Constable Richard R. Schram v. Ontario Provincial Police, 1988 CanLII 6673

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 RICHARD R. SCHRAM Appelant

-and-

ONTARIO PROVINCIAL POLICE Respondent

DECISION

Panel: Wendy L. Calder, Vice Chairman Winfield C. McKay, Esq., Member

Hearing Date: Wednesday, November 25th, 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, Vice Chairman Winfield C. McKay, Esq., Member

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

J. Brian Johnson, Esq., Q.C. Counsel for the Respondent

Inspector W. M. Wilkinson Inspector John Mitchell Ontario Provincial Police

Date: Wednesday, November 25th, 1987

- DECISION -

Winfield C. McKay, Member

1. Constable Schram was charged with discreditable conduct; that is to say

"in that you did act in a manner likely to bring discredit upon the reputation of the Ontario Provincial Police Force, contrary to section 1 (a)(i) of the Code of Offences contained in Regulation 791 made under the Police Act."

PARTICULARS:

Being a member of the Ontario Provincial Police Force, during the period January 30th, 1986 to April 4th, 1986 you caused Bell Canada to place tracing equipment on a telephone whose subscriber lived in Brampton. You failed to notify the local police authority and failed to properly conclude this investigation with Bell Canada, causing embarrassment to the Force and did thereby commit a major offence.

2. Constable Schram pleaded not guilty to the charge which was heard before Inspector A. M. Wilkinson of the O.P.P. Representing Constable Schram was W. Michael Temple, Q.C. The hearing was held Tuesday, July 18th, 1986 at 10:00 A.M. at No. 5 Headquarters.

3. Constable Schram was found guilty and was assessed a penalty of two weekly rest days.

4. Notice of appeal was filed with the Ontario Police Commission on the 21st July, 1986 with a copy to Commissioner R. A. Ferguson of the O.P.P.

5. The appeal was based on the grounds that the Staff Superintendent erred in failing to apply evidence that:-

(1) Training equipment could have been put in place by public request, and that the appellant was acting as a member of the public assisting a friend.

(2) The appellant felt further evidence was required to conclude the investigation and that he would then have notified the local police authority explaining a member of the public assisting a friend.

(3) Bell Canada was satisfied the investigation was eventually concluded.

(4) It was established that embarrassment was caused to the Force.

6. Mr. Temple spoke at length citing over a dozen sections of the July 8th transcript to support his appeal argument. He concluded by suggesting that the evidence did not appear to warrant the charge laid and that the conviction should be quashed.

7. Mr. Johnson in defence of the charge reviewed the events causing the charge in detail. He confirmed that in his opinion some embarrassment had been caused noting that a Bell employee had had occasion to complain about the procedure. He could not accept that Schram had acted as a private citizen and that he had relied on his status as a Police Constable which was not acceptable conduct. He felt it had been amply demonstrated that Constable Schram had failed to follow normal procedures as his supervisors were not notified or involved in any way. A twelve-year veteran should know proper protocol in such situations and that poor judgment had been exhibited he observed.

8. However Mr. Johnson also voice d concern that a major charge had been laid. He suggested that Constable Schram, though misguided, had acted in good faith and that it was a matter, perhaps, where internal discipline might have been applied, rather than charging Schram with a major offence.

9. After consideration of the July 18th transcript and the remarks of Mr. Temple and Mr. Johnson, we are of the opinion that Constable Schram did not act as a private citizen helping a friend. He was clearly identified by Bell personnel as a police officer and his actions caused them some irritation. We recognize that the O.P.P. and all Ontario police forces value highly their relations with major utilitites like Bell Canada. Naturally anything that would lessen or interfere with that relationship, such as the actions of Constable Schram, could not be looked on with other than disfavour by his Force. Nevertheless, we tend to agree with Mr. Johnson's perception that what happened did not demand a charge like "discreditable conduct." Any reflected discredit to the Force, if such it was, was restricted to a very few Bell Canada personnel and was certainly not of a public nature.

10. In our considered opinion a reprimand would have been appropriate but it is not within our realm of authority to replace one charge of the Police Act with another. In the circumstances the appeal is sustained and the charge is dismissed.

DATED at the City of Toronto in the Municipality of Metropolitan Toronto, this 15^TH day of January 1988

Wendy L.Calder Vice Chairman

Winfield C. McKay Member