Novakowski v. Ontario Provincial Police, 1987 CanLII 6351

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 GARY NOVAKOWSKI

SARNIA TOWNSHIP POLICE FORCE

Appellant

• and –

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: F. Jeniffer Lynch, Member

David G. I. Stewart, Esq., Q.C., Member

Hearing Date: Wednesday, October 21st, 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

Before:

Wendy L. Calder (Mrs.), Vice Chairman

Winfield C. McKay, Esq., Member

Appearances:

C. A. W. Bentley, Esq.

Counsel for the Appellant

The Appellant Robert Murray, Esq., Q.C.

Counsel for the Respondent

Chief Howard Schooley

Township of Sarnia Police Force

Date: Wednesday, October 21st, 1987

Wendy L. Calder, Vice Chairman

1Constable Novakowski was charged with Neglect of Duty without lawful excuse and neglect to promptly and diligently perform a duty as a member of the Police Force.

Sec . 1 (c) reads:-

Neglect of Duty, that is to say, if he,

(i) without lawful excuse, neglects or omits

promptly and diligently to perform a duty as a

member of the police force.

The Statement of Particulars reads as follows:

In so being a member of the Township of Sarnia

Police Force on the 10th day of January, 1986 did

fail to attend at the Provincial Court, 70U N.

Christina Street, Sarnia, Ontario at 10:00 a.m. as

required, to assist with the prosecution of Sean

FLEMING.

2The matter was heard before Chief H. C. Schooley on the 9th of July, 1986 when a conviction was made and penalty of an admonition given. The Sarnia Twp. Board of Commissioners concurred with the verdict.

3This is an appeal by Constable Gary Novakowski from the penalty imposed upon him of an admonition following his conviction on a charge of neglect of duty contrary to Sec. l(c)(i) of the Code of Offences contained in Reg. 791 of the Police Act.

4The evidence is that on December 19th, 1985, Mary Moore, Court Co-ordinator posted the trial list for January 1986, and at that time Constable Novakowski, Sergeant Brooker and Constable Stratton appeared as witnesses forSean Fleming as he was charged with possession ot a narcotic and failed to appear for Identification ot Criminals Act.

5At 9:45 on January 10th, 1986, Constable Stratton and Sergeant Brooker were observed in the Court Room bu Novakowski did not appear as a witness. He was not seen at the Provincial Court in Sarnia at all that day.

6On January 31st, 1986, Constable Novakowski submitted a written statement to Sergeant Black to provide him with relevant information about his absence from Court Duty.

7The appeal was based on the submission by Mr. Bentley that the Board of Commissioners of Sarnia Twp. erred in refusing to hold a voir dire and that they erred in holding that Sec. 7 ot the Canadian Charter ot Rights and Freedoms did not apply to a police discipline hearing.

8The Commission has examined the transcript of the original hearing, the decision of the Board, the Notice of Appeal and listened to argument by the Appellant's solicitor and the Board's solicitor. No argument was advanced which convinced the Commission that the presiding officer had wrongly assessed the evidence or that he had imposed a penalty which was unfair or harsh in the circumstances or that the Commission had erred in not taking Sec. 7 of the Canadian Charter of Rights and Freedoms into account.

9Mr. Bentley argued many cases to support his argument that the Board of Commissioners of Sarnia Twp. erred in refusing a voir dire with respect to Novakowski's statement and also that they erred in holding that Sec. 7 of the Canadian Charter of Rights and Freedoms did not apply to this police discipline hearing. Many cases were quoted to support his argument, Park vs the Queen, Erven vs the Queen, Ward vs the Queen, Horvath vs the Queen and Lavigne and Ontario Public Service Association. I make special reference to Trumbley and Fleming 1986 because this was the case frequently quoted and argued by Mr. Bentley. He suggested Sec. 7 of the Charter was different from Sec. 11, "life, liberty and security". And therefore, we should view his two reasons for appeal as valid.

10We considered the argument of both counsel and believe that a police discipline matter is a purely administrative internal process and not a criminal offence and thereby we do not agree that Sec. 7 of the Charter is applicable. The argument, although ingenious is misconceived and we take no affect of it.

11The police officer has voluntarily accepted a vocation entailing duties which are peculiar to it and essential to its proper performance, duties to which ordinary citizens are not subject.

12In light of the foregoing we dismiss this appeal and uphold the punishment.