Constable A. D. Erkila v. Ontario Provincial Police, 1987 CanLII 6339

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 A. D. ERKILA

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: Wendy L. Calder, Vice Chairman

Winfield McKay, Esq., Member

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

Hearing Date: Wednesday, 26th August, 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

David G. I. Stewart, Q.C.

1At the opening of the hearing it was stated that the Attorney General of Canada had been duly served with a Notice of Constitutional Questions and had replied that he would not be intervening at this stage of the proceedings.

2It was agreed by us that Mr. Temple be permitted to make his remarks applicable to four other cases being heard by us on this date. On the basis that Mr. Temple represents the appellants in all five cases (the other cases being: Constable R. A. Barnes, Constable A. D. Erkila, Constable V. S. Nose and Constable R. R. Schram) he acknowledged that there was sufficient evidence presented at the hearing of each to support the convictions unless the appeals are allowed on the basis of the legal submissions made by him.

3Constable Erkila was charged with Discreditable Conduct in that he did while a member of the Ontario Provincial Police Force and without the consent of the Commissioner of the Ontario Provincial Police Force, engage in another occupation or calling contrary to Section 61 of Regulation 791 made under the Police Act and Section l(a)(viii) of the Code of Offences contained in the said Regulation.

Section 61 reads:

"Except with the consent of the Commissioner, no

member of the Force shall engage directly or

indirectly in any other occupation or calling, and

he shall devote his whole time and attention to the

service of the Force."

Section l(a)(viii) reads:

"1. Any chief of police, other police officer or

constable commits an offence against discipline

if he is guilty of,

(a) Discreditable Conduct, that is to say, if he,

(viii) contravenes any provision of the Police

Act or the regulations;"

The Statement of Particulars reads as follows:

"During the period of 21 July 1986 to August 1986 in

the Region of Sudbury, you were employed by Laamanen

Construction Ltd., 129 Fielding Road, Lively,

Ontario, operating construction equipment tor which

you received payment."

1. The matter was heard by Staff Superintendent H.T. Garry

on the 20th of November, 1986 when a conviction was made

and a penalty of the forfeiture of three vacation days

was imposed.

2. It was argued by the Appellant that section 61 of Regulation 791 R.R.O. 1980 made under the Police Act is discriminatory and hence unenforceable. He further contended that the common law recognizes an employee's right to use his free time as he wishes so long as his activities do not conflict with his employer's interest

3. He further argued that section bl was invalid in that is was in contravention of section 6(2) and 15 of the Canadian Charter of Rights and Freedoms. These sections read:

Section 6(2)(b) Every citizen of Canada and every person

who has the status of a permanent resident of Canada has the right (b) to pursue the gaining of a livelihood in any province.

Section 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of

the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

4The same submissions were made by counsel for the appellants in the appeals of Constable Roger A. More and Constable Bruce watson before the Ontario Police Commission. These were rejected in our decisions dated February 9th, 1987.

5The facts of this case are substantially the same as in the Morel decision. The officer has been engaged directly or indirectly in another occupation or calling without the consent of the Commissioner as required by the section.

We must therefore come to the same conclusion.

We dismiss the appeal and confirm the penalty imposed