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 BRYAN GALLOWAY
Appellant
-and-
INNISFIL TOWNSHIP POLICE FORCE
Respondent
DECISION
Panel: John P. MacBeth, Esq., Q.C., Vice Chairman
Winfield C. McKay, Esq., Member
David G.I. Stewart, Esq., Q.C., Member
Hearing Date: Thursday, 6th November, 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 C. McKay, Esq., Member
David G.I. Stewart, Esq., Q.C., Member
Appearances:
Richard N. Clarke, Esq., Q.C.
Counsel for the Appellant
The Appellant
Constable Emms Innisfil Township Police Association
Raymond M. J. Werbicki, Esq.
Counsel for the Respondent
M. J. Pearson, Chief of Police
Innisfil Township Police Force
Staff Sergeant Allan G. Martin
Innisfil Township Police Force
Date: Thursday, 6th November, 1986
John P. MacBeth, Q.C., Vice Chairman
Constable Bryan Galloway was charged with three offences:
Neglect of Duty that is to say that you did leave an area without due permission or sufficient cause contrary to Section l(c)(iii) of the Schedule Code of Offences of Ontario, Regulation 791/80 made in pursuance of the Police Act of Ontario, and thereby commit a major offence.
STATEMENT OF PARTICULARS
On January 3rd, 1986, having been assigned to patrol Zone 2 and 3 as designated by Acting Sergeant Peacock, you did leave your area at approximately 8:45 - 9:00 PM and travelled to Essa Township and Tecumseth Township without due permission or sufficient cause.
- Deceit, that is to say that you did knowingly make a false statement in an official book contrary to Section l(d)(i) of the Schedule Code of Offences of Ontario, Regulation 791/80 made in pursuance of the Police Act of Ontario, and thereby commit a major offence.
STATEMENT OF PARTICULARS
During your tour of duty of January 3rd to January 4th, 1986 you did knowingly make a false statement in your notebook indicating that you were patrolling 25 Sideroad at 9:00 PM and Big Bay Point at 9:30 PM when you were actually in Essa Township and Tecumseth Township.
- Insubordination, that is to say that you did without lawful excuse neglect to carry out a lawful order contrary to Section l(b)(ii) 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 major offence.
STATEMENT OF PARTICULARS
On January 17th, 1986, having been directed by Acting Sergeant Walter Peacock to submit a comprehensive report outlining your activities commencing at 1900 hours, January 3rd, 1986 to 0730 hours, January 4th 1986 to be submitted by 1700 hours January 18th, 1986 did fail to submit a comprehensive report as directed, thereby disobeying a lawful order.
Constable Galloway pleaded not guilty to all three charges. They were heard before M. J. Pearson, Chief of Police for the Township of Innisfil on the llth April, 1986. Constable Galloway was found guilty of all three offences on the 17th April, 1986. The penalty for all three offences was the same. He was required to resign and in default of resigning within seven days, to be summarily dismissed from the force.
On the 10th June, 1986, the Board of Commissioners of Police for the Township of Innisfil confirmed all three convictions and upheld the penalty imposed.
Under date of 3rd July, 1986, the Constable appealed all three convictions and penalty to this Commission.
The grounds of appeal were as follows:
THAT the Board of Commissioners of Police for the Township of Innisfil erred in not giving the appellant notice of the hearing of his appeal before that Board and the opportunity to make submissions to that Board, and thereby failed to comply with its duty of fairness and the rules of natural justice;
THAT the said Board erred in failing to consider and give sufficient weight to the evidence contained in a complete record of the original hearing;
THAT the sentences imposed, and upheld by the said Board, are excessively harsh in the circumstances of this case, and that the said Board erred in tailing to consider this and give sufficient weight to it.
At the commencement ot the appeal hearing Mr. Clarke, Counsel for the appellant, stated that the appellant was abandoning the appeal of the convictions and was limiting the appeal to penalty only.
Mr. Clarke referred us to eleven decisions of this Commission from 1984 to 1986 in which penalties had been appealed. Most of the decisions confirmed the penalties imposed. However, most of the offences involved were for what we regard as more serious breaches of discipline than the offences which resulted in the present appeal. The penalties ranged from demotion to forfeiture of vacation days. For purposes of reference we cite the eleven cases referred to all being appeal decisions of this Commission.
Constable G.N. Boshold, Ontario Provincial Police 28th January, 1986
Sergeant William T. Johnson, City of Barrie Police Force, 20th February, 1985
Constable Daniel A. Overy, City of Sarnia Police Force, 21st February, 1985
Constable Charles Paul Graham, Ontario Provincial Police, 4th June, 1985
Constable Joseph Knickle, Metropolitan Toronto Police, 21st May, 1985
Constable Craig Andrus, Metropolitan Toronto Police 19th July, 1985
Corporal R. C. Crawford and Constable D. A. Fry, Ontario Provincial Police, 22nd October, 1985
Sergeant Anthony Robertson, City of Ottawa Police Force, 17th December, 1985
Constable Frederick Schofield, Metropolitan Toronto Police, llth September, 1984
Constable Robert A. Pollard, Ontario Provincial Police, 12th June, 1984
Constable Harry Harmer, Sarnia City Police Force, 26th February, 1982
We recognize that many police torces of this Province have established their own individual standards. Province wide uniformity of penalty is improbable even if it were desirable. We have not attempted to establish a uniform scale of penalty which would enable us to substitute our exact scale for the wisdom and experience of the hearing officer and his governing authority. Each force has its own peculiar problems and each set of circumstances is unique.
Section 24(9) of R.R.O. 791 authorizes this Commission to "vary the punishment imposed as it considers just".
There are many borderline cases where members of this Commission might impose a different penalty than that imposed by the hearing officer. This in itself does not create such an injustice to warrant the substitution of our ideas for that of the hearing officer. Where, however, the penalty imposed is markedly out of line with penalties applied by other forces under similar situations we believe we have a duty to change the penalty. We believe this to be such a case.
Constable Galloway has served the Innisfil Township Police Force for over ten years. There was no evidence of any prior charges under the Police Act or any detrimental documentation in his file. There were in his file three letters expressing appreciation for his services.
At the hearing Constable Galloway admitted to being out of his patrol zone. The other two charges arose from the first offence and, as so often happens, constituted more serious offences than the original. Mr. Clarke offered explanations or reasons for the subsequent offences which might ameliorate them. We do not accept the reasons nor excuse the officer's conduct.
The implication of Constable Galloway was that he had left his designated patrol area to gather information regarding a theft. He offered little evidence to support this. His notebook was unreliable and he showed no co-operation in helping to clarify his own activities.
The reason for allowing the appeal is based solely on our belief that the penalty of dismissal is too severe considering the service of the constable, the circumstances involved, and in comparison with the practice of other forces in the Province.
We therefore confirm the convictions and alter the penalty on all three charges to reduction in grade from first to second class constable for a period of twelve (12) months from the llth April, 19»6.
DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 9th day of March
John P. MacBeth, Q.C. Vice Chairman
Winfield C. Mckay Member
David G.I. Stewart, Q.C. Member