Constable Brian W. Flannigan v. Ontario Provincial Police, 1987 CanLII 6338

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 BRIAN W. FLANNIGAN Appellant

-and-

ONTARIO PROVINCIAL POLICE Respondent

DECISION

Panel: Wendy L. Calder (Mrs.), Vice Chairman Winfield C. McKay, Esq., Member

Hearing Date: Wednesday, November 18th, 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

Background:

1. This is an appeal by Provincial Constable Brian W. Flannigan from his conviction and sentence on a minor charge of disobeying an order. He was charged under Section KbMii) of the Schedule of Code of Offences contained in Regulation 791 of the Police Act.

2. Constable Flannigan's case was heard on the 27th of May 1987 and reviewed by the Commissioner of the Ontario Provincial Police on the 2nd of June 1987 and confirmed on that date. The sentence of an admonition was imposed.

Facts:

3. Constable Brian Flannigan, an 18 year member of the Ontario Provincial Police, was, while off duty, in attendance at a Midget hockey game at the Fergus Arena o December 1, 1986. He was watching his son play hockey. After the game Constable Flannigan observed a disturbanceon the ice which to him was an assault against his son by one of the referees. He went to the referee's dressing room produced his police badge and began a series of interviews with the persons involved in the incident. On the 4th of December, as a result of a complaint of his conduct Constable Flannigan was told by his Detachment Commander, Staff Sergeant A. T. Braun, that, in the words of Staff Sergeant Braun: "The matter was a Fergus Police Department case and he should turn it over for their investigation, for a determination as to whether or not charges should be laid." He was also advised that he could lay a private information of assault.

4. For two or three weeks following Staff Sergeant Braun's comments Brian Flannigan interviewed several persons, obtaining signed statements from them relative to the incident. He did not lay a private information nor did he contact the Fergus Police Force.

As a result he was charged with a minor offence:

The Charge Sheet Reads:

"You stand charged with Insubordination in that you did without lawful excuse, disobey, omit or neglect to carry out any lawful order, contrary to Section l(b)(ii) of the Code of Offences contained in Regulation 791 made under the Police Act."

5. The Statement of Particulars required by Regulation 791 of the same statute reads:

"On December 4, 1986 you were given an order by Staff Sergeant A.T. Braun, Detachment Commander, Guelph Detachment, to cease your police involvement in an occurrence at a hockey game on December 1, 1986 at the Fergus Arena in the Town of Fergus, involving your son Jason Flannigan. You disobeyed this order."

Arguments:

6. Constable Flannigan argued his own appeal. He contends that what he did was not "police involvement". His interest in the matter was personal not work-related. He was a member of the hockey league executive and as such was concerned about violence in the game. In any event he argues that he did nothing after December 4th but follow up on what he had done before. He further argues that it was on his own time not as a police officer. Any statements he obtained were for the minor hockey association for the purpose of correcting the actions of the referees.

7. The Respondent argues that Constable Flannigan in these circumstances was, because of his son's involvement, unable to distinguish between his role as a father and his duty as a police officer. That failure to distinguish led to the complaint by a citizen which triggered events which ultimately led to the charge.

8. Mr. Brown, on behalf of the Force argues that it was made clear to the officer by his superior that an investigation of the matter was to be in the hands of the local police force of Fergus. He was in effect ordered, though not in so many words to, on December 4, 1986, desist from further involvement in the matter. It is not the duty of a police officer to embark upon an investigation within the jurisdiction of another police force unless specifically ordered to do so.

Issues:

1. What is an Order?
2. Is a Police Officer lawfully excused from obeying an order if his actions are personally motivated and not part of his police function?
3. If so, is that the case here?

Decision:

9. An "Order" to be an order does not have to be stated as such. If a direction from a superior is clear and unequivocal it is an order. In this day and age the words "that is an order" would be unusual. Staff Sergeant Braun's direction (order) to Flannigan was unequivocal. On December 4th he instructed the officer to cease his investigation and turn the matter over to the Fergus Police Force. Constable Flannigan continued This he says was on his own time and for the purpose of the betterment of the hockey league. This may be so. The point is he was acting as a police officer in doing so whether he intended that to be the case or not. That was the perception. After December 4th he interviewed a citizen while in uniform. During the second week of December he attended at the Crown Attorney's office to discuss the matter. Transcripts of the statements were typed by a clerk-typist at the police office at the request of Constable Flannigan between December 8th and 12th.

10. Even if we accept Constable Flannigan1s contention that what he was doing was a private matter on his own time does that provide a defence? We do not think so. Surely an officer cannot do indirectly that which he has been directly ordered not to do. To find otherwise could lead to public criticism. He is a sworn constable, an officer of the Crown.

11. By any reasonable analysis of the facts he was continuing an investigation after being ordered not to continue but to turn the matter over to another police force. We find therefore the offence has been committed.

12. With regard to penalty we note that an admonition is the minimum penalty for a minor offence. In view of Constable Flannigan's good record during his 18 years of service and his understandable personal concern in the incident a minimum sentence is appropriate.

We therefore dismiss the appeal.

DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 21st day of December A.D. 1987

F. Jennifer Lynch Member

David G.I. Stewart Q,C. Member