ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF the Police Act, R.S.O., 1980, c. 381, and Amendments thereto and Regulations thereunder;
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IN THE MATTER OF an Appeal to the Ontario Police Commission by:
CONSTABLE V. S. NOSE Appellant
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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
Before: Wendy L. Calder, Vice Chairman Winfield McKay, Esq., Member David G. I. Stewart, Esq., Q.C. Member
Appearances: W. Michael Temple, Esq., Q.C. Counsel for the Appellant
Joan Haberman Counsel for the Respondent Ontario Provincial Police
Inspector A.M. Wilkinson Ontario Provincial Police
Date: Wednesday, 26th August, 1987
David G. I. Stewart, Q.C.
At 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 ot the proceedings.
It 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 R. M. Dunn, Constable A. D. Erkila 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.
Constable Nose 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 years 1985, 1986 you were directly and indirectly involved in the operations of a sporting goods store known as North Sports and Cycle, located at 80 Centre Street, Espanola, Ontario.
The matter was heard by Staff Superintendent H.T. Garry on the 24th of September, 1986 when a conviction was made and a penalty of the forfeiture of three vacation days was imposed.
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.
He further argued that section 61 was invalid in that it 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 ot Canada and every person who has the status ot a permanent resident of Canada has the right (b) to pursue the gaining ot 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 ot 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.
The same submissions were made by counsel tor the appellants in the appeals of Constable Roger A. Morel and Constable Bruce Watson before the Ontario Police Commission. These were rejected in our decisions dated February 9th, 1987.
The 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,
DATED at the City of in the Municipality of Metro- Vice Chairman politan Toronto, this 25^TH^ day of September A.D. 1987
Wendy L. Calder Vice Chairman
Winfield C. Mckay Member
David G.I. Stewart Q,C. Member