Constable R. A. Barnes v. Ontario Provincial Police, 1987 CanLII 6346

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:

Before:

CONSTABLE R. A. BARNES

Appellant

-and-

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

David G. I. Stewart, Q.C.

1. 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.

2. 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. M. Dunn, Constable A. D.

Erkila, Constable V. S. Nose 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.

3. Constable Barnes 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

Regulations.

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 period October, November and December

1986, and January 1987 you were engaged as a painter

in the Minden area by Gino ZIORJEN, a contractor."

4. The matter was heard by Staff Superintendent H.T. Garry on the 15th of April, 1987 when a conviction was made and a penalty of the forfeiture of three days vacation was imposed.

5. It was argued by the Appellant that section 61 of Regulation 791 R.R.O. 1980 made under the Police Act I 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.

6. 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 of Canada and every person

who has the status of a permanent

resident of Canada has the right

(b) to pursue the gaining of 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 of

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.

7. The same submissions were made by counsel for 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.

8. 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 Toronto in the Municipality of Metropolitan Toronto, this 24^th day of September

Wendy L. Calder

Vice Chairman

Winfield C. Mckay

Member

David G.I. Stewart, Q.C.

Member