ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF the Police Act, k.S.O., 1980, c. 381, and Amendments thereto and Regulations thereunder;
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IN THE MATTER OF an Appeal to the Ontario Police Commission by:
CONSTABLES CHARLES SANDERS AND CRA1G MA1LLOUX BOTH OF THE TOWNSHIP OF SARNIA POLICE FORCE
DECISION
Panel: John P. MacBeth, Esq., Q.C., Vice Chairman Winfield McKay, Esq., Member
Hearing Date: Wednesday, April 16th, 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
Constables Sanders and Mailloux were both charged separately with Neglect ot Duty in that each did"without lawful excuse, neglect to promptly and diligently perform a duty as a member of the police force contrary to section 1 (iii) (a) of the Schedule Code of Offences of Ontario, Regulation 791/80, made in pursuance of the Police Act ot Ontario, and did thereby commit a minor offence.
The statement of particulars against Constable Sanders reads as follows:
ALLEGED: Being a member ot the Township of Sarnia Police Force on the 6th day of March, 1985, did fail to attend at the Provincial Court, 7UO North Christina Street, Sarnia Ontario at 10:00 a.m. as required to assist with the prosecution of David Jones.
The statement of particulars against Constable Maiiloux is the same save that Uebra Jackson is named in place of David Jones.
The charges were heard by Chief Schooley on the 2nd May, 1985. Guilty findings were made and each officer was penalized with torteiture ot two rest days.
The findings were appealed to the Board of Commissioners of Police which held hearings de novo on the 17th September, 1985. The convictions were confirmed with the penalties mitigated to admonishments.
It is our understanding that the various charges were heard separately, although some ot the evidence was the same for both matters.
Similarly the appeals to this Commission were heard separately, although much of the argument was the same for both matters. We have combined our decisions in the appeals since the reasons tor our decisions are the same in both cases.
The appeals to this Commission were based on a number of grounds. The decisive point is the lack of evidence of a written complaint or any document that might be substituted for it.
Counsel for the respondent informed us that this point was not raised at the original hearing before the Chief. He referred us to the decision of this Commission in the matter of an Appeal by Constable Ronald Tennant, York Regional Police Force held on the 20th December, iy«2. In that decision this Commission decided that objection to the lack of a written complaint should be made at the original hearing. Referring to Re Giles and Halton Regional Police Force (1981), 33 O.K. (2d) bbb (Uiv.Ct) this tribunal stated:
It is obvious from this decision that an accused officer is at liberty to demand production of the written complaint to satisfy himself/herself as to the jurisdiction of the trial officer. It would appear to us that this is a technical ground upon which an accused officer may take issue with the jursidiction of the trial officer but upon failure to raise the issue at the inception ot the trial proceedings he has deemed to have accepted the jurisdiction of the tribunal at least in that regard."
In the case before us, however, the matter was raised at the hearing de novo before the Board of PoliceCommiss ioners Commiss ioners.
Further we believe that we are bound to follow another of this Commission's decision in the matter of Staff Sergeant Glen Hayter of the Sarnia Police Force, dated the 2bth March, 1984. That decision reviews a number of the cases dealing with written complaints, including Re Giles and Halton Regional Police Force and Kupeyan v. Royal College of Dental Surgeons of Ontario, (1982), 37 O.K. (2d) 737 (Uiv.Ct). In the Hayter case the objection had been raised at the proper time and sincethere was nothing in the nature ot a written memorandum or anything in the nature ot a written complaint other than the charge itself, we were bound to allow the appeal.
Similarly we therefore allow this appeal and quash the penalty.
DATED at the City of Toronto in the Municipality of Metro politan Toronto, this 20th day of May, A.D. 1986
John P. MacBeth, Q.C. Vice Chairman
Winfield C. Mckay Member