ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF the Police Act, K.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 MICHAEL MOFFATT
Appellant
-and-
METROPOLITAN TORONTO POLICE
Respondent
DECISION
Panel: John P. MacBeth, Esq., Q.C., Vice Chairman
Winfield C. McKay, Esq., Member
Wendy Louise Calder, Member
Hearing Date: Thursday, 19th of March, 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:
John P. MacBeth, Esq., Q.C., Vice Chairman
Winfield C. McKay, Esq., Member
Wendy Louise Calder, Member
Appearances:
Robert b. McGee, Esq., Q.C.
Counsel for the Appellant
The Appellant
Katherine E. Hill, LL.B.
Counsel for the Respondent
The Metropolitan Toronto Police Force
Staff Inspector John Addison
Metropolitan Toronto Police
Date: Thursday, 19th of March, 1987
John P. MacBeth, Q.C., Vice Chairman
This is an appeal by Constable Michael Moffatt of the Metropolitan Toronto Police Force from conviction under Sec. l(i)(i) of the Schedule Code of Offences, Regulation 791 passed under the Police Act and from the penalty of the forfeiture of ten days off.
The charge was that of consuming liquor in a manner prejudicial to duty in that while on duty he was unfitfor duty through drinking intoxicating liquor contrary to Sec. l(i)(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 Major Offence.
The Statement of Particulars reads as follows:
Being a member of the Metropolitan Toronto Police Force attached to Number 52 Division, you, on Sunday, January 1st, 1984, were working the 11:30 p.m. - 7:30 a.m. relief. At about 11:30 p.m. you were paraded for duty by Sergeant Andrew Leach, 2588, 52 Division, and at this time were found to be neat, clean and fit for duty. At about 7:2 a.m. while in the Inspector's office at Number 52 Division, you were observed by Staff Sergeant Colin Woodcock, 175, and Sergeant Andrew Leach, 2588, both from Number 52 Division, to be unfit for duty through drinking intoxicating liquor
The matter came on for hearing before Superintendent Walter M. Tyrrell on the 25th of February, 1985 and continued with a number of adjournments with the decision being delivered on the 24th May, 1985.
Superintendent Tyrrell found Moffatt guilty of the offence and imposed a penalty of forfeiture of twelve (12) days off.
On the 30th May, 1985 the conviction and penalty were confirmed by Chief Jack Marks.
On the 10th April, 1986 the conviction was confirmed and the penalty reduced to forfeiture of 10 days off by the Board of Commissioners of Police of Metropolitan Toronto.
Under date of 9th May, 1986 the conviction and penalty were appealed to this Commission on the following grounds:
The presiding officer failed to consider evidence
which pointed to the innocence of Police Constable
Moffatt.
- The presiding officer improperly assessed evidence
of a fitness for duty.
- In the alternative the sentence of 10 days forfeited
imposed by the Toronto Board of Commissioners of
Police was unduly excessive and harsh in all the
circumstances.
The evidence presented in this hearing was lengthy and we believe much of it irrelevant to this particular charge. It dealt with such matters as whether New Years Eve 1983-1984 was busier than usual in City Hall Square and on Yonge Street, why Constable Moffatt was out of radio contact for long periods of time, in what position he placed his brief case when filling out reports, whether he had or had not been in company with another Constable at the end of his shitt.
It appears to us that the issue is whether or not Constable Moffatt had consumed liquor and was unfit tor duty.
At page 7 of the transcript of evidence we have the testimony of Staff Sergeant Leach who paraded the night relief on the 31st December, 1983. He states "One of the officers I paraded at 11:30 p.m. was the Officer before us, P.C. Moffatt. I paraded him at the Sergeants' counter, which is on the ground floor at the east end of 52 Division. At that time I gave him his duties and inspected him. He was neat, tidy, clean and there was no odour of any alcoholic beverage on his breath. I gave him his duties."
Subsequently at approximately 7:20 a.m. on 1 January, 1984 when Staff Sergeant Leach confronted Constable Moffatt on Simcoe Street outside 52 Division he is recorded at page 10 of the evidence as follows, "At this time we were both standing facing one another, fairly close, and I noticed there was an odour of alcohol on his breath. His eyes were dilated and bloodshot. I advised him of my suspicion that he had alcohol in his body. He said, "I haven't been drinking. I don't know what this is all about."
There is other evidence of the drinking of alcohol by Constable Moffatt.
Staff Sergeant Woodcock in cross-examination at page 42 of the transcript, "There's no doubt in ray mind that the odour that I smelled from P.C. Moffatt was coming from his breath. I have no question about that whatsoever."
Inspector John Duncan in examination-in-chief at page 51 of the transcript when asked how many feet between himself and Constable Moffatt replied as follows: "Approximately three to four feet. Again 1 noticed a very strong smell of an alcoholic beverage coming from the Officer's breath as he started to speak to me."
Constable Moffatt's defence was to the effect that during the course of duty he had had beer spilled on his uniform and this was the source of the alcoholic smell.
The first ground of appeal was to the effect that the presiding officer failed to consider evidence which pointed to the innocence of Constable Moffatt.
The decision of Superintendent Tyrrell makes specific references to Constable Moffatt's evidence. At page 425 of the transcript Superintendent Tyrrell states as follows: "For P.C. Motfatt's evidence to be accepted, an Inspector or Staff Sergeant and a Sergeant, would have to be either lying or sadly mistaken about their observations and that is the smell of alcohol on his breath, bloodshot eyes, dilated pupils and an agitated and belligerent manner”
We find no evidence that Superintendent Tyrrell did not fairly consider testimony that might point to the innocence of Constable Moffatt.
The issue is whether there was consumption of alcohol by Constable Moffatt and we find no reason for upsetting Superintendent Tyrrell's finding that there was.
Ground two of the appeal was that the presiding officer improperly addressed evidence of a fitness for duty.
In presenting this argument reference was made to a nonpublished Metropolitan Toronto case in which a P.C. Powell had been involved. Evidently there was an admission to having consumed an alcoholic beverage. The presiding officer found the officer unfit for duty on the basis that he had the odour of alcohol on his breath. Evidently the Board of Commissioners of Police did not find the odour in itself sufficient to sustain the conviction because it was successfully argued that the evidence of the officer's fitness or unfitness was limited to the opinion evidence of a Sergeant and Staff Sergeant and no factual basis had been led in evidence to support their opinions.
We do not have a copy of the Powell decision nor all the particulars of the case. However, the argument presented to us based on the Powell case was that the odour of alcohol from the breath of an officer is not in itself sufficient evidence to convict on a charge of Unfit for Duty.
In this case we have more than just the smell of alcohol on the breath, we have the bloodshot eyes, diluted pupils and an agitated and belligerent manner.
There is also the anomaly of presenting the appeal tribunal with precedent decision from the body from which the appeal arose. The assumption reasonably might be made that the Metropolitan Toronto Board of Commissioners of Police had made its own distinction between the two cases.
However in the opinion of this tribunal it takes only a reasonable degree of indication of alcohol consumption before a police officer on regular duty dealing directly with the public becomes unfit for duty.
It is recognized that Police Officers have a high standard of conduct to maintain. This is particularly so while on duty. A person charged with enforcing the law must be scrupulous in obeying the law. It is difficult to have public support for a police officer who while charging a citizen with a liquor offence himself gives evidence of liquor consumption
We therefore believe that the trial officer properly assessed the standard of fitness for duty.
We do not find the penalty of the days off as reduced by the Board of Commissioners of Police to be unreasonable.
We therefore dismiss the appeal and confirm the conviction and penalty.
DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 25th day of May A.D. 1987
John P. MacBeth, Q.C.
Vice Chairman
Winfield C. Mckay
Member
Wendy L. Calder
Member