Constable Robert Gibson v. Waterloo Regional Police Force, 1986 CanLII 4297

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF the Police Act, K.S.O., 1*80, c. 381,

and Amendments thereto and Regulations thereunder;

• and –

IN THE MATTER OF an Appeal to the Ontario Police

Comniission by:

CONSTABLE ROBERT GIBSON

Appellant

-and-

WATERLOO REGIONAL POLICE FORCE

Respondent

DECISION

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

Winfield C. McKay, Esq., Member

Hearing Date: Tuesday, April 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

1. This is an appeal by Constable Robert Gibson trom the penalty imposed following his conviction of the major offence of Discreditable Conduct.

2. Constable Gibson was charged with acting in a disorderly manner contrary to s. l(a)(i) of the Schedule Code ol Ultences, R.K.O. 7yi/8U made in pursuance ot the Police Act of Ontario.

The statement of particulars reads as follows:

On July 13, 1985, you were at Bingeman Park,

1380 Victoria Street North, Kitchener. At

approximately 1:00 a.m., a security person

ejected you from inside the building where you

had been involved in a tight. You were

confronted by two paid duty, uniformed

officers outside and you used abusive and foul

language towards those officers in the

presence of numerous members of the public,

when the officers asked you to leave, you

refused to do so.

1. The matter came on tor hearing before Staff Inspector Uara Landry on the 16th September, 1981) on which date Constable Gibson entered a plea of "guilty" and evidence was heard concerning the matter. On the lyth September, 1985, Staft Inspector Landry imposed the penalty ot reduction of gradation from first class to second class constable for one year. Subsequently, the Chief confirmed the penalty but under date ot 20th November, 1985 the Board ot Commissioners of Police reduced the period to 6 months from one year.

2. The appeal was based on the claim that the penalty imposed was excessive and unreasonable under the circumstances given the sentences imposed in othersimilar cases in the Province ot Ontario.

3. Appeals or this nature confront this Commission with the fact that there is no absolute standard by which to measure the appropriate penalty. There are reasons why province-wide uniformity is not always an appropriate objective. The forces of the Province are each entitled to emphasize corrective measure tor problems which may be of particular concern to them. Concerns may change from year to year, community demands and standards may be different from one to another. In many respects what may appear just and fair to one hearing officer may not appear likewise to another. Fairness can be a matter of opinion.

4. For the above reasons this Commission is hesitant to substitute its thoughts on the fairness ot a penalty tor those of the Hearing Officer who heard the evidence, assessed the witnesses, and is close to the needs ot the force and of the community.

5. Counsel tor the appellant presented to us a number ot recent disciplinary decisions trom the Metropolita Toronto Police Force and Irom the Ontario Provincial Police force dealing with charges ot discreditable conduct and consuming intoxicating liquor in which the penalties ranged from an admonishment to a forfeiture ot 15 days oft.

6. Counsel tor the respondent referred us to the appeal ot Constable Gary Hancock also ot the Waterloo Regional Police Force. That appeal was heard by W. Thomas McCrenere, Ksq. , Q.C. on the 2yth ot May, 19bU. The penalty imposed was reduction trom first class constable to second class constable for a period ot one year. The sentence imposed resulted trom a plea ot guilty to a charge ot neglect of duty in that the constable was found idling while on duty (asleep) .

7. In the Hancock decision McGrenere concluded as follows:

After considering all matters, it was Deputy Chief Clare's sole discretion as to the sentence to be applied. It is the Commission's duty to insure (sic) that the trier of tact considers all relevant matters in determining what is appropriate by way ot sentence. It is apparent trom the record that Deputy Chief Clare did consider the matters that were relevant and applied the appropriate weight to his considerations. The Commission is not prepared to interfere with the conclusions of the Deputy Chief and the appeal, therefore, is dismissed.

8. We have reviewed a number ot this Commission's previous decisions dealing with intoxication, fighting and abusive

language in which discreditable conduct charges were involved.

9. The appeal of Constable Richard Archer ot the City ot Sarnia Police Force was heard by Messrs. Bell, Graham and Sparling on 18th November, iy?6. They sustained the penalty of required resignation.

10. The appeal of Constable Kenneth Hunter ot the Walkerton Police Force was heard by Messrs, bell ana Graham on 13th January, 1977. They sustained the penalty of d i sin is sal.

11. The degree of aggravation varies from case to case. There is also a wide range in the records of the officers involved arid the assessments ot their future value to the force.

12. In the case before us, Constable Gibson's record, apart from this incident, appears to be a good one. The evidence is that he is a good police officer with a good future in policing.

13. lt is somewhat surprising that the Trial Utticer, Staff Inspector Landry imposed a penalty ot reduction in gradation of rank trom tirst to second class constable for a period ot one year when Inspector Hodgkiss, the Prosecuting Officer, suggested a penalty ot forfeiture of tour days off.

14. However, the penalty was reviewed by the board ot (Jominissloners ot Police and the period to be served in the lower grade ot second class constable was reduced to six months.

15. The reasons cited tor review ot the penalty, namely, Constable Gibson's record ot service, the penalty requested by Inspector hodgkiss, the apologies made by Constable Gibson and the plea ot guilty are matters which should have been considered by the Board in their mitigation ot the penalty. We have no evidence that they did not do so.

16. This Commission is not convinced that the mitigated penalty is unreasonable nor that it amounts to an inj ustice.

17. It such were the case we would have a responsibility to vary the punishment imposed in accordance with s. 58(lU)(c) of Keg. 791/80.

18. However we do not interpret this section to impose a responsibility on the members ot this Commission to substitute their thoughts for those of the Hearing Officer or Board of Commissioners ot Police when we believe that all the relevant matters have been fairly and impartially considered by those bodies.

19. There are precedents tor more severe and less severe penalties in comparable situations. The appeal is therefore dismissed and the penalty as mitigated by the Hoard is affirmed.

DATED at the City of Toronto in the Municipality of Metr politan Toronto, this 5^th day of June, A.D. 1986

John P. MacBeth, Q.C.

Vice Chairman

Winfield C. Mckay

Member