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 MARK WELCH
Appellant
-and-
METROPOLITAN TORONTO POLICE
Respondent
DECISION
Panel: John P. MacBeth, Esq., Q.C., Vice Chairman
David G.I. Stewart, Esq., Q.C., Member
Hearing Date: Monday, 8th December, 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
David G.I. Stewart, Esq., Q.C., Member
Appearances:
Barrie Chercover, Esq.
Counsel for the Appellant
M. Scott Watson, Esq.
Counsel for the Respondent
Staff Inspector J. Addison
Metropolitan Toronto Police
Date: Monday, 8th December, 1986
John P. MacBeth, Q.C., Vice Chairman
[1]. Constable Mark Welch was charged with Corrupt Practice in that he did improperly use his character and position as a member of the police force for private advantage contrary to Section l(f)(v) 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
Tuesday, January 18th, 1983, were working the 2nd
relief from 8:00 a.m. to 4:00 p.m. assigned to court
security. At about 2:27 p.m. and at about 2:30
p.m. you caused person query checks to be made on
one Linda Lomoro. At about 2:29 p.m. you caused a
person query check to be made on one Elizabeth
larusci and at about 2:31 p.m. you caused a further
check to be made on Linda Lomoro relative to
Criminal Record Synopsis - Criminal Name Index, said
queries being made through CPIC Terminal Number
ON30571 which is assigned to Number 52 Division.
On Thursday, January 20th, 1983, Linda Lomoro was
hired as a Molly Maid head Maid, and on Monday,
Feburary 7th, 1983, Elizabeth larusci was hired as a
Molly Maid Helper by a company known as Molly Maid,
you being the owner of said company.
You improperly used your character and position as a
member of the Police Force for private advantage in
using classified CPIC Terminal information tor other
than Police Force use.
[2]. The hearing of this matter took place over a number of days before Superintendent Robert D. Fleming with his finding of guilty and penalty of forfeiture of six days' off being dated the 10th November, 1983.
[3]. The conviction and penalty were confirmed by Chief John W. Ackroyd on the 15 November, 1983.
[4]. On appeal to the Board of Commissioners of Police for Metropolitan Toronto on the 19th December, 1985 the penalty of forfeiture of six days off was reduced to forfeiture of three days off.
[5]. On the hearing of the appeal to this Commission representations were made that a conviction for corrupt practices would suggest to those aware only of the charge and conviction that a more serious and reprehensible offence had occurred than the actual circumstances disclosed. Both parties agreed that an offence had been committed and the penalty was not an issue. Both parties requested this Commission to exercise the wide powers given it under Section 58(10) of Regulation 791, and under Section 4 of the Statutory Powers Procedure Act Chapt. 484, R.S.O. 1980.
[6]. While powers given under these sections are broad, whether or not they include the power to substitute a charge was not fully argued from an adversarial position since both parties were in agreement that a substitute should be made. Therefore this decision does not constitute a precedent for this Commission as to our powers to substitute a charge. However, we are satisfied that it is in the interest of justice to consent to an agreement which the parties have made and which is attached hereto as Appendix B of this Order.
[7]. Therefore this Commission orders as follows:-
- The conviction of Mark Welch for the offence of
Corrupt Practice, being count 1 on the charge sheet
dated May 25th, 1983 shall be quashed and set aside.
- In its place, Mark Welch shall be found guilty of
the offence of Insubordination, contrary to Section
l(b)(ii) of the Code of Offences in accordance with
the charge sheet attached hereto as Appendix A of
this order.
- The penalty for conviction for Insubordination as
aforesaid shall be forfeiture of three days off.
DATED at the City of Toronto in the Municipality of Metropolitan
Toronto, this 21st day of April, A.C. 1987
John P. Macbeth, Q.C.
Vice Member
David G.I. Stewart Q.C.
Member