Constable Daniel A. Overy v. City of Sarnia Police Force, 1985 CanLII 3201

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 Daniel A. Overy Appellant

-and-

City of Sarnia Police Force Respondent

DECISION

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

Hearing Date: Thursday, 21st February, 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

1. This is an appeal by Police Constable Daniel A. Overy of the City of Sarnia Police Force from his conviction and penalty imposed of two days I loss of leave on the major charge of neglect of duty in that he did fail to work in accordance with orders.

The Statement of Particulars reads as follows:-

liOn or about the 17th day of November, 19~3, while on duty in a Sarnia Police cruiser, P.C. Daniel Overy, while chasing a motor vehicle operated by one Christopher Michael Moran, utilized a Sarnia Police force vehicle in an attempt to slow or stop the said Moran vehicle by a bumping manoeuvre resulting in damage to the said police cruiser contrary to the standard methods of apprehension as set out in the Sarnia Police force rules and regulations and specifically Rule 7.1.3."

2. The appeal was made on a number of grounds amongst them the following:-

3. The words "without due permission or sufficient cause" are an integral part of a charge under offence l.(c)(iii) and that their omission from the charge made it a nullity.

4. That the statement of particulars is flawed in that it alleges two offences.

5. That the appellant could not commit the alleged offence unless he was actually chasing some fleeing motor vehicle during a high speed pursuit as defined by the rules and regulations of the Sarnia Police Force.

6. Entered in evidence was a copy of by-law number 4~ ot the Board of Commissioners of Police for 1977. the City ot Sarnia passed on the 22nd February, The by-law force. provides rules and regulations for the operation of the force.

7. Appendix 2 is entitled "Policy and Procedure Order Operation of Police Vehicles", and the provisions under the heading Methods of Apprehensionare as follows:-

The following methods of apprehension are prohibited:

7.1. Attempting to force the tleeing vehicle trom the highway.

7.1.1. Attempting to slow or stop the fleeing vehicle by positioning the police vehicle in front of the pursued vehicle

7.1.2. All bumping manoeuvres.

The following methods of apprehension are approved

7.1.3. Abandon pursuit

7.2 Pursue the vehicle until it stops.

7.2.1. Barricade the highway (see Section 7.3.)

8. Paragraph 4 of the same Appendix defines a "High Speed Pursuit" as follows:

"The driver ot a pursued vehicle refuses to stop and the speed of the police vehicle exceeds the speed limit by twenty miles per hour".

9. Sergeant Tremain on behalf of the appellant made a forceful argument that the charge was a nullity on a number of grounds. Reference was made to the case of ~egina vs Solowoniuk, 129 C.C.C. p. 273 where the word "wilful" was considered an essential ingredient of a charge under a section of the Criminal Code. He made parallel argument that the words "without due permission or sufficient cause" were an essential part of a charge under Sec. 1 (c)(iii) of the Code of Offences.

10. After consideration of the matter I have concluded that the plain reading of the words need not attach them to the first part of the charge IIfails to work in accordance wi th orders II and were more likely meant to apply to the alternates of leaving a specific posting. In any case they are there as a defence rather than a part of the offence.

11. In the criminal case "wilful" goes to the very root of the charge in establishing "mens rea".

12. It was also contended that the statement included two charges that of failing to work in accordance with orders and also that of causing damage to equipment.

13. I regard that words "resulting in damage" not as part of the charge but purely descriptive of the result ot failing to work in accordance with orders.

14. Again it was argued that the appellant was not involved in a high speed chase as defined in the Regulation since he had been blocking an intersection and when the pursued car approached and attempted to pass in front of the appellant's police cruiser he had simply moved forward at a relatively slow rate of speed and struck the pursued vehicle close to a right angle.

15. I do not accept the argument that the appellant was not involved in the pursuit simply because he had not been following the vehicle. To place such a narrow interpretation on the word "pursuit" would not be consistent with the broader dictionary detinition of the word.

16. Further, I do not find that the Section 7 clauses under "Methods of Apprehension" require the situation of a high speed pursuit as previously defined. regardless of speed.

17. Sergeant Tremain referred to Section 25 of the Criminal Code of Canada and the authority therein to use as much force "as necessary" in carrying out certain responsibilities. He questioned whether force regulations could limit those powers.

18. I believe that in matters of procedures to be followed, force regulations may restrict or prohibit actions such as "bumping" which might be permissible under the Criminal Code.

19. A similar argument was advanced concerning an officer's responsibility to apprehend offenders under Section 57 of The Police Act.

20. This case exemplifies the conflicts which arise from vehicle pursuits by police.

21. The officer's respons ibili ty to apprehend law breakers vs the chief's responsibility to insure that policing is performed with paramount concern for the safety of the public.

22. I have sympathy for Constable Overy's conduct in this matter.

23. From the evidence, I was given the impression that Constable Overy terminated this pursuit in an effective and successful manner without injury to anyone and with the arrest of the pursued driver.

24. He did. however, breach a standing order in the process.

25. I appreciated the various arguments advanced by Sergeant Tremain in defence of Constable Overy. However, all of the reasons were based on narrow technicalities and I do not find them supported by case precedent.

26. I would have preferred if this charge had been proceeded with as a minor offence rather than as a major.

27. Although this Commission has broad powers under Section 58 10) of Regulation 791. I do not believe those powers extend to changing a charge from major to minor.

28. Certainly the penalty imposed was of a minor nature and to interfere with it would be mere tinkering.

29. I therefore dismiss the appeal and confirm the penalty imposed as amended by the Board of Commissioners of Police for the City of Sarnia.

DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 2nd day Of April A.D., 1985.

John P. Macbeth, Q.C. Vice Chairman