Constable Joseph Armand Conrad Bielisle v. Ontario Provincial Police, 1985 CanLII 3204

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 Joseph Armand Conrad Bielisle

Appellant

-and-

Ontario Provincial Police

Respondent

DECISION

Panel: Shaun MacGrath, Esq., Chairman

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

Hearing Date: Friday, January 18th, 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:

William J. Carroll, Esq.,

Counsel for the Appellant

Brian J. B. Johnston, Esq., Q.C.,

Counsel for the Respondent,

Ontario Provincial Police Force.

Held: Friday, January 18th, 1985.

1. This is an appeal by Provinical Police Constable J.A.C. Belisle from his conviction on the charge of Discreditable Conduct laid under Section 1 (a)(vii) of the Code of Offences contained in Regulation 791 made under the Police Act and from the penalty imposed requiring him to resign, and in default of resigning within seven days to be summarily dismissed from the Force.

2. The Statement of Particulars reads as follows: 7th, On April -#-th- 1982, in Provincial Court (Criminal Rockland Division), fc»-fc-t-aw«- Ontario, you were found guilty of the offence of Theft Not Exceeding $200. (JO, under Section 294(B) of the Criminal Code and did thereby commit a major offence.

3. The appeal as set out in the Notice of Appeal, reads as follows:

J.A.C. Belisle

1. appeals againt his conviction upon the following

grounds:

(a) The Charge Sheet upon which the appellant was

tried was and is a nullity in that:

(i) The decision to charge Constable Belisle

was made by a Disciplinary Committee and

not as required by the regulations.

(ii) The offence charged occurred in April of

1982 and the Charge Sheet was signed in

January of 1984, beyond the six month

limitation period set out in Section 76

of the Provincial Offences Act.

(b) The proceedings at trial were a nullity in that

the trial proceeded on the charge sheet dated

January 6, 1984, purportedly as amended, when in

fact there is no power in the Tribunal to amend

the said charge sheet; or, in the alternative

the charge should have been dismissed as not

proven, for the same reasons.

(c) The Hearing Officer erred in not granting a stay

of proceedings or in the alternative in not

quashing the charge sheet due to the delay

between the time the offence was committed and

the signing of the charge sheet.

2. Such further and other grounds ot Appeal as Counsel

may advise and this Commission may permit.

3. Appeals against the sentence imposed upon the

following grounds:

(a) The Hearing Officer erred in his finding that

the Appellant could no longer carry out his

duties effectively when all evidence submitted

on the Respondent's behalf, unchallenged by the

prosecution, was to the contrary (both evidence

viva voce and written material submitted).

(b) The Hearing Officer erred in holding that the

only appropriate penalty was that of 'compulsory

resignation'.

4. The notice also showed intent to make application tor leave to adduce further evidence on two issues, but this was not pursued at the hearing of the appeal.

5. The matter came on before Superintendent W. A. Smith on the 22nd of February, 1984, before Staff Superintendent H. T. Carry on the 3rd May, 1984 and was finally heard by Staff Superintendent H. G. Campbell on the 4th July, 1984.

6. Dealing with the first grounds of appeal it was stated that the Ontario Provincial Police Force has a Disciplinary Committee that reviews evidence and discusses whether a charge should be laid. No evidence was produced as to how such committee functioned but the existence of such a committee was not denied.

7. Counsel for the appellant argued that Regulation 791 sets out a procedure to be followed in laying charges and that procedure must be strictly followed.

8. A number of cases were cited in support of this contention: in re Giles and Halton Regional Police Force et al 33 O.R. (2d); re McLeod's Certiorari Application, Northwest Territories Supreme Court, (1973) 5 W.W.R. Page 129 and an unreported case between TheVanier Police Association and Sergeant Jacques Cyr, Applicants and The Vanier Board of Commissioners of Police Respondent heard by the Divisional Court of the Supreme Court of Ontario on 3rd July, 1980.

9. We are somewhat concerned by the remarks of Mr. Justice ,Morrow in the McLeod case, although they would appear to be obiter dictum, where under the following heading at page 142 he writes as follows:

"III The hearing was held not by the Superintendent

alone but by the Superintendent together with other

officials at the Yellowknife Institute.

10. I have already found that the Superintendent, Mr. Maksymowich, made the final disposition but it is equally clear that, as suggested to him by his superior officer Mr. Wilkins, the Superintendent followed the practice of holding his hearing with two additional members acting with him, at least to the extent of advising him and discussing the evidence and penalty to be applied with him. The charge lists the names of the disciplinary panel as well. Regulation 67, already referred to, provides that an inmate charged with an offence "shall be tried by the Superintendent". This Regulation, which is peremptory, has been promulgated under the authority of s. 13 of the Prisons and Reformatories Act.

11. It seems to be clearly established in law that "when a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly complied with": Duff C.J.C. in Harris v. Law Society of Alberta, 1936 CanLII 18 (SCC), S.C.R. 88, (1936) 1 D.L.R. 401 at 4U2-3, approving a statement of the law from Craies on Statute Law. A fair application of this principle to the present situation leaves no doubt in my mind that the applicant was "tried" by the panel, even though the final disposition may have been made by the Superintendent. Under this heading, as well, therefore, I would have to conclude that the hearing was not held in accordance with the limited authority provided tor it."

12. In reviewing these decisions we have, however, concluded that what took place here does not conflict with the law as interpreted therein. There most likely was discussion by Superintendent Cousens as to the laying of the charge but this was before proceedings commenced and appears to us little different from a police officer taking advice from a Crown Attorney as to the laying of a particular charge.

13. Once the formal proceedings were commenced we see no departure from the rules as contained in the Regulations.

14. When this matter came before Staff Superintendent Garry on the 3rd May, 1984, Mr. Johnston requested two amendments to the charge, that the date of the conviction be changed from 8th of April, 1982 to the 7th of April, 1982 and that the location be changed from "Ottawa" to "Rockland".

15. When asked if he had any objection Mr. Carroll replied "No comments with respect to that". The amendments were then made at that time, although evidence in the case did not proceed until the 4th July, 1984.

16. No case precedents were advanced to support l(b) ot the grounds of appeal other than the position that the Hearing Officer was strictly limited to those powers mentioned specifically in the Police Act and Regulations and in the Statutory Powers Procedure Act, R.S.O., 1980 c. 484.

17. This Commission has taken the position that the Trial Officer has the power to grant amendments so long as such amendment will not prejudice or takes the person charged by surprise

18. It is our opinion that in the circumstances of this case there has been no prejudice nor surprise to the appellant and that the amendment was properly allowed.

19. Ground l(c) of the appeal was on the basis that the charge should have been quashed due to the length of time between the 7th April, 1982 when the offence was first known and 6th January, 1984 when the charge sheet was signed.

20. Clause 46 of Regulation 791 under the Police Act and Section 11 of the Canadian Charter of Rights and Freedoms were advanced to support this ground of appeal.

21. The respondent gave as a reason for the delay two cases that had a bearing on other charges laid against the appellant that were proceeding through appellant jurisdictions.

22. Clause 46 of Regulation 791 provides a procedure tor expediting a hearing after charges have been laid. Its only relevance here would be to indicate that generally speaking justice should not be delayed.

23. Section 11 of the Canadian Charter of Rights and Freedoms governs proceedings in criminal and penal matters while we are concerned with a matter before an administrative tribunal. We also note that Section 11 apparently concerns periods after the charge has been laid.

24. Of interest is the judgment of J. Holland J. in Regina and Morrison 47 O.R. (2d) p. 185. Although, again this reference is to a Criminal Code charge and not one before a disciplinary tribunal. At page 211 he states:

11 In the present case, there being no post-charge delay,

it was jurisdictional error for the provincial court

judge to consider the pre-charge time. In doing so, he

committed a further jurisdictional error when he held

that the right of the accused to be tried within a

reasonable time had been violated."

25. There would appear to be no clear cut rule as what would constitute undue delay in the laying of a charge if indeed there is any time limit at all.

26. This conclusion is based on our opinion that the limitation periods set out in the Provincial Offences Act R.S.O. c. 400 have no application to disciplinary hearings under the Police Act.

27. In view of the circumstances in this case we reject this ground of appeal.

28. Dealing with the appeal of the penalty imposed we note that the judge at the Criminal Court hearing gave an "absolute discharge". However, in view of the theft, the deliberate attempt at concealment which extended over a period of time, and the premeditation involved we find no reason for interfering with the penalty imposed by the Hearing Officer.

29. We therefore dismiss this appeal both as to conviction and penalty.

DATED at the City of Toronto, in the Municipality of Metro politan Toronto, this 7th day of February AA.D. 1985.

Shaun Macgrath F.

Chairman

John P. MacBeth, Q.C.

Vice Chairman