Constable Brian Tkacz v. City of Ottawa Police Force, 1987 CanLII 6353

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 BRIAN TKACZ Appellant

-and-

CITY OF OTTAWA POLICE FORCE Respondent

DECISION

Panel: John P. MacBeth, Esq., Q.C., Vice-chairman Wednesday F. Jennifer Lynch, Member Winfield C. McKay, Esq., Member

Hearing Date: Wednesday, 8th of April, 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 F. Jennifer Lynch, Member Winfield C. McKay, Esq., Member

Appearances: Elizabeth Thomas Counsel for the Appellant

The Appellant

Adrian T. Hewitt, Esq., Q.C. Counsel for the Respondent

Date: Wednesday, 8th of April, 1987

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

1Constable Brian Tkacz was charged with discreditable conduct in that he was found guilty of indictable offences punishable under the Narcotic Control Act contrary to section 1(a)(vii) of the Schedule Code of Offences of Ontario, Regulation 791 of R.R.O., 1980 made in pursuance of the Police Act of Ontario, and did thereby commit a major offence.

2The Statement of Particulars reads as follows:

1. On April 25th, 1985 you were found guilty of trafficking in a narcotic to wit cocaine, 2.66. grams contrary to subsections 4(1) and 4(3) of the Narcotic Control Act. Judge Louis Phillipe Landry J.C.S. sentenced you to a period of 18 months in prison.

2. On April 25th, 1985 you were found guilty of possession of a narcotic: to wit 70 mg. of cocaine contrary to Section 3(1) and 3(2) of the Narcotic Control Act. Judge Louis Phillipe Landry J.C.S. Hull Quebec sentenced you to a period of 15 days in prison, to be served concurrently to charge Number one (1 jI .

3The matter came on for hearing before Superintendent Donald Lyon on the 15th May, 1986. Constable Tkacz pleaded "not guilty". He was found to be guilty as charged and was ordered dismissed from the Force.

4On review by Chief Arthur R. Rice on the 16th May, 1986 he confirmed the conviction and penalty

5The matter was then appealed to the Board of Commissioners of Police for the City of Ottawa and was heard by Board members David Hill, Mary Hegen and Robert Quinn on the 24th July, 1986. On the 18th of August, 1986 the Board of Commissioners of Police dismissed the appeal.

6The Notice of Appeal to this Commission is dated 2nd September, 1986. The appeal is against the conviction and the penalty.

7On the 25th April, 1985 Constable Tkacz was found guilty on two counts: one of possession of a narcotic, th other of traffic of a narcotic by a judge and jury at the City of Hull in the Province of Quebec. Subsequently Constable Tkacz appealed his conviction to the Quebec Court of Appeals. Counsel for Constable Tkacz placed before us a number of Court documents concerning the Quebec appeal.

8It would appear that for various reasons including the need to obtain further transcripts, and the withdrawal of Constable Tkacz's attorney for health reasons the hearing of the appeal has been delayed. A statement to this effect signed by E. Wayne Lora, Avocat, dated 2nd April, 1986 was one of the documents submitted to us by the Appellant's counsel.

9It was stated by Appellant's counsel that some transcripts had been ordered as recently as March, 1987

Section 26(3) of Regulation 791 reads as follows:

Where a constable or other police officer is convicted of an offence for which a term of imprisonment is imposed, he may, notwithstanding any appeal, be suspended without pay.

10On the basis of Constable Tkacz's conviction he was suspended without pay.

11The Respondent contends that there has been ample time for the matter to be heard by the Quebec Court of Appeal, that the delay is prejudicial to its position should the Quebec appeal be successful; and the force should not be obliged to carry on its complement, for such a period, a member who has been convicted of a narcotics offence.

12The Force is not a party to the Quebec appeal and has no voice in the conduct or progress of that appeal.

13Counsel for the Appellant ably presented her submissions which were as follows:

1. The hearing officer's discretion was improperly exercised; he erred in refusing to adjourn the hearing pending the outcome of the officer's appeal of the Criminal Code convictions to the Quebec Court of Appeal;

2. The Board of Commissioners of Police erred in not finding that the hearing officer erred in refusing an adjournment. S. 12 of the Regulations gives a right to adjourn; this should have been done and would have caused no undue prejudice to the plaintiff;

3. S. 26 of the Police Act is a suspension section, and suspension is the appropriate means of dealing with a police officer who is convicted of an offence for which he may be imprisoned. Similarly, she submits that it is appropriate to rely upon a principle which she asks us to draw from S. 27. S. 27 provides that no penalty should be imposed until all of the rights of appeal under the regulations are exhausted. She acknowledges that the instant case does not deal with this issue as the appeal to the Quebec Court of Appeal is of a conviction which of course falls outside of S. 27. We are asked to find that the intention of the legislation was that there be no punishment (that is, here, termination) until the matter upon which the decision is based (which, she submits, is the Appeal), is determined.

4. If in fact the conviction is changed then the whole basis for the decision is undermined; it is not fair to base a Police Act conviction on a conviction with an unresolved appeal pending, especially where the only evidence before the hearing officer was the certificate of conviction.

Further, if the conviction is overturned, the Appellant has no further right of appeal and no recourse.

5. The certified copy of the certificate of conviction was improperly before the hearing officer, having not been put in through the police officer. Consent, which could have been obtained pursuant to S. 14, was not obtained.

The Appellant requested that we allow the appeal, quash the conviction, and order a new hearing.

14Dealing with the latter technical submission first, we find that there was tacit consent from counsel of Tkacz to the admission of the certificate of conviction. Further we accept Mr. Hewitt's submission that S. 17 is not a full code of evidence and the certificate of conviction is admissible under the Ontario Evidence Act.

15We make the following further findings:

1. While on certain occasions tribunals have followed a practice of staying their own proceedings until criminal proceedings based on the same circumstances are completed, there is no obligation whatsoever on any tribunal drawing its power from the Police Act to do so. We find no evidence that the hearing officer improperly exercised his discretion or erred in refusing to adjourn the hearing. On the contrary, we find that to have required such an adjournment pending the outcome of the officer's appeal to the Quebec Court of Appeal would have caused undue prejudice to the police force. There having been a finding of guilt and a conviction, it is only the sentence which is delayed and a police force should have recourse and not be obliged to maintain on its complement a person convicted of such a serious offence.

2. With regard to the novel submission that we draw from Sections 26 and 27, an intention that suspension and not a penalty (termination) be the appropriate recourse here, counsel for the Appellant relied upon Re Gardner and Board of Commissioners of Police for the City of Cornwall 56 O.K. (2d) 189, submitting that while the issue is different here, the principle should apply: that no penalty should be imposed until the matter upon which the decision is based is determined.

With respect we cannot accept this submission. In Gardner the issue was whether a Board of Commissioners of Police decision to dismiss a police officer must be stayed, pending an appeal of that decision to the Ontario Police Commission, as provided under the Statutory Powers Procedure Act, R.S.O. 1980, c. 484 which provides, "unless it is expressly provided to the contrary in the Act under which the proceedings arise, an appeal from a decision of a tribunal to a court or other Appellate tribunal operates as a stay in the matter except where the tribunal ... otherwise orders." in that case it was held that the discharge should be stayed.

Here the "matter" upon which the hearing officer's decision was based has in fact been determined; that is, it is the conviction which is outstanding which operates.

16In short, the proceedings in the Quebec Court of Appeal, or any other proceedings or appeals, except those under the Police Act and except those from a decision of a tribunal under the Police Act to a court or other Appellate tribunal do not operate as a stay of the Police Act proceedings.

17We acknowledge that the whole basis for the decision of the hearing officer, based as it was on the certificate of conviction will of course be undermined if the Quebec Court. of Appeal allows the Appellant's appeal against his conviction. We hold that this is not unfair. The Appellant will have recourse in such a case, including a civil action similar to that of the plaintiffs in Crease et al v. Board of Commissioners of Police of the Municipality of Metropolitan Toronto et al, 39 O.K. (2d)

18In Crease , the plaintiffs, police officers, were convicted of conspiring to obstruct justice and were suspended without pay. The Court of Appeal overturned the conviction and the plaintiffs applied, inter alia, for salary and benefits for the period of the suspension. Upon motion to Mr. Justice Craig it was held that, by reason of the acquittal the plaintiffs had been adjudged not guilty of any crime or offence and therefore judgment went to the plaintiffs for salary and benefits for the period they were suspended without pay and damages for lost overtime advantages.

19We therefore dismiss this appeal and confirm the penalty imposed.