Sack v. Ontario Provincial Police, 1988 CanLII 6674

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 ERICH G. SACK Appellant

-and

ONTARIO PROVINCIAL POLICE Respondent

DECISION

Panel: Wendy L. Calder, Vice Chairman Reva Gerstein, Member David G.I. Stewart, Esq., Q.C., 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 Reva Gerstein, Member David G.I. Stewart, Esq., Q.C., Member

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

J.P.B. Johnson, Esq., Q.C. Counsel for the Respondent

Date: Wednesday, November 25th, 1987

DECISION

D.G.I. Stewart, Q.C.,

Background:

1Constable Sack was charged with Discreditable Conduct contrary to Section l(a)(i) of the Code of Offences contained in Regulation 791 of the Police Act.

The Statement of Particulars on the Charge Sheet reads:

On the morning of Wednesday, June 4th, 1986 while off duty you entered the Canadian Tire Corporation Store at 297 Muskoka Street North, Gravenhurst, Ontario. You took possession of a carton containing a Pulser radio cassette recorder priced at $249.99. You were observed removing the price sticker which you replaced with a price sticker from another item showing a price of $119.99. You approached the cashier where you recited an incorrect product number which enabled you to pay the lesser amount for the said radio. And did thereby commit a major offence.

2The case was heard before Staff Superintendent H.T. Carry. On March 16th, 1987 Constable Sack was found guilty. On April 9th, 1987 he was sentenced to be required to resign within seven days or in default of resigning to be summarily dismissed from the force. The conviction and sentence was confirmed by the Commissioner April 10, 1987. Constable Sack appeals his conviction and sentence to the Ontario Police Commission.

Facts:

3At the time of the hearing Erich Sack was 45 years of age, married with two children 19 and 24. He has been member of the O.P.P. for 21 years stationed all of that time at the Bracebridge Detachment. He had no previous charges under the Police Act. At the time of his sentencing 15 letters were filed. These all spoke highly of Constable Sack's trustworthiness and the high esteem in which he was held in the community.

4As a result of this incident he also was charged with fraud under the Criminal Code. On his plea of not guilty he was found guilty and was given a conditional Discharge and Probation for 8 months on March 10, 1987 by Provincial Court Judge L. S. Gieger.

5The evidence at the Police Act hearing included that of the store manager who swore that he saw Constable Sack changing price tickets on a stereo. The manager saw this through a one way window about fifteen feet from Erich Sack. He met officer Sack outside the store and stated that the officer offered to pay the price difference after the manager indicated that he was placing him under arrest for theft. The evidence of the cashier was that, because of the size of the item, she asked him to read her the price. He read her the lower price which corresponded to the sticker which he had placed on the box $119.99. The proper price for the radio was $249.99.

6Erich Sack's evidence was that he entered the store with the intention of purchasing a stereo from accumulated savings. He was on a cane due to a foot injury. He had taken some pain pills during the night and in the morning, a total of approximately 10 Tylenol. There was no suggestion that the medication affected his mental state at the time.

7Constable Sack admitted removing a price sticker from the stereo but explained that he believed the price on the sticker was wrong and referred to a price for paint. He stated that the proper sticker came off the box containing the stereo and he replaced the sticker. According to the store manager the sticker on the stereo was for another lesser priced radio and must have therefore been removed from the other item. Constable Sack denied this and stated that he had no intention of at any time defrauding the Canadian Tire Store.

8The hearing officer found that the explanation made by the officer did not stand up to the evidence offered by the store employees. On the balance of probabilities he found the offence had been committed.

9With regard to penalty Staff Sergeant Carry made the finding that this case involved the element of moral turpitude. He found that the facts do not "reflect that this action was spontaneous or impulsive, as has been Suggested, possibly brought on by medication that the member was taking at the time". In default of resigning in seven days he is to be dismissed from the force.

Arguments:

The appellant argues:

1. The Staff Superintendent erred in failing to give sufficient weight to the evidence of the Officer that he failed to realize that he had paid a lesser amount until just before he was stopped outside the store.
2. The tribunal erred in failing to accept the explanation given by Constable Sack.
3. With respect to penalty an error was made in failing to hold that he acted out of impulse and out of character.
4. The tribunal failed to take into account and give sufficient weight to his long service and his previously unblemished record. The penalty was too harsh in the circumstances and was greater than in other cases.

The Respondent argues:

1. The conduct of Erich Sack must be viewed in its context. He went into the store for a specific purpose. He had detailed knowledge of the merchandise and prices. His explanation must be viewed in the context of the fact that he was an informed consumer.
2. The admission that he scraped a sticker off the box containing the stereo is unusual. These stickers are usually tamper-proof. The evidence as to the crumpled sticker found later at Sack's residence was not consistent with what he stated.
3. The manager's evidence was corroborated by other proved facts whereas the evidence of Constable Sack was not. This was not a spontaneous act.
4. A police officer cannot engage in a single act of premeditated dishonesty. Such a single act should disqualify him from service. Dismissal is the proper penalty.

Decision:

10There can be no more difficult case before this tribunal than an appeal from a dismissal. An officer's livelihood is at stake. Erich Sack is a 21 year veteran of the Ontario Provincial Police. He has had no previous disciplinary offences in his career.

11Erich Sack is married, has two children and enjoys a good reputation in the community of Bracebridge where he lives. At his hearing 15 letters as to his public service and honesty are tendered on his behalf as evidence of his good character. His Docter writes "he has been a devoted family man and conscientious worker". Another citizen writes, "We have a lot of respect for Erich as a police officer and we know he does his job well". A local businessman states in a letter, "Erich had keys to my home plus many other homes in the area. He also had keys to my workshop which contains many valuable tools and-was trusted implicitly. Erich is a very honest, truthful and caring person who off duty, would never do anything dishonest".

12The authors of the letters were not called at the hearing. They were not therefore subject to crossexamination. On the other hand the contents of the letters were not disputed. Indeed, there was never any suggestion of anything in Constable Sack's reputation which would suggest dishonesty. We therefore find the letters describe Constable Sack's good reputation in the community.

13Based on the evidence of the witnesses we must also find that there is no reasonable explanation for his actions on this day in the store. They were clearly out of character. They were clearly foolish and indicated an intention to do a wrongful act with the presumed intention of saving money. We do therefore uphold the conviction of Erich Sack and dismiss his appeal with respect to the conviction.

14The matter of penalty poses the more serious problem. We have reviewed other cases involving dismissal from the force. In each case there is some element of moral turpitude, a bad record of previous offences or some act which indicates that the officer cannot, in the interests of the public and good policing, continue on the police force.

15In this case an officer, with intent, has unlawfully taken something from a store and is convicted of the crime of fraud. This comes very close to indicating thatthe officer, because of this one criminal act, cannot continue to carry out his duties.

16In the particular circumstances of this case, however, we are of the view that a dismissal is too severe a penalty. Some accord must be given to his previous 21 years of unblemished police duty. Furthermore, he is given the support of many members of his own community. He serves in this community and they are obviously willing to let him continue to serve them. The single act is unexplained and totally out of character. This officer should not be dismissed for a singular, stupid act of human frailty.

17A more suitable penalty is a loss of 20 days' pay and we therefore vary the penalty accordingly.