first observe that where a submission isto be made upon the issue ot punishment founded in part, at least, upon a comparison with the sentence imposed upon others involved in the same offence, the disposition made in such cases ought to be made the subject of proper evidence or admission before the tribunal and not simply by way of unproven submission or allegation.

15. The appellant, an officer of obvious ability and heretofore unimpeachable character, tor altruistic motives participated in the creation of a document which he knew to be false. Whilst it must be made clear to those in supervisory positions that such conduct is deceitful and will not be tolerated, we are not persuaded that the punishment here imposed was required to give effect to the proper principles of sentencing. No doubt the perceived laxity in the enforcement of rules relating to overtime contributed to the creation of an environment in which offences of this nature might occur. The appellant ought not to be so punished as to visit all of the inadequacies of the overtime system upon him but it must also be made clear that such conduct is unacceptable. Giving the matter our best consideration, we allow the appeal against the punishment imposed and vary it to the forfeiture of twenty days of leave or days oft.

DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 28^th^ day of May A.D. 1985.

John P. MacBeth, Q.C. Vice Chairman

F. Jennifer Lynch Member

Winfield G. Mckay Member