Constable Charles Paul B. Graham v. Ontario Provincial Police, 1987 CanLII 6349

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 CHARLES PAUL B. GRAHAM, #3372 Appellant

-and-

ONTARIO PROVINCIAL POLICE Respondent

DECISION

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

Hearing Date: Wednesday, 19th 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

Appearances:

W. Michael Temple, Esq., Q.C. Counsel for the Appellant The Appellant

David Lepofsky, Esq., Counsel tor the Respondent Ontario Provincial Police Assisted by Jason Gavras, Esq. Inspector A.M. Wilkinson Ontario Provincial Police Inspector J.P. Furlong Ontario Provincial Police

Date: Wednesday, 19th November, 1986

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

1Constable Graham was charged with Insubordination by word, act or demeanor, contrary to Section 1 (b)(i) ot the Code of Offences contained in Regulation 791 made under the Police Act.

2The Statement of Particulars reads as follows:

On 01 July, 1985 you involved Pauline Mathew, 10 Campbell Street, Lambeth, in unsolicited religious conversation and issued religious pamphlets to her in defiance of an order issued by Superintendent H. E. Sparling on 13 September, 1983. And did thereby commit a Minor offence.

3The matter came on for hearing on the 6th November, 1985 before Staff Superintendent H.T. Carry who found the Constable guilty of the offence and imposed a penalty of forfeiture of two vacation days.

4The conviction and penalty were reviewed and confirmed by the Commissioner on the 7th November, 1985.

5Although a Notice of Appeal of the decision dated 19th of November, 1985 was promptly served on the Commission there was a change by the appellant of counsel which resulted in delay in the matter being heard by this Commission.

6The main grounds of the appeal were; that an order had not been given to prohibit Constable Graham from engaging in unsolicited religious conversation; whether the conduct of the appellant amounted to defiance of an order and insubordination; and any order which might have been given was in contravention of Sections 2 and 15 of the Canadian Charter of Rights and Freedoms.

7The Attorneys General of Canada and Ontario were both served with a copy of the Notice of Constitutional Question and a copy of a reply was filed from the Toronto Regional Office of the Department of Justice of Canada advising that the Attorney General of Canada would not be intervening at this stage of the proceedings.

8From our review of the evidence we are satisfied that Constable Graham was ordered to cease and desist giving out further unsolicited religious advice, we are satisfied that he gave such advice by way of pamphlet and spoken word to Mrs. Pauline Mathew and was thereby insubordinate in disobeying a lawful order. It does not appear relative that Mrs. Mathew was not greatly upset over the matter, that she was or was not the person tor whom the advice and pamphlets were meant, nor that she was not the source of the complaint.

9Sections 2 and 15 of the Canadian Charter of Rights and Freedoms establish fundamental freedoms and equality rights for everyone. They are not absolute for one and negative for another. They are equal for all and therefore must be equally balanced. There is no power in one person to exercise rights or freedoms to the detraction of the rights and freedoms of another. In the matter before us there must be a reasonable balance amongst the rights of the officer, the rights of the Force and the rights of the public. When on the job you do the work your employer requires you to do and in the maner prescribed by the employer. This is a broad generalization and subject to limitations such as bargaining rights for working conditions.

10Counsel for the appellant made reference to the Canadian Charter of Rights and Freedoms opening recital recognizing the supremacy of God, to the part religion has and does play in our judicial system, the recmmendation that the Bible should be included in Force libraries and that the Salvation Army was recommended for assistance to victims of crime.

11We acknowledge the part society's basic religious background has to play in our justice system. However it must be accompanied by common sense and the balancing of rights of earlier comment.

12We do not find it a breach of the Canadian Charter of Rights and Freedoms nor of the Religious Freedom Act, Chapt. 447, R.S.O. for an employer to require an employee to refrain from conducting certain religious activities during working hours.

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