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:

SERGEANT ANTHONY ROBERTSON Appellant

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CITY OF OTTAWA POLICE FORCE Respondent

DECISION

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

Hearing Date: Tuesday, December 17th, 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: John P. MacBeth, Esq., Q.C., Vice Chairman David G. Stewart, Esq., Q.C., Member F. Jennifer Lynch, Member

Appearances: Emilio S. Binavince, Esq. Counsel for the Appellant The Appellant Adrian Hewitt, Esq. Counsel for the Respondent City of Ottawa Board of Commissioners of Police

Date: Tuesday, December 17th, 1985

David G. Stewart, Q.C., Member

1. This is an appeal by Sergeant Anthony Robertson of the Ottawa Police Force from a decision of the Board of Commissioners of Police for the City of Ottawa dated July 11, 1985, made pursuant to Section 1 (i)(ii) of the Schedule to Ontario Regulation 791 confirming his demotion from the rank of Staff Sergeant based on the grounds that on July 16, 1984, he did report for duty and was unfit for duty through the consumption of intoxicating liquor.

2. The original hearing was before Staff Inspector John McCombie and that decision is dated the 12th December 1984.

3. The evidence disclosed that the Appellant Sergeant Anthony Robertson then a Staff Sergeant with the Ottawa Police Force on July 16, 1984, after telephoning from his cottage that he would be late reporting for duty due to mechanical problems with his car, reported for duty approximately 15 minutes late. Observations made at that time by other Police personnel indicated that he was impaired and not fit for duty as a result of an admitted consumption of alcoholic beverages. Sergeant Robertson had been previously found guilty July 19, 1983, of consuming intoxicating liquor in a manner prejudicial to duty and reporting for duty in an unfit condition through drinking intoxicating liquor. He was assessed 10 days of leave. Sergeant Robertson had at the time of this offence been a member of the Ottawa Police Force for 31 years during which time his performance was capable and satisfactory. He has had no other previous convictions.

4. Appeal as to sentence was made to the Board of Commissioners of Police and was heard before His Honour Judge Keith A. Flanigan as Chairman with J.P. Vice, Q.C. and J.E. Scott in attendance on 11 July, 1985. At that time the sentence was confirmed except that the time for reapplying or rewriting the promotional examinations was reduced from one year to six months.

5. At the outset of the hearing before us, Counsel for the Appellant indicated that his client was appealing both as to the conviction and as to sentence. Objection was taken by the respondent's Counsel that his Notice ot Appeal was only to sentence.

6. The Appellant argues in effect that the proceedings before the Respondent Board were invalid by Sectio ll(d) of the Canadian Charter of Rights and Freedoms in that the accused has been precluded a fair hearing before the Respondent Tribunal and before this Tribunal. The Appellant is in effect arguing either for legislative change or an appeal of proceedings to an appropriate tribunal. We therefore hold that the Application to include appeal of conviction fails.

7. The Appellant's argument as to sentence is essentially that the demotion of rank from Staff Sergeant to Sergeant was too severe and excessively harsh in the circumstances. It was pointed out that the Appellant is 53 years of age, has served almost 32 years on the force and is retiring in approximately 2 years. It was argued that it is unlikely that he will be promoted to a higher rank before retirement. The Appellant argues there is no rationale for supporting the severity of the sentence and that the purposes of the sentencing, namely: special deterrent, general deterrent, and reform, have already been accomplished since the Appellant, an admitted alcoholic, has, through membership in Alcoholics Anonymous, already taken steps to rehabilitate himself. The Appellant argues further that the retribution aspect of sentencing could be the only object of such a severe sentence. Retribution, he argues, as such, must be rejected by this Commission as a totally inappropriate element in the sentencing process and cites legal authority for that position. The Appellant attempted to put into his case certain material being personal evaluation reports and a medical report which were dated subsequent to the decision appealled from. The Respondent objected to the Reports being introduced and this Commission noted the obj ection.

8. The Appellant attempted to put into his case certain material being personal evaluation reports and a medical report which were dated subsequent to the decision appealled from. The Respondent objected to the Reports being introduced and this Commission noted the obj ection.

9. The Respondent argues with respect to sentence that it is appropriate and is not unreasonable, this being the second offence of Sergeant Robertson. The Respondent argues further that the Appellant did not seek help until after the second offence was committed and points out that the period of reapplying for promotion was in fact reduced on compassionate grounds. The Appellant's effort to deal with his alcohol problem was regarded as a mitigating factor. The modification of the penalty by the Commission was appropriate and, it is argued, should remain.

10. Both Staff Inspector McCombie and the Board of Commissioners of Police held out the possibility of Sergeant Robertson returning to the rank of Staff Sergeant. By advancing the date after which Sergeant Robertson could requalify the Board indicated that this might happen in 1986. By holding out the possibility indicates that they considered him a competent Staff Sergeant. The evidence was that he had performed reasonably well and was respected by both those who held ranks junior and senior to him.

11. The matter before us is a penalty imposed for consuming intoxicating liquor in a manner prejudicial to duty. It is not a penalty for inability to perform to the requirements of the rank of Staff Sergeant.

12. If there is a recurrence of the offence the answer is a new charge, when after conviction a more severe penalty can be imposed taking into account the repetition.

13. We support the implication of both the Trial Officer and the Board of Commissioners of Police that Sergeant Robertson should be given a further opportunity in the rank of Staff Sergeant.

14. Since Sergeant Robertson1s capability to perform in that capacity has not been questioned we believe it reasonable to remove the requirement of again writing the qualifying examination. In view of the Board's alteration of the time period, in view of Sergeant Robertson1 s loss of pay and pension benefits to date, we believe that the penalty suffered by him to the date of this decision is sufficient and so vary the punishment that Sergeant Robertson be reinstated to the rank of Staff Sergeant as of the date of this decision.

DATED at the City of Toronto in the Municipality of Metro politan Toronto, this 3^rd day of February A.D. 1986.

John P. MacBeth, Q.C. Vice Chairman

David G. Stewart, Q.C. Member

F. Jennifer Lynch Member