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 IAN MEGAHY
Appellant
-and-
METROPOLITAN TORONTO POLICE
Respondent
DECISION
Panel: D.G.I. Stewart, Esq., Q.C., Member
John P. MacBeth, Esq., Q.C., Vice Chairman
F. Jennifer Lynch, Member
Hearing Date: Friday, May 22nd, 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:
D.G.I. Stewart, Esq., Q.C., Member
John P. MacBeth, Esq., Q.C., Vice Chairman
F. Jennifer Lynch, Member
Appearances:
Harold Dale, Esq.
Counsel for the Appellant
Patricia Simpson
Counsel for the Respondent
Inspector Crampton
Metropolitan Toronto Police
Date: Friday, May 22nd, 1987
D.G.I. Stewart, Q.C., Member
- This is an appeal from a conviction and penalty imposed by the Presiding Officer Superintendent B. Nadeau following a hearing held on the 10th of April and the 15th of May, 1986 on a major charge of Discreditable Conduct alleged to have been committed on November 27, 1985 contrary to Section 1 (a)(i) of the Schedule Code of Offences under Regulation 791-80 made under the Police Act which was reviewed by the Board of Commissioners of the Metropolitan Toronto Police on the 25th of September, 1986.
FACTS:
- The relevant facts of the case are not in dispute and are succinctly stated in part of the statement of particulars from the Charge Sheet which reads as follows....
Being a member of the Metropolitan Toronto Police
Force, attached to Number 14 Division, you, on
Wednesday, November 27, 1985, while off duty,
attended at Number 13 Division Police Station, at
about 3:28 p.m. You had conversation with Police
Constable Bruce Bolitho, 6891, and with Staff
Sergeant Michael FENWICK, 2336, relative to the
issuance of said (a) parking ticket, resulting in
you being advised by Staff Sergeant Michael
FENWICK, 2336, to go through the court. You then
grabbed the parking ticket, walked towards the
front door, and stated, "Fucking assholes", and
left the police station. Your actions were such
that they were likely to bring discredit upon the
reputation of the Police Force.
Counsel for the Appellant contended that this tribunal lacks jurisdiction to try the appellant because, the offence was not service connected i.e. there was no nexus or connection capable of truly affecting the morale, discipline or the efficiency of the Police Force. We were referred to several legal authorities which deal with the issue of a connection between an offence and a service such as military service.
The Respondent argues through counsel that the case relating to nexus are of a different nature and deal with matters in military courts. These cases are distinguished from the case before us. She further refers us to a decision of this tribunal, namely that of Constable Stephen Duriancik decided by J. P. MacBeth, Q.C., Vice Chairman and W. T. McGrenere, Q.C., Member on September 3, 1982. The Respondent contends that the case before us should be governed by the same considerations used in Duriancik.
We do not agree that there is an analogy between military personnel and police forces of this Province. While it is often stated that police are a paramilitary organization, they are, in essence, not military. The arguments presented by the appellant with respect to the analogy are therefore not acceptable to us.
The question is whether what was said was "likely to bring discredit upon the reputation of the police force". Section l(a)(l) of the Schedule Code of Offences reads as follows:
"l(a)(l) 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
(i) acts in a disorderly manner, or in a manner
prejudicial to discipline or likely to bring
discredit upon the reputation of the police
force".
On the facts of this case, Police Constable Megahy was off duty and not in uniform at the time of the incident. Staff Sergeant Fenwick recognized Megahy as a police officer, but did not know his name at the time. The Staff Sergeant had a discussion with Megahy about a parking ticket which ended when the Staff Sergeant said "you can go to court". With that, in Staff Sergeant Fenwick1s own words "the officer grabbed the ticket from the desk, turned around, walked two paces toward the front door and then said "Fucking Assholes". He left the station, got into his jeep and drove away. I called after him but did not not stop."
No defence was called at the hearing. There were no other witnesses. The only other person present when the words were uttered was Police Constable Bruce Bolitho who states that he did not hear the words uttered by Constable Megahy.
In support of maintaining the conviction, we arereferred to the Duriancik case decided by this Tribunal September 3rd, 1982. In that case the facts were that on the 29th of March, 1981 in a room at the old City Hall in Toronto, Constable Duriancik spoke to a civilian member of the Metropolitan Toronto Police Force a female clerk "using profane language which would be characterized as profane, abusive or insulting including calling Clerk Diane Hall a "slut". The only persons present were the Clerk, Diane Hall and a Cadet, Mr. Brennan.
In the Duriancik case the Tribunal was of the view that there was no assurance that conduct such as Constable Durianciks would not be contained within the four walls, as in fact it was not, and therefore carried with it the potential of wide discredit to the reputation of the force.
In any event even if the epithet became known to the public, we do not think that those words alone uttered in the circumstance in which they were, would bring discredit upon the reputation of a police force such as Metropolitan Toronto with over 5,000 police officers. The words are certainly distasteful, rude and should not be used by any police officer in a public context as for example in dealing with a member of the public. The context of their use here though not perhaps laudable, has caused no harm or at least not the harm contemplated by Section l(a)(l) of the Schedule Code of Offences.
The elements required for this particular offence not having been proved we therefore allow the appeal and the conviction and the punishment are quashed.
DATED at the City of Toronto in the Municipality of Metropolitan
Toronto, this 7th day of July A.D. 1987
David J. Stewart, Q.C,
Member
John P. MacBeth, Q.C.
Vice Chairman
Jennifer Lynch
Member