Constable Stephen Hayward v. Township of Sarnia Police Force, 1987 CanLII 6347

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-

TOWNSHIP OF SARNIA POLICE FORCE Respondent

DECISION

Panel: John P. MacBeth, Esq., Q.C., Vice Chairman Winfield McKay, Esq., Member

Hearing Date: Tuesday, 28th 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:

Constable Stephen Hayward The Appellant

Michael Hogan Township of Sarnia Police Officer

Carl E. Fleck, Esq., Q.C., Counsel for the Respondent

Chief Howard C. Schooley Township of Sarnia Police Force

Date: Tuesday, 28th October, 1986.

John P. MacBeth, Q.C., Vice Chairman

1Constable Stephen Hayward was charged with Neglect of Duty in that he 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, Regulation 791/80, made in pursuance of the Police Act of Ontario, and did thereby commit a minor offence."

2The statement of particulars reads as follows:

"Being a member of the Township of Sarnia Police Force on the 10th day of February, 1986 did fail to attend at the Provincial Court, 700 N. Christina Street, Sarnia, Ontario at 10:00 a.m. as required, to assist with the prosecution of Orville Bressette and Glen Bressette".

3Under date of 21st April, 1986, Chief Schooley, the Presiding Officer, found Constable Hayward guilty of the charge and imposed "admonition" as the penalty.

4The conviction and penalty were confirmed by the Board of Commissioners of Police for the Township of Sarnia on June 12th, 1986.

5On the 8th July, 1986 the Commission received a Notice of Appeal from Constable Hayward dated 26th June, 1986. At the request of the appellant the Commission extended the time for service of notice of appeal in accordance with Section 58(3) of the said Regulation 791.

6At the hearing of the appeal to this Commission Constable Hayward argued that there was no complaint in writing to comply with Sec. 6 of Regulation 791. We find that Exhibit 4 constitutes such complaint. He also contended that since his failure to attend Court was brought to notice by Mary Moore, the Court Co-ordinator a civilian member of the Force that the investigation should have been initiated as a civilian complaint. We reject this contention.

7Constable Hayward also appealed on the basis that rather than being charged under Section 1 (c)(i) of the Code of Offences he should have been charged under Section 1 (c)(x) under which he might have pleaded reasonable excuse. Constable Hayward's two year old daughter had become seriously ill and he had taken her to a doctor in London, Ontario and his concern for the child caused him to overlook his court responsibility. It also developed that Constable Hayward's testimony was not required in court on the 10th of February, 1986.

8The Code of Offences is so drafted that the basis for many charges can properly be included in more than one of the many sections and subsections of the Code. The decision under which section to proceed rests with the person preparing the charge. He must be satisfied that the evidence of the fault will support the decision he makes. It is not in itself a defence to show a more precise charge under which proceedings might have been taken.

9It is not an answer to a charge of failure to be at a particular place to subsequently show that your presence there was not necessary. Constable Hayward spent considerable time in relating the reasonableness of his failure to attend court based on the illness of his daughter.

10Mr. Fleck drew our attention to pages 50 to 53 of the transcript where Constable Hayward states that one reason for not relating his daughter's illness earlier was that he was never asked. We were not impressed by Constable Hayward's evidence on this matter believing that a co-operative officer would have offered such reason whether directly asked for it or not.

11The penalty imposed in this matter was an admonition which is the least of the permissable penalties.

12We are satisfied that the charge has been substantiated and that in view of the penalty imposed that fair consideration has been given to the reasons given for failure to attend.

13We therefore dismiss the appeal and affirm the penalty imposed.