Constable Richard Brown v. Haldimand-Norfolk Regional Police Force, 1987 CanLII 6336

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 RICHARD BROWN Appellant

-and-

HALDIMAND-NORFOLK REGIONAL POLICE FORCE Respondent

DECISION

Panel: Wendy L. Calder, Vice Chairman David G.I. Stewart, Esq., Q.C., Member

Hearing Date: Monday, October 26th, 1987 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:

Wendy L. Calder, Vice Chairman David G.I. Stewart, Esq., Q.C., Member

Appearances:

Constable Richard Brown The Appellant

W. Graydon Sheppard, Esq. Counsel for the Respondent

Date: Monday, October 26th, 1987

D.G.I. Stewart, Q.C., Member

Background:

1. This is an appeal by Constable Richard Brown ot theHaldimand-Norfolk Regional Police Force from hisconviction and sentence on the major charge ofdiscreditable conduct. Constable Brown was chargedunder Section l(a)(viii) of the Schedule Code ofOffences, Regulation 791 of the Police Act. The Chargerelated to the improper discharge of a firearm incontravention of Section 9 of Regulation 790 ot the sameAct.

2. Constable Brown's case was heard November 12, 1986 and December 19, 1986. He was found guilty and sentenced to five days vacation pay and a reprimand. By resolution April 13, 1987 the Regional Board of Commissioners of Police reduced the sentence to a reprimand only.

Facts:

3. In the early hours of the morning of July 15, 1986,Constable Brown set up a road block at the intersection of the East Quarter Line and Concession 14, in the Township of Delhi. A few minutes before he had been notified by radio that a vehicle being driven by asuspected impaired driver was being chased by a police cruiser. The pursued vehicle had resisted attempts to stop it, was driving irratically and had gone through several stop signs. Constable Brown was standing near his cruiser on the shoulder of the road. His car was in a roadblock position in the southbound lane. The pursued vehicle was northbound at a speed estimated at 150 kph. The suspect drove straight at Constable Brown. When the vehicle was twenty feet away the officer fired a single shot from his service revolver into the radiator of the car. Constable Brown jumped out of the way of the vehicle. The vehicle went into a ditch about 1 km further down the road. The driver was immediately apprehended and arrested by another officer for failing to stop for police, dangerous and impaired driving. Constable Brown and the occupants of the vehicle were unhurt. The car sustained minor damage. From these events he was charged.

4. Constable Brown's charge sheet reads:

"YOU STAND CHARGED

l.(a) That you did commit a major offence against discipline, namely, discreditable conduct in that on or about the 15th day of July, 1986, in the Township of Delhi, in the Judicial District of Norfolk, you discharged your firearm in the performance of duty in contravention of the provisions of Section 9 of Regulation 790, enacted pursuant to the Police Act R.S.O. 1980, Chapter 381, contrary to Section l(a)(viii) of the Code of Offences contained in the Schedule to Regulation 791, enacted pursuant to the Police Act, R.S.O. Chapter 381.'

Arguments:

5. The appeal was argued personally by Constable Brown. HE argued that on the whole of the evidence he should not have been convicted. He stated that certain parts of the evidence given by way of testimony against him were in error. He referred us to those points.

6. Counsel for the Respondent argued that the appeal should be dismissed on the face of it. The transcript was an accurate account of events. The findings of the tribunal should not be interfered with.

Law:

7. The section of Regulation 790 reads as follows:

9(1) No member of a police force shall discharge a firearm in the performance of duty except where, on reasonable and probable grounds, he believes it necessary,

(a) for the defence of his life or the life of another;

(b) to effect the apprehension, when other means are insufficient, of a person whom he, on reasonable and probable grounds, believes to be dangerous;

(c) to destroy a potentially dangerous animal (etc.)

(d) to give an alarm or to call assistance for an important purpose, when no other means can be used.

Issues:

1. Was the discharge of the firearm for one or more of the excepted purposes set out in the section?

2. If so, did Constable Brown have reasonable and probable grounds to discharge his firearm? What test, if any, can be used to determine these grounds?

Decision:

8. It is admitted that a single shot was fired into the radiator of the car. The transcript of the trial gives the officer's reason for firing the shot. At page 72:

"Q. Why did you feel it was necessary to discharge it?

A. I felt that I was going to be run over and I felt that firing the shot would discourage the person in the vehicle from coining after me and that was the reason I, this all happened in a split, split second timing."

9. One of the exceptions, namely that of the defense of his life as in paragraph (a) was the reason. Although this is contradicted by Sergeant Simpson who had a discussion with Brown after the incident, there was no serious dispute, however, that the circumstances confronting Constable Brown demanded split second decisions. He could have jumped in the ditch beside the road. He could have fired in the air. He had few options. The fact is that the car veered away from him after he fired the shot.

10. Did he have reasonable and probable grounds to fear for his life? How are we to judge?

11. We are assisted somehwat in this process by a decision of the Ontario Police Commission in Norman R. Shaw and James M. McGuigan, June 4, 1979. In that case two officers were involved in a high speed chase of suspects following which shots were fired by the officers when they mistakenly thought one of the suspects was pointing a gun at them.

12. The tribunal found that the officers acted on reasonable and probable grounds in the light of events as they occurred and not as they were subsequently ascertained. The test is stated in the decision: "The circumstances and atmosphere that existed on the night in question ought not to be lost sight of. It would not be fair or reasonable to examine the officers' conduct in the atmosphere of the quiet reflection afforded in the comfort of a hearing room. Both officers indicated they were excited, the adrenalin was flowing, and they were afraid. The facts of the occurrence briefly outlined above would seem to be more than sufficient to leave the officers in this frame of mind. The degree of circumspection expected of the officers must be considered in the light of events as they occurred and not in the light of facts subsequently ascertained."

13. The test in our opinion is to look at the state of mind of the officer at the time he had to take action. Perhaps discharging the firearm into the car was fruitless. He could not hope to stop a speeding car twenty feet away. It was an act of panic out of fear for his life. This is the fear that anyone else in his position might reasonably experience. The fear of one's life is a basic instinct. The fear was reasonable and founded on facts which were undisputed. A car was coining directly for Constable Brown at high speed twenty feet away. He had no reason to be sure it would alter its course. He knew in fact that it was hotly pursued by the police after refusing to stop.

14. We therefore find that the discharge of Constable Brown's revolver in these circumstances was in the defence of his life. This is within the exception described in Section 9 (1).

15. We therefore allow the appeal and quash the conviction and punishment imposed.

DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 25th day of November A.D. 1987

Wendy L. Calder Vice Chairman

David G.I. Stewart Q.C,. Member