Constable Wilfred Mealing v. City of Barrie Police Force, 1985 CanLII 3205

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 Wilfred Mealing Appellant

-and-

City of Barrie Police Force Respondent

DECISION

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

Hearing Date: Monday, February 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:

Constable Wilfred Mealing City of Barrie Police Force

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

Appearances:

B. Clive Bynoe, Esq., Q.C. Counsel for the Appellant Rita Cole - Student-at-Law with Counsel for the Appellant Paul G. M. Hermiston, Esq., Q.C. Counsel for the Respondent

Held: Monday, February 18th, 1985

1. This is an appeal by Police Constable Wiitred Mealing of the City of Barrie Police Force from his conviction and penalty imposed of forfeiture of five days' pay on the charge of discreditable conduct.

2. The Charge and statement of Particulars read as follows:-

"That you did engage directly in a calling or occupation, TO WIT: Extraction Pius Steam Cleaning, without the consent of the Chief of Police, contrary to Section 29, of Regulation 791, under The Police Act of Ontario, and contrary to Section (1)(a)(viii) of the Schedule Code of Offences of Ontario, Regulation 791/8U, made in pursuance of The Police Act of Ontario, and did thereby commit a Major offence.

STATEMENT OF PARTICULARS

You did at the City of Barrie, in the County of Simcoe, on or about the 5th day of January, 1984, attend at the apartment of Mr. William Ram, situated at 329 Blake Street, Barrie, and then give a quotation to clean a sofa, two chairs and an ottoman for a price of S70.50 less a ten percent discount, total $63.00, and further, on or about the 9th day of January, 1984, you did attend at the apartment of Mr. William Ram and render cleaning services under the name of Extraction Plus Steam Cleaning, and did receive in compensation a cheque in the amount of S63.00 tor services provided."

3. The Notice of Appeal set out five grounds for appealing against the conviction; the first two of which read as follows:

(1) That the Presiding officer erred in law in that he did not permit cross-examination of the Barrie Police Department's witnesses to establish practice in the Barrie Police Department, which would tend to show implied consent of the Police Chief to constables engaging in any other occupation or calling;

(2) That the Presiding Officer erred in law in that he did not permit the Appellant to make full answer and defence;"

4. In our opinion counsel for the defense should have been allowed opportunity to examine such possible defences as implied consent, discriminatory treatment or unfair procedure.

Q. Would you agree with me that to your knowledge, a large number of members of your force are engaged from time to time in callings or occupations (other than that of a police officer)?"

5. Counsel for respondent took immediate objection to the question on the basis of irrelevance. The hearing officer sustained the objection.

6. At page 10 of the transcript of evidence the Hearing Officer is quoted as follows:-

"The charge of discrimination, or suggestion of discrimination against this witness or anyone else, is one that, on the face of it, 1 do not take very kindly to. As I said, you may be able to prove this."

7. He then proceeded to restrict evidence of possible discrimination by saying, "So, I stand by my ruling." thereby limiting counsel's ability to enquire into possible discrimination.

8. Subsequently in the proceedings when counsel for the appellant suggested that he had a number ot police officers he could call with the intention of showing that they had engaged in an outside occupation with the knowledge of senior members of the barrie Police Force without application for consent the Hearing Officer is quoted at page 39 of the transcript as saying, "Gentlemen, I find myself unable to move from my original position."

9. We are not prepared to say that the Chief could give implied consent when Section 29 ot Regulation 791 passed under The Police Act requires such consent be granted in accordance with the by-laws of the board or council. We understand there were no such by-laws. However, counsel should have been permitted to canvass the matter.

10. We also believe that evidence ot officers working at employment other than that of their police duties, could possibly show discrimination or unfair procedure and therefore should have been allowed.

11. We therefore allow the appeal and quash the conviction and punishment imposed.

DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 20^th day of March A.D. 1985.

John P. Macbeth, Q.C. Vice Chairman

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