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 ROBERT BRUCE WATSON
Appellant
-and-
ONTARIO PROVINCIAL POLICE
Respondent
DECISION
Panel: John P. MacBeth, Esq., Q.C., Vice Chairman
Winfield McKay, Esq., Member
Hearing Date: Thursday, 30th October, 1986
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:
John P. MacBeth, Esq., Q.C., Vice Chairman
Winfield McKay, Esq., Member
Appearances:
W. Michael Temple, Esq., Q.C.
Counsel for the Appellant
David Lepofsky, Esq.,
Counsel for the Respondent
Ontario Provincial Police
Assisted by Jason Gavras, Esq.
Inspector A.M. Wilkinson
Ontario Provincial Police
Date: Thursday, 30th October, 1986
John P. MacBeth, Q.C., Vice Chairman
This matter was scheduled for hearing on the same day as a similar appeal by Constable Roger A. Morel with the same counsel involved. Although the charge and circumstances were different the relevant issues were the same, namely the interpretation of Section 61 of Regulation 791 and Sections 6(2) and 15 of the Canadian Charter of Rights and Freedoms. It was agreed that where relevant the presentations made should apply to both cases.
At the opening of the proceedings it was stated thatsince constitutional issues would be argued that the Attorney General of Canada had been served with Notice to this effect and had replied that he would not be intervening at this stage of the proceedings.
Counsel for the parties also agreed to the introduction of additional evidence to assist on the Charter of Rights constitutional issue. To this end Mr. Lepofsky called Inspector A.M. Wilkinson of the Ontario Provincial Police. He was duly sworn and his evidence was recorded by Emily R. Zajac of the Ontario Police Commission. He was examined-in-chief by Mr. Lepofsky and in cross-examination by Mr. Temple. It was agreed that he be accepted as an expert in the area of professional standards for police officers.
Constable Watson was charged with Insubordination in that he was insubordinate by word, act or demeanour, contrary to Section l(b)(i) of the Code of Offences contained in Regulation 791 made under the Police Act.
The Statement of Particulars reads as follows:
"On 10 June 1985 you were ordered by Inspector E.D.
PETERSON, No. 17 District Headquarters, Kenora, to cease
any physical involvement in the Keewaedin Outfitters
Store, Red Lake, Ontario. You disobeyed that order and
did thereby commit a major offence."
The matter was heard by Staff Superintendent H.T. Carry on the 13th November, 1985 when a conviction was registered and a penalty of "Reprimand" was imposed.
The conviction and penalty were confirmed by the Commissioner of the Force on the 15th November, 1985.
The decision was appealed to the Ontario Police Commission on the basis that the Staff Superintendent had erred:
in holding that the Appellant had been ordered by
Inspector E.D. Peterson to cease any physical
involvement in the Keewaedin Outfitters Store, Red
Lake, Ontario.
- in failing to hold that there is no authority in the
Police Act for the giving of the alleged order.
- in failing to hold that the Force exceeded its
jurisdiction in endeavouring to prohibit the
Appellant from visiting the store and rendering
assistance to the people who are in charge of the
day-to-day operation, particularly when the
Appellant is not a financial investor in the store.
- in failing to hold that the Force acted in bad faith
when endeavouring to discipline the Appellant.
The evidence is that Constable Watson while stationed at the Red Lake Detachment became involved with the ownership and operation of Keewaedin Outfitters a business involved in hunting and fishing trips and sporting goods sales.
Arising from a complaint of a competitor a memorandum, Exhibit No. 8, was sent from C. A. Naismith, Deputy Commissioner (Acting) Chairman of the Discipline Committee to the Superintendent, No. 17 District Headquarters, Kenora, Ontario under date of May 28, 1985.
The contents of the letter are as follows:
"Re: Complaint of George WESOLOWSKI
Regarding: Prov. Const. R.B. WATSON, #4682
Red Lake Detachment
The Discipline Committee reviewed the investigation report in connection with the captionally-noted incident and unanimously agreed that remedial action is warranted.
The decision of the Discipline Committee is that Provincial Constable R.B. WATSON be counselled by a member of the District Headquarters Command Staff to strictly adhere to Section 61 of Regulation 791 and and Section l(a)(viii) of the Police Act Code of Offences.
Please inform Provincial Constable WATSON that any direct, hands-on, day to day physical participation in any other occupation or calling will be deemed a violation of the Police Act.
No documentation of this incident will be deposited on Prov. Constable WATSON's 291 "Individual Staff Record" file at any administrative level.
The complaint dossier should be purged from the 253-10 "Complaints Re Personnel File" at Detachment and District Headquarter's levels.
Please advise when the officer has been interviewed, with a copy to the Director, Professional Standards Branch.
Enclosed are copies for dissemination to the Red Lake OPP Detachment Commander and Provincial Constable R.B. WATSON, #4682."
Inspector Peterson of Number 17 District, Kenora at
Pages 4 and 5 of the transcript of evidence was
examined-in-chief concerning Exhibit No. 8 and answered
as follows:
"Q. I understand that on the 10th of June you carried
out those instructions issued by Deputy Commissioner
Naismith.
A. Yes, I did, correct.
Q. How was that done?
A. That was done on the telephone. I was told that
Constable Watson was on compensation at the time and
I arranged for Const. Watson to phone me at the
office in Kenora.
Q. And did you read to him the contents of that letter?
A. Yes, I did and I also asked him if he had received a
copy of the letter and he told me that he did.
Q. Had received a copy?
A. Yes.
Q. Did you give him any further instructions in regard
to this letter?
A. Yes, I did. I told him that any hands-on physical
involvement in the store would definitely result in
more severe disciplinary action.
Q. And did he acknowledge that he undertstood those
instructions?
A. Yes, he did. Our conversation, as I recall, lasted
for possibly four to five minutes and I recall
asking him twice if he understood what I had told
him and he assured me that he did and that he would
abide by these instructions.
Q. When you were issuing these instructions, was it,
did you determine that what you were telling him was
an order?
A. I had to assume that. I told him that any further
hands-on operations would result in this and I had
to construe that as an order.
Q. In other words, if he disobeyed that, you would
consider that disobeying an order?
Oh, yes."
Constable Watson was questioned concerning Exhibit No. 8 both during examination-in-chief and during crossexamination
On pages 35 and 36 of the transcript the questions and answers were as follows during examination-in-chief.
"Q. Now, you have heard the evidence presented today
relating to your alleged involvement in the Keewadin
Outfitters and you heard the evidence of Inspector
Peterson who testified that he telephoned you on
June 10, 1985. I think to be accurate I think he
said he left a message and that it was arranged that
you would call him but that in any event you spoke
together on the telephone on June 10, 1985. What is
your recollection of that conversation? Is it
substantially different from what he said this
morning?
A. In some aspects, yes. I don't recall the exact
date. I did return a phone call he placed to me.
At that time, he said, "I have a memo", I believe
the words were, "I have a memo in front of me and
you are supposed to be counselled under or because
of this complaint from George Wesolowski." He said, 111 can't see driving all the way to Red Lake to
counsel you on something like this. He says, "You
have been around for a long time." He says, "You
know what can happen as a result of things or a
complaint like this or of things like this." and I
said, "Yes, sir, I do." He said, "Fine, as long as
you know that. How's your back and when are you
going to come back to work?"
Q. And was that the end of the conversation as far as
you can recall?
A. Basically. As the inspector said, probably four
minutes. It was very short.
Q. And was the conversation cordial?
A. Yes, sir, I'd say so.
Q. And did you receive the impression that you were
being ordered during this telephone conversation?
A. No, sir, I didn't. I had the impression as the
inspector stated that he couldn't see driving all
the way to Red Lake to interview me or to counsel me
so he was counselling me over the phone.
Q. Was the word order used at all in the conversation?
A. No, sir, it wasn't.
Q. And as far as you were aware, you were counselled.
A. Yes, sir."
"Q. So, as a result ot this complaint and investigation
you were contacted by Inspector Peterson on the 10th
of June, 1985? Or he asked you to contact him?
A. That's correct. I don't recall the date.
Q. And at that time you said that you were in essence
counselled by Inspector Peterson over the phone?
A. Yes.
Q. Did you receive a copy of a letter signed by Deputy
Commissioner Naismith in regards to this?
A. I recall reading a letter or a memo saying that the
fact that I was having, I forget how the wording
went, as long as I had some sort of investment this
was fine but I don't recall getting a copy of that.
I turned my house upside down. I usually keep all
correspondence for a lengthy period of time, like
years, but I don't recall actually getting it. I
remember reading it but I, it could be in my staff
personal file. I couldn't say.
Q. Well, I'll show you the exhibit that (words not
clear) exhibit, the letter to Deputy Commissioner
Naismith.
Counsel tor the appellant made an interesting presentation that since no order was given there was no order disobeyed. He further suggested that Exhibit No. 8 did not authorize the giving of an order but only to counsel.
Seductive as the argument is we would be disregardingthe reality of the situation and the plain meaning of Exhibit No. 8 and the telephone conversation which followed if we did not view either or both as an order to comply with Section 61 of Regulation 791.
We have quoted the evidence dealing with Exhibit No. 8 and the subsequent telephone conversation recognizing the divergency of the evidence on the matter but we are satisfied that Corporal Watson did see a copy of the letter and understood the meaning of it. We find no difficulty in accepting as an order an order to comply with the law.
In this matter Constable Watson made no request for permission to engage in another occupation or calling and we find no reason for upsetting the finding of the hearing officer that he was so engaged.
In so far as the other grounds of appeal we follow our reasoning in the Roger A. Morel appeal.
We therefore dismiss the appeal and confirm the penalty imposed.
DATED at the City of Toronto In the Municipality of Metro politan Toronto, this 9TH day of February A.D. 1987
John P. MacBeth, Q.C.
Vice Chairman
Winfield C. Mckay
Member