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 JAMES FRANK GAMBLE
Appellant
-and-
ONTARIO PROVINCIAL POLICE
Respondent
DECISION
Panel: John P. MacBeth, Esq., Q.C., Vice Chairman
Winfield C. McKay, Esq., Member
David G. Stewart, Esq., Q.C., Member
Hearing Date: Thursday, May 22nd, 1986
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
John P. MacBeth, Q.C., Vice Chairman
Constable James Frank Gamble of the Ontario Provincial Police was charged with Discreditable Conduct in that he did act in a manner likely to bring discredit upon the reputation of the Ontario Provincial Police Force, contrary to Section l(a)(i) of the Code of Offences contained in Regulation 791 made under the Police Act
The Statement of Particulars reads as follows:
On the afternoon of November 28th, 1985 you were the operator of a motor vehicle on Highway 17 between Thessalon and Sault Ste. Marie while you were under the influence of alcohol and did thereby commit a Major offence.
The charge was heard by Staff Superintendent H.T. Carry on the 23rd January, 1986.
Constable Gamble pleaded guilty to the offence. The Prosecuting Officer, Inspector German, outlined the circumstances which gave rise to the charge as follows:
Mr. Commissioner, by way of opening remarks,
Provincial Constable Gamble was appointed to
the force on December the 4th, 1978. He was
transferred from White River Detachment to
Orillia Detachment on September 23rd, 1985,
and at the time of this incident he was
assigned to general enforcement duties. His
home town by the way is Thunder Bay, Ontario.
On Thursday, November the 28th, 1985,
Constable Gamble was off duty, and he was
travelling from Orillia to Thunder Bay. He
was alone, and he was driving a green Ford
pick-up truck with a white cap. At
approximately 1:55 P.M. that afternoon a Mr.
Lloyd Sullivan of Thessalon, Ontario was
driving east on 17 Highway from Edward Street
in Thessalon when he observed a vehicle
approaching him, which was later identified as
the vehicle driven by Constable Gamble. Now
the Gamble vehicle was travelling west on 17
Highway, and Mr. Sullivan first observed the
Gamble vehicle approaching him, and the Gamble
vehicle at that time was in the eastbound
lane. Mr. Gamble - correction - Mr. Sullivan
thought that Gamble was about to make a left
turn to go into the Town of Thessalon, however
he then realized that the Gamble vehicle was
approaching him on the wrong side of the road,
and he also realized that he was on a bridge
and had no place to go. As the Gamble vehicle
approached it swerved back into the westbound
lane and continued on west, and Mr. Sullivan
went immediately to the O.P.P. office and
reported the matter.
At 2:12 on the same afternoon Wayne Tremblay,
who is 26 years of age, and employed as a
civilian radio operator at Thessalon
Detachment, he was also driving west on 17
Highway, and he observed what was later
identified as the Gamble vehicle approaching
from the rear. He observed this in the rear
view mirror, and noticed that the Gamble
vehicle was weaving on the roadway, taking
both westbound lanes. This was in a four lane
section. He observed the Gamble vehicle
taking both lanes from shoulder to shoulder.
The Gamble vehicle passed Tremblay at a high
rate of speed, and Tremblay recorded the
license number as being HP5-252. As Gamble
passed two more vehicles he swerved to the
left shoulder. Tremblay was able to attract
the attention of an eastbound O.P.P. cruiser
which turned and gave chase, overtaking
Constable Gamble in Echo Bay.
A third motorist became involved in this
incident, a Mr. Mohd, and the surname is Odeh,
a salesman from Hamilton, Ontario. He
observed the erratic driving of Constable
Gamble, and gave his account to the
investigating officers later on. He observed
the Gamble vehicle approaching him from the
rear, and it came close to hitting him, or
hitting his vehicle rather. The Gamble
vehicle then passed this witness and swerved
from left to right as he passed the yellow
car. Mr. Mohd said that the Gamble vehicle
appeared to be out of control.
Provincial Constable V. B. Bruzas of Sault
Ste. Marie Detachment responded to a message
from the Thessalon Detachment officer who had
taken the complaint from Mr. Sullivan.
Constable Bruzas was travelling south from
Echo Bay and he clocked the Gamble vehicle on
radar, on a moving radar set at 144 kilometres
in a 90 kilometre zone. He then turned around
and gave chase, and as he overtook the Gamble
vehicle he observed it following a tractor
trailer, and described it as moving from side
to side as if attempting to pass on the right
shoulder. Constable Gamble was stopped in
Echo Bay at 2:20 P.M. As Constable Bruzas
approached the vehicle he observed the driver
to have the usual signs of impairment namely;
the smell of intoxicant, his eyes were red,
his movements were slow. Constable Bruzas
also observed that there was an empty glass on
the floor on the passenger side of the
vehicle, as well as a bag of ice cubes, and a
brown paper bag containing the top of a
Schnapps bottle. When he was questioned about
this Constable Gamble explained that he had
thrown the empty bottle out the window before
he was stopped. Constable Gamble identified
himself as James Gamble of Orillia. He was
arrested and taken to Sault Ste. Marie
Detachment. After the proper warnings and
demand breathalizer tests were conducted by
Provincial Constable P. D. Slater, and the
tests were conducted after 3:14 P.M. As a
result of the first test it showed a blood
alcohol reading of 228 milligrams. The second
test showed a reading of 230 milligrams of
alcohol in 100 millilitres of blood.
The penalty imposed was that the member be required to resign, and in default of resigning within seven days, to be summarily dismissed from the force.
The appeal was based on the following grounds:
The Staff Superintendent failed to take into
account and give sufficient weight to the fact that
the appellant pleaded guilty to the charge against
him at the first available opportunity.
- The Staff Superintendent failed to take into
account and give sufficient weight to the fact that
the Appellant had entered a rehabilitation program
made available to him by the Career Management
Branch of the Force and that it is against the
policy of the Ontario Civil Service to discharge an
employee who has voluntarily accepted assistance
from a government sponsored rehabilitation program.
- The Staff Superintendent failed to take into
account and give sufficient weight to the previous
unblemished record of the Appellant.
- The Staff Superintendent imposed a penalty far in
excess of penalties imposed by him in other similar
cases at the same time as the Appellant committed
the offence.
- The Staff Superintendent erred in arbitrarily
imposing a penalty recommended by the Commissioner
of the Force in a Police Order and thereby denied
the Appellant a fair hearing, or the appearance of
a fair hearing, contrary to the rules of natural
justice and the provisions of Section 11(d) of The
Canadian Charter of Rights and Freedoms.
The appellant also gave notice that he would seek leave to introduce additional documentary evidence at the hearing of the appeal relating to the background of the appellant. Leave was granted on the consent of both parties and on the understanding that both parties could introduce additional evidence.
As a result the following exhibits concerning the appellant were produced:
Number 6: Ontario Police College, Student Evaluation, dated 21 March, 1985.
Number 7: Letter dated 21st April, 1986 addressed "To
Whom it May Concern" from John C. Sawatsky,
Ph.D. Force Psychologist.
Number 8: Ontario Provincial Police: Personnel
Evaluation Report dated 15th March, 1986.
Number 9: Letter dated 21st May, 1986 addressed to
Provincial Police adjudicator from Mr. &
Mrs. Wm. J. Bonner, Alcohol, Drug and Prison
Ministry.
Number 10: Routine Order Number 19/86 dated 10 May,
1986 (Not concerning Gamble).
Number 11: Personnel Evaluation Report dated 15 Jan.,
Number 12: Personnel Evaluation Report dated 18 Oct.,
Number 13: Personnel Evaluation Report dated 13 Dec.
Number 14: Letter dated 5th July, 1985 from Eugene W.
Barley, Counsellor, St. Joseph's General
Hospital, The Smith Alcohol and Drug
Dependency Clinic to A. Ferguson,
Commissioner O.P.P.
Number 15: Letter dated 14th January, 1986 from M.
Mymko, M.D. Fort William Clinic to
Detachment Commander, Orillia.
Number 16: Routine Order Number 11/85 dated 16 March,
1985t concerning Gamble).
After production of documents Emily Zajac was sworn to record the evidence of Corporal Gary Sonnenberg of the Orillia Detachment of the Ontario Provincial Police. Corporal Sonnenberg was called by Mr. Bader, duly sworn and examined by Mr. Bader and cross-examined by Mr. Temple.
The examples placed before us, (exhibits 10 and 16), did indicate that the penalty under appeal was more severe than those imposed in other cases of driving under the influence of alcohol.
Constable Gamble was not driving a force vehicle, there was no accident, there were no injuries, there was little adverse publicity for the force. Constable Gamble pleaded guilty to a charge under s. 237 of the Criminal Code as well as the Police Act charge the penalty for which is presently under appeal.
The Code of Offences includes a section dealing with the consumption of liquor but there is no offence per se of being an alcoholic.
Counsel for the respondent contended that Constable Gamble's value to the force was spent because of his alcoholism.
Counsel for the appellant attached an Appendix "A" to his appeal statement which included a policy statement of the Ontario Government concerning employees with alcohol or drug abuse problems.
It commences to read as follows:
"It is the policy of the Government of Ontario that:
a) alcohol and drug abuse be considered treatable
illnesses and that the employee:
. be permitted to use sick benefits to undergo
. be granted other assistance as required;
b) confidential counselling be made available from the
Employee Advisory Service on a service-wide basis
to those employees who voluntarily seek help;
c) supervisors be trained:
. to recognize the effects of alcohol and other
drugs on job performance; and
. to be cognizant of this policy so as to be able
to recommend employees for assessment and treatment
in accordance with this policy;
d) the employing ministry must initiate a referral to
the Employee Health Services Branch for a health
examination where there is unsatisfactory job
performance and there is reason to believe the
abuse of drugs or alcohol is a contributing cause
e) employees who cooperate with the recommendations of
the employer-initiated referral be given reasonable
opportunity to improve their job performance;
f) employees whose job performance continues to be
unsatisfactory be subject to discipline up to and
including termination of employment.
Nothing in this policy is intended to exempt employees from required standards of performance and normal disciplinary measures."
Counsel for the appellant placed before us a letter dated the 21st April, 1986 addressed "To Whom it May Concern" signed by John G. Sawatsky, Ph.D., Force Psychologist. (Exhibit 7)
Re: Provincial Constable J.F. Gamble
I submit the following at the request of the
above.
I first met Provincial Constable J.F. GAMBLE
and his wife. Provincial Constable P.B. Gamble
in 1985 when they came to see me about their
problem about having to live apart. Mrs.
Gamble was located in the Marathon Detachment
and Jim Gamble, her husband in White River.
They had been married only about a year and
they indicated that having to live apart under
the circumstances had become quite
depressing. They asked if I could intercede
on their behalf to get them adjacent postings
in Eastern Ontario. I did intercede and the
Force was willing to consider their transfers
on compassionate grounds. However there was
no suitable openings at the time.
A month later Jim Gamble telephoned me to say
that his wife had given him notice that she
was leaving him and that he was very
distraught and depressed about it. Several
months later it came to my attention that
Gamble had an alcohol problem. I was not
directly involved but shortly later I was told
that he was taking treatment in a Thunder Bay
facility. Following the treatment program, I
had a visit from him in Toronto on November
27, 1985. By this time he had been
transferred to Orillia where it was possible
for him to attend AA meetings. He indicated
that the treatment program in Thunder Bay had
been good but he was having a lot of problems
due to his wife having left him and living
with another man who is a Force member. He
could not accept his circumstances and seemed
distressed. We came up with the strategy that
he would take some time off to live with his
parents in Thunder Bay for awhile in order to
be an out patient at the Thunder Bay facility.
I have not had personal contact with him since
then. I was informed that he was receiving
counselling from one of our Force Counsellors
in Thunder Bay as well as subsequently from a
family counsellor in the Toronto Area.
My perception of Jim Gamble was that he had
been a stable and healthy individual until his
marriage problems led to depression and
drinking. To the best of my knowledge he has
been a competent police officer. His most
recent Performance Review was excellent.
John C. Sawatsky, Ph.D.
Force Psychologist.
We note the sentence "Following the treatment program, had a visit from him in Toronto on November 27, 1985". Dr. Sawatsky refers to the transfer to Orillia where Constable Gamble could attend AA meetings and that the visit on the 27th November, 1985 was following the treatment program. The 27th November was the day previous to the date on which the offence under review occurred.
Corporal Gary Sonnenberg in his evidence before this tribunal stated that Constable Gamble had returned to work in January of 1986; that Constable Gamble's driver's license was under suspension until 1st March, 1986 and that he had served in the interim at desk and radio duty.
Constable Sonnenberg also gave evidence that Constable Gamble had admitted to him of attendance on 24th April, 1986 at the Highwayman Motel in Orillia when he had consumed alcohol and become intoxicated. This event was subseguent to the hearing on the 23rd January, 1986.
Other than this incident of intoxication which was while
off duty Corporal Sonnenberg reported that Constable
Gamble had carried his load of the work, that he got
along well with his peers and the public, and his
attendance record was good.
- A number of facts are in Constable Gamble's favour; his
pleas of guilty, his admission of an alcoholic problem,
no former charges and as noted this penalty was more
severe than those imposed in previous and subsequent
cases with more dire conseguences.
Counsel for the respondent contended that Constable
Gamble's value to the force was spent because of his
alcoholism.
- It appears that the force had taken a number of measures
to assist Constable Gamble with his problems including a
transfer to the Orillia Detachment where he could attend
A.A. meetings, and leaves so he could attend treatment
programmes in his home town of Thunder Bay. Exhibit
No. 14 is a letter dated 5th July, 1985 signed by Eugene
W. Earley on the letterhead of St. Joseph's General
Hospital The Smith Alcohol and Drug Dependency Clinic.
- It reports that Constable Gamble was at the clinic from 5th June, 1985 to 3rd July, 1985. It suggests that it might be desirable, or even necessary, for Constable
Gamble to move to a location where the Alcoholics Anonymous community is better established.
Constable Gamble attended an Alcoholic Clinic in June of
1985, he attended Alcoholic Anonymous Meetings in
Orillia and on 27th November, 1985 he visited John C.
Sawatsky, Ph.D. in Toronto and discusses his return to
Thunder Bay for further treatment. The following day en
route for Thunder Bay he obtained a glass, a bag of ice
cubes, and liquor then proceeded to drink and drive his
way to the alcoholic clinic. The preparations were
deliberately made for the trip.
- We have considered the points raised in the notice of
appeal and the facts recited in Constable Gamble's
favour. We do however, believe that he was given
assistance, counselling and support by the Force. He
had reasonable opportunity to come to grips with his
problems. His deliberate preparations for a drinking
spree on his return trip to the alcoholic clinic are not
convincing of attempt or intent to reform.
- We believe the evidence justifies the differences in penalties and the facts do not call for a further chance.
This appeal is therefore dismissed.
DATED at the City of Toronto
in the Municipality of Metropolitan Toronto, this 21st
day of July
John P. MacBeth Q.C.
Vice Chairman
Winfield C. Mckay
Member
David G. Stewart Q.C.
Member