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 CARLYLE KAYE, #6725 Appellant
-and-
METROPOLITAN TORONTO POLICE FORCE Respondent
DECISION
Panel: David G. Stewart, Esq., Q.C., Member Winfield McKay, Esq., Member
Hearing Date: Friday, February 7th, 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
David G. Stewart, Q.C., Member
[1]. This is an appeal by Constable Carlyle Kaye of the Metropolitan Toronto Police Force from his conviction and sentence imposed following a hearing held on the 12th day of December, 1984, and the 28th day of January, 1985 on the major charge of insubordination committed by him on or about the 7th day of May, 1984, contrary toSection 1 (b)(ii) of the Schedule Code of Offences, Ontario, Regulation 791/80 made in pursuance of the Police Act of Ontario.
[2]. The relevant facts are basically not in dispute. On Sunday, the 6th May, 1984, P.O. Carlyle Kaye, Badg Number 6725, contacted Staff Sergeant Paul Johnstone by telephone, and informed him that he was suffering from the flu and as a result was reporting sick. At 12:01 a.m., May 7, 1984, accordingly, P.O. Kaye did not report for his scheduled duty parade "B", and was never on his shift which ended at 8:00 a.m. that day, May 7. On the same day, May 7, 1984, at 9:15 a.m., Staff Sergeant Finlay contacted the residence of P.C. Kaye by telephone, and was advised that he was not at home. At 10:15 a.m. that same morning, he was located at a day course in real estate studies at Humber College, Toronto. Constable Kaye was not required to be on a regular schedule of duty after 8:00 a.m. on Monday, May 7, 1984, and in fact, his next schedule for duty was not until Friday, May 11, 1984.
[3]. Constable Kaye was charged with a major offence being insubordination in that he did without lawful excuse, disobey, omit or neglect to carry out a lawful order contrary to Section 1 (b) (ii) of the Schedule Code of Offences, Regulation 791/80, pursuant to the Police Act. The Statement of Particulars on the charge sheet states in part:
"You left your residence at 2 Keele Street, Apartment 201, while still on sick leave, without first obtaining permission of the officer in charge of your unit. Such action was contrary to Regulation 4.26.1, the Regulations, the Metropolitan Toronto Police Force."
Regulation 4.26.4 reads as follows:
"A member off duty due to illness or injury who wishes to leave his residence or other place of confinement shall obtain permission from the officer in charge of his unit before doing so and shall provide the officer in charge with the address and telephone number where he can be reached."
A breach of this regulation becomes an offence under Regulation 6.1.1, which reads as follows:
"Failure by a member without lawful excuse to comply with any of the provisions of this By-law shall be deemed to be disobeying, omitting or neglecting to carry out a lawful order, and such member may if he or she is a police officer be charged accordingly under the Code of Offences in Regulation 680 made pursuant to the Police Act, 1970, as amended. (now Regulation 791/80)"
- Thus, by the deeming provision of Section 6.1.1, abreach of any other regulation, here specifically 4.26.4, becomes subject to a charge under the scheduled code of offences pursuant to the Police Act.
The Appellant contends that Regulation 4.26.4 does not apply to the circumstances of this case, and invites us to consider the following arguments:
(a) A police constable is "on duty" as contemplated by these Regulations only during the performance of his/her tour of duty. A police constable is otherwise off duty."
(b) The plain meaning of Regulation 4.26.4 is such Chat an officer is obliged to obtain permission from the officer in charge of his unit before leaving his residence only during those hours which he would have been "on duty", if not for his illness or injury. P.C. Kaye at 9:00 a.m. May 7, 1