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 STEPHEN HAYWARD
Appellant
-and-
SARNIA TOWNSHIP POLICE FORCE
Respondent
DECISION
Panel: Wendy L. Calder (Mrs.), Vice Chairman
Winfield C. McKay, Esq., Member
Hearing Date: Wednesday, October 21st, 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 (Mrs.), Vice Chairman
Winfield C. McKay, Esq., Member
Appearances:
Constable Stephen E. Hayward
The Appellant
Acting as His Own Counsel
Robert Murray, Esq., Q.C.
Counsel tor the Respondent
Chief Howard Schooley
Sarnia Township Police Force
Date: Wednesday, October 21st, 1987
W. McKay, Member
- Constable Stephen Hayward was charged with Neglect of
Duty; that is to say that "you did without lawful
excuse, neglect to promptly and diligently perform a
duty as a member of the Police Force contrary to section
1 (c)(i) of the Schedule Code of Offences of Ontario,
Regulations 791/80, made in pursuance of the Police Act
of Ontario and did thereby commit a major offence."
PARTICULARS:
The Statement of Particulars reads as follows:
Being a member of the Township of Sarnia Police
Force on the 12th day of May, 1986, did fail to
attend at the Provincial Court, 700 North Christina
Street, Sarnia, Ontario, at 10:00 A.M. as required
to assist with the prosecution of Margaret Douglas.
Constable Hayward pleaded not guilty to the charge which was heard before R. A. Whitnall, Chairman of the Sarnia Board of Commissioners of Police, S. Foreman, a member of the Sarnia Board and F. Pinsonneault. Counsel for Constable Hayward was D. J. C. Elliott, Q.C., the prosecutor was Robert Murray, Q.C. The date of the hearing in Sarnia was October 16th, 1986.
Constable Hayward was found guilty as charged and the penalty assessed was forfeiture of two days' pay.
Constable Hayward filed Notice of Appeal October 16th, 1986, received at the Ontario Police Commission October 28th, 1986 on the grounds that:-
(1) The proceedings ought to have been declared a
nullity in that the complaint in writing that
initiated the proceedings was that of Mary Moore
who is not a police officer or constable.
(2) The tribunal erred in finding that a major offence
had been committed as it was alleged that Chief
Schooley's motivation in not wishing to hear the
case himself was to deem it a major offence so that
it could be heard by the Sarnia Police Commission.
(3) That the presiding tribunal erred in finding the
appellant guilty inasmuch as he was not required in
court on the day in question as a plea of guilty
was entered by the accused.
(4) That, in the event the conviction was not quashed,
the presiding tribunal erred in imposing the
penalty of forfeiture of two days' pay in that the
attendance of the police officer was not necessary
in the circumstances as stated in reason (3).
A supplemental appeal of the Police Act conviction was dated February 7th, 1987 and received at the Ontario Police Commission February 18th, 1987. This further reason being that the original proceedings ought to have been declared a nullity as the presiding Board of Commissioners of Police included a non-Board member namely Frank Pinsonneault and as a consequence offended Section 17 (6) of Regulation 791 of the Police Act of Ontario.
A third appeal dated July 29th, 1987 and received by the Ontario Police Commission August 4th, 1987 was filed by Constable Hayward alleging undue delay in hearing his appeal and asking that his conviction be quashed because of the alleged undue delay.
Constable Hayward commmenced to review in considerable detail the various reasons for appeal as previously described. He pointed out that, re his appeal of July 29th, 1987, it was now a year since his conviction.
Constable Hayward reiterated his concern about a major charge being laid and cited consideration of this point in the original hearing in Sergeant Vanderwal's testimony on page 15 of the Sarnia transcript. He stated that he was a married man with three children, had ten years of service on the force and had acted as sergeant on occasion. He noted that at the time of the conviction he had been ill though he continued to work the Friday, Saturday and Sunday before the 12th of May, 1986 which was Monday.
He concluded by describing his concern at finding blood on his pillow the Monday morning of the scheduled court appearance (the result of a nosebleed) and that his preoccupation with arranging a medical appointment had been the cause of his not remembering the court appearance.
Mr. Murray then took the floor and reviewed the positions proffered by Constable Hayward. He observed that a major or minor charge was at the discretion of the Chief, the missing of a court attendance was obviously regarded as a serious matter by the Chief, and, that if any doubt about the Chief's impartiality in the matter existed, as expressed by Constable Hayward in his testimony on page 49 of the transcript, the proper procedure would certainly be to put it before the independent Board of Commissioners of Police.
He stated that the argument of Mary Moore not being a Constable was without substance. He asserted that the charge had been properly laid by Sergeant Vanderwal on May 27th, 1986. He affirmed that somebody had to keep track of such day-to-day occurrences and that Mary Moore had properly brought the non-attendance at court to light to be dealt with by others as they saw tit. He felt that some discredit reflected on the police force because of the fact that a witness in the case was aware that Constable Hayward had not been present even though a conviction was registered. He noted that this was thE second time Constable Hayward had missed a court appearance during 1986.
After considering the matter we are of the opinion that:-
(1) It is indeed unfortunate that elapsed time for
hearings such as these can extend for a year or
more. The Ontario Police Commission shares
Constable Hayward's concern, but, other than
sharing his concern, it is not sufficient reason to
quash his conviction.
(2) Mary Moore did not lay the official complaint and
the role of such "scorekeepers", who bring these
situations to light, should never be considered
that of making them the official complainant.
(3) Chief Schooley was clearly empowered to direct the
charge as he did. In tact if he, himself, was in
any way prejudiced on the matter, his decision
could be construed as favourable to Constable
Hayward.
(4) The argument that because a conviction was
registered, and that therefore Constable Hayward's
evidence was not critical to the case, has been
heard before, and is considered totally without
merit.
(5) The matter of Frank Pinsonneault not being a
legally appointed member of the Sarnia Township
Board of Commissioners of Police, at the time of
the hearing, was considered worthy of
consideration. However there is no indication that
a split decision of the Commission occurred, and,
therefore, we can but assume that the decision was
unanimous and that a proper quorum of two rendered
a valid decision. The possibility that Mr.
Pinsonneault, an experienced former member of the
Commission, might have influenced the other two
members of the Commission, of course, exists.
In summation we accept as fact that Constable Hayward missed his court appearance May 12th, 1986 without reasonable excuse. We are concerned, too, that this was a second such occurrence in 1986.
In summation we accept as fact that Constable Hayward
missed his court appearance May 12th, 1986 without reasonable excuse. We are concerned, too, that this was a second such occurrence in 1986.
- The conviction registered by the Sarnia Township Board
of Commissioners of Police on October 16th, 1986, is
sustained. The penalty is reduced to two days off, the
number of hours off to coincide with the length ot Constable Hayward's shift at the time of the offence.
DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 5^TH^ day of November A.D. 1987
Wendy L. Calder
Vice Chairman
Winfield C. Mckay
Member