Constable Roger A. Morel v. Ontario Provincial Police, 1987 CanLII 6345

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:

ONSTABLE ROGER A. MOREL 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 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

1. At the opening of the proceedings it was stated that since constitutional issues would be argued that the Attorney General of Canada had been served with Notice of this effect and had replied that he would not be intervening at this stage of the proceedings.

2. 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.

3. Constable Morel was charged with Discreditable Conduct in that he did while a member of the Ontario Provincial Police Force and without the consent of the Commissione 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 Regulations.

4. The Statement of Particulars reads as follows:

"During the months of June and July 1985, being the sole owner of R & M Crafts Company, you were actively involved in the retail operation of this company dealing in novelties and gifts which were offered for sale to the public and did thereby commit a major offence."

5. The matter was heard by Staff Superintendent H.T. Carry on the 12th February, 1986 when a conviction was made and a penalty of the forfeiture of three vacation days was imposed.

6. The conviction and penalty were confirmed by the Commissioner of the Force on the 17th February, 19b6.

7. The decision was appealed to the Ontario Police Commission on the basis that the Staff Superintendent had erred:

8. in holding that the Appellant engaged in another occupation or calling,

9. in failing to hold that the Appellant is entitled to conduct his activity by virture of the provisions of the Canadian Charter of Rights and Freedoms,

10. in failing to hold that section 61 of The Police Act is discriminatory and hence unenforceable

11. in failing to hold that the Force acted in bad faith when endeavouring to discipline the Appellant.

12. This is a situation where an officer in following a handicraft hobby developed it to a stage where it showedbusiness potential for himself and his family

13. Under date of 20th January, 1982 Constable Morel addressed a memorandum to the Superintendent, Ontario Provincial Police, Long Sault, Ontario setting out the status of his business venture at that time for the Superintendent's information. The Force treated the letter as a request for permission to engage in a secondary occupation and under date of 26th February, 1982, then Deputy Commissioner R. A. Ferguson sent a memorandum to the Long Sault Superintendent instructing him to "advise Provincial Constable Morel that his request has been denied. As this is a commercialized endeavour, undoubtedly it could cause conflict ot interest and a source of complaint from other persons in the same type of manufacturing." (Exhibit #11)

14. Section 61 of Regulation 791 under the Police Act reads as follows:

"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".

11. Subsequently the business and the proprietorship thereof went through a number of changes but we are satisfied that Constable Morel continued to have a substantial interest in it and it was a commercial venture extending beyond what might be called a hobby. It was in fact another occupation or calling and was being engaged in without the consent of the Commissioner.

12. Section 61 provides for consent of the Commissioner to permit engagement in other occupations or callings. Permission implies the exercise of discretion. We accept that the decision of the Commissioner as to the possible effect of other employment on the Force is within his responsibility. It has not been shown that he exercised his discretion unreasonably or with bias.

13. It was argued that Section 61 of Regulation 791 contravenes the rights and freedoms of the Appellant guaranteed in Section 6(2) and 15 of the Canadian Charter of Rights and Freedoms.

14. We have reviewed both of these sections and do not regard Section 61 as denying the right to pursue a livelihood or as discriminatory against him as a person.

15. Many occupations have attached to them limitations based on such matters as conflict of interest, ethics, responsibility to customer or employer and we do not find that Section 61 goes beyond what is reasonable no to the extent of breaching the provisions of Section 6(2) and 15 of the Canadian Charter of Rights and Freedoms.

16. We therefore dismiss the appeal and confirm the penalty imposed.

DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 9th day of February, A.D. 1987

John P. MacBeth, Q.C. Vice Chairman

Winfield C. Mckay Member