Constable John Robertson v. Metropolitan Toronto Police, 1985 CanLII 3203

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 John Robertson

Appellant

-and-

Metropolitan Toronto Police

Respondent

DECISION

Panel: John P. MacBeth, Esq., Q.C., Vice Chairman David G. 1.Stewart, Esq., Member

Hearing Date: February 15, 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

David G. 1.Stewart, Esq., Member

D. A. Harris for the Appellant

H. Cohen for the Police Force

Also in Attendance: The Appellant Staff Inspector John Addison

Appearances:

Metropolitan Toronto Police

Held: February 15, 1985

1. This is an appeal by Police Constable John Robertson of the Metropolitan Toronto Police Force from a penalty imposed by the Presiding Officer, Superintendent Robert D. Fleming, following a hearing held on May 11, 1984 ofthe Metropolitan Toronto Police Disciplinary Tribunal held at 365 Bloor Street East, Toronto, on a major charge of Discreditable Conduct alleged to have been committed by him contrary to section l(a) (vii) of the Schedule Code of Offences of Ontario Regulation 791/80, made in pursuance of the Police Act of Ontario, which said Tribunal convicted the officer and sentenced him to a gradation in rank from first class constable to third class constable. The conviction and punishment were confirmed by the Board of Commissioners of Metropolitan Toronto Police on the 20th of September, 1984.

2. The conviction for Discreditable Conduct was based on the fact that the officer had been convicted in provincial court (criminal division) of the offence of obstructing justice under the Criminal Code (Canada) on December 19, 1983.

3. The facts upon which the Presiding Officer, Superintendent R. Fleming, made a finding of guilt were the Certificate of Conviction in the criminal court and a transcript from the court proceedings before His Honour Judge F. McMahon, which transcript included an agreed-upon statement of facts, which may be summarized as follows:

4. At his police station Constable Robertson spoke to a plainclothesman and in the presence of two other officers, stated "I am having a stag over on Nugget. If you hear any calls or you have to go over there, can you stay away?" Constable Robertson took a role in organizing the stag and bringing young ladies who were to perform, the same being "at the service of patrons". He was seen taking money on their behalf. At the stag there was gambling and liquor sold without a license. The stag was raided by the police, at which time gambling and unlawful selling of liquor, as well as immoral and indecent acts, were being performed by the women that P.C. Robertson brought to the stag. As a result charges were laid and convictions resulted, and the Constable was charged with attempting to obstruct justice. There was no evidence of corruption, bribes, threats, but it was admitted that he attempted to influence the officers into not investigating the stag. After a finding of guilt the accused tendered evidence with respect to sentence, including his record of service, two police witnesses, and his own testimony. Superintendent Fleming imposed a sentence of a gradation of two ranks.

5. At the commencement of the hearing counsel for the appellant made objection to the fact that an even number of members were hearing the appeal. this objection accordingly.

6. Superintendent Fleming imposed a sentence of a gradation of two ranks.

7. At the commencement of the hearing counsel for the appellant made objection to the fact that an even number of members were hearing the appeal. this objection accordingly.

8. Counsel for the Appellant argues that in making a finding of guilt Superintendent Fleming should have looked only at the conviction which flowed from the Provincial Court, and should not have relied upon the damaging content of the agreed-upon statement of facts. Furthermore, the Appellant contends that Constable Robertson, in his testimony, in the matter of sentence, attempts to explain, modify and correct certain impressions which were made in the statement ot agreed-upon facts.

9. Counsel for the Appellant directs this tribunal to the law with respect to the statement of agreed-upon fact, and refers us to a number of cases dealing with whether or not agreed-upon statements made in one trial may be subsequently used in another trial. The cases seem to confirm that, while formal admissions are binding only in the tribunal in which they are made, they may still be considered with other evidence in the subsequent hearing. It is quite proper, in our opinion, that Superintendent Fleming consider the statement of agreed-uponfacts in the previous hearing in the context of the evidence called on the sentencing of Constable Robertson, and to make his own judgment as to the weight which he would give the agreed-upon statement of facts.

10. The Appellant argues that Superintendent Fleming gave too much attention to the agreed-upon statement of facts and not enough to the weight of the officer's testimony.

11. The Respondent contends that the accused is trying to "have it both ways". On the one hand he wants to restrict the tribunal only to what flows from the Provincial Court findings, while at the same time wanting the accused's disclaimer of the damaging parts of the statement of fact to be given a greater weight.

12. In our view this appeal relates only to the conviction and the appropriateness thereof. The accused, in his testimony, disclaims certain parts of the agreed statement of facts. In particular, he denies that he had a part in acquiring the girls or organizing the stag, or that he received any money from the event. The accused's good performance as a police officer was put forward and it was indicated that he was having marital difficulties at the time. The Appellant, it is noted, had four commendations and one misdemeanor, and was regarded by the two Sergeant police witnesses as a willing constable who showed a good attitude toward his job.

13. Superintendent Fleming had an opportunity to make an assessment as to the credibility of the officer and, accordingly, did not find persuasive the officer's disclaimer of the damaging portions contained in the agreed-upon statement of facts.

14. Wi th regard to sentencing, the Appellant cites certain cases; in particular, McKay and Gillingham, decided by this tribunal on the 10th of November, 1976, in which the punishment awarded was a reduction of one rank in a situation where police officers became intoxicated in the process of a stake-out situation. The Appellant argues that the McKay and Gillingham facts were more serious yet there was a gradation of only one rank. We disagree. In this case we have the fact that, despite the officer's attempt to explain and minimize the contents of the agreed statement of fact, it WOUld appear that some of his answers were equivocable. This tribunal must consider the serious nature of a situation where an officer who, out of stupidity or cunning, approaches other officers to in any way persuade them not to do what is otherwise their duty to do.

15. We are of the opinion that the sentence imposed was appropriate in all of the circumstances and we accordingly dismiss the appeal and confirm the sentence imposed.

DATED at the City of Toronto in the Municipality of Metro politan Toronto this 27^th^ day of March A.D. 1985.

John P. MacBeth, Q.C. Vice Chairman

David G.i. Stewart, Q.C. Member