Sergeant George Lalande v. Ottawa Police Force, 1988 CanLII 6676

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:

SERGEANT GEORGE LALANDE Appellant

-and-

OTTAWA POLICE FORCE Respondent

Decision

Panel: Mrs. Wendy L. Calder, Vice Chairman D.G.I. Stewart, Esq., Q.C., Member

Hearing Date: Tuesday, February 23rd, 1988 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: Mrs. Wendy L. Calder, Vice Chairman D.G.I. Stewart, Esq., Q.C., Member

Appearances: Barrie Chercover, Esq., Counsel for the Appellant Colin McKinnon, Esq. and Ronald Davidson, Esq., Counsel for the Respondent

Date: Tuesday, February 23rd, 1988

Decision

D.G.I. Stewart, Member

The Charge Sheet reads:

"You stand charged with Discreditable Conduct, in that you did act in a manner likely to bring discredit upon the reputation of the police force, contrary to Section l(a)(i) of the Schedule Code of Offences of Ontario, being Regulation 791/80 made pursuant to the provisions of the Police Act, R.S.O, 1980, Chapter 381, as amended, and did thereby commit a major offence."

STATEMENT OF PARTICULARS:

"In late 1981, while working in the Morality Squad, you became involved with one Denise Labelle, a woman known to you to be a prostitute and for five to six months carried on a sexual relationship with this person.

From late December, 1985, until approximately mid March 1986, you became involved with Betty Donnelly and Margaret Boal, persons known to you to be prostitutes, and carried on sexual relationships with both these females. Specifically, you had sexual relationships with Betty Donnelly and Margaret Boal at Betty Donnelly's residence on Riverside Drive.

You were discovered in a compromising situation by one Kamil Saikaley in that you had participated in sexual relations with Margaret Boal at the said Kamil Saikaley's apartment.

These actions constituted discreditable conduct in contravention of the Schedule Code of Offences made pursuant to the Police Act of Ontario and you knew that these actions, if discovered, were likely to bring discredit upon the reputation of the Ottawa Police Force."

1The trial took place before the Honourable Judge Hogg of the District Court of Ontario, May 14, 1987. The hearing lasted nine days, 20 witnesses were called, 40 exhibits were filed and over one thousand pages of transcribed testimony were recorded.

2The Honourable Judge found Sergeant Lalande guilty as charged and sentenced him to be required to resign from the Ottawa Police Force and in default of resigning within seven days, to be summarily dismissed from the force.

3The Notice of Appeal to us put forward 15 grounds of appeal as to conviction. Another six grounds were advanced as to sentence.

Background:

4Sergeant Lalande at the time of his hearing was 39 years of age and had been in the Ottawa Police Force for about 18 years. He had served five years in the patrol division, one year communication, two years in traffic and eight years in "morality" or "enforcement" as it is now known. He was promoted to Sergeant in 1981. Sergeant Lalande is a married man with three children.

5During his eight years in the morality squad his responsibilities included enforcement of the law in liquor violations, prostitution, gambling and illicit drugs. He was primarily assigned to duties in the lowertown market area as far as prostitution was concerned. This area was described by him as a hangout for call girls and prostitutes. This was the focus of his enforcement activities during that period.

6His enforcement technique required that he get to know some of the girls on the street because as he states "you'd have to gain their confidence into getting some information otherwise it was impossible to find out the location that most of the girls worked out of or the pimps who were working the girls on the streets". During the course of his encounters with prostitutes he met Margaret Boal, Betty Ann Donnelly and Teresa Glover.

The Evidence:

7THE EVIDENCE:

8The case against Sergeant Lalande was presented in the testimony of three prostitutes and a cab driver. One of the prostitutes, Betty Ann Donnelly, worked the market area. She met Lalande whom she knew to be a police officer. She gave him information. She stated that three years before December 1985 he came to her apartment where they had sexual intercourse. She further stated that she subsequently gave him "blow jobs" from time to time until December 1985. She states these acts occurred in a motel, in an alleyway, and other places she does not remember because of her consumption of alcohol at the time. She introduced Margaret Boal to Lalande.

9Kamil Saikaley, the manager of an arcade in the same area was, at the time of the hearing, a taxi driver. He stated that he saw Sergeant Lalande leaving Betty Donnelly's apartment with a kettle. When he went into his own apartment he saw Margaret Boal in bed naked. She said that she had just had sex with Lalande. This was in January 1986. Saikaley had let Margaret, who was without a home, stay at his apartment. He stated that he also found her and Sergeant Lalande in his apartment in bed together naked.

10Margaret Boal is eighteen years of age. She was a runaway who had turned to prostitution in the Byward Market area. She stated that she had sex with Sergeant Lalande At Saikali's apartment.

11Denise Labelle gave evidence at the trial. She said she knew Sergeant Lalande for six years. Her evidence was inconsistent with a statement she had given earlier. She denied an earlier statement to the effect that she had sexual relations with Lalande.

12Sergeant Lalande vigorously denied that he had sexual relations with Labelle, Donnelly or Boal. His testimony was that his relationship with them and others was professional. Any socializing he did with them was basically for the purpose of doing his job. Getting information. He denies any sexual encounters with any of them.

The Findings:

13His Honour Judge Hogg wrote an extensive Judgment and Decision on which we shall make further comment below. He states:

"As to the statement of particulars I find:

1. That the allegation contained in the first paragraph concerning Denise Labelle has not been proved.

2. In the second paragraph I find that the particulars concerning Betty Donnelly and Margaret Boal have been proved.

3. I find that the allegations in paragraph three concerning Kamil Saikaley and Margaret Boal have been provided."

14His Honour further found this to be discreditable conduct tending to bring the Ottawa Police Force into disrepute.

15The Notice of Appeal to this Commission sets out fifteen grounds of appeal of the decision and six grounds with respect to sentence.

16The main arguments presented to us may be summarized as follows:

1. The Charge Sheet is defective and should be quashed. Each allegation of misconduct is a separate matter. They should not be lumped together. The Police Act prescribes the technicalities of the Charge Sheet and should be adhered to.
2. There was undue restriction in the cross-examination of Betty Donnelly. Questions to her as to her knowledge of sexual relations with other officers of the force should have been permitted.
3. The prosecution was wrongly permitted to lead evidence from the witness Donnelly with respect to alleged sex acts before December 1985. This has the potential to cloud the issued.
4. Since the Judge did not sever the Charges and found one charge not proved the whole Charge Sheet must fail. A new trial should be ordered.
5. The penalty was too harsh. Similar cases do not impose dismissal.

17This tribunal has been presented with eleven volumes of transcribed testimony given at the hearing. Wide latitude was given to counsel with respect to examination, cross-examination and re-examination of each witness. Many points of law and evidence were grappled with during the hearing. From the transcript it would appear that the nature of the case, perhaps understandably, attracted wide media attention.

18The powers given to the Ontario Police Commission on an appeal are set out in Section 24(9) of Regulation 791 of the Police Act which reads as follows:

"(9) On the hearing of an appeal against a conviction or the punishment imposed, or both, the Commission may, (a) dismiss the appeal; (b) allow the appeal and quash the conviction and punishment imposed; (c) vary the punishment imposed as it considers just; (d) affirm the punishment imposed; (e) substitute a decision that in its opinion should have been reached; or (f) order a new hearing of the charge."

19In this case we have the benefit of an extensively written Judgment and Decision of the Honourable Judge Stanton Hogg. We will comment further on his findings. However we are still bound and able to consider freely all of the options afforded to us by Section 24(9). Indeed we have a duty to do so.

20The appeal was argued at length and we shall attempt to deal with some of the grounds argued:

1. The Charge Sheet:

Section 5 of Regulation 791 of the Police Act sets out in twelve subsections the essential elements of and procedure to be followed with regard to the Charge Sheet. These have been the subject of comment by the courts and this tribunal over the years. The appellant contends that the charge sheet before us offends the provisions of subsection eight which states:

"(8) Each charge in the charge sheet shall, (a) allege one offence only; and (b) be divided into two parts as follows;

1. A statement of the offence with which the accused is charged.
2. A statement of the particulars of the act, omission, conduct, disorder or neglect constituting the offence."

21The appellant argues that the Charge Sheet sets out three separate allegations: 1. "in late 1981...." 2. "From late December 1985...." 3. "You were discovered in a compromising situation...." These are three separate offences not one. This, therefore, contravenes the provisions of Section (8)(a) of Regulation 791

22The question is, firstly, whether the Act requires these formalities. Were they applied here? If not, is that failure fatal to the whole proceeding.

23We are referred to the case of re Henderson and the Board of Commissioners of Police of the City of Sarnia 1984 CanLII 1982 (ON HCJ), 1984 45 O.R.(2d) 680. This is an appeal to the Divisional Court from an Ontario Police Commission appeal. One issue raised was that there was no evidence to show that the inspector who signed the Charge Sheet was authorized to do so by the Chief of Police as required by R.R.O. 1980 Reg. 791, s.3. The Court of Appeal found the charge was valid on its fact because the Charge Sheet contained the words "Authorized signing Officer".

24Other cases referred to us dealt with discipline hearings in the dental, medical and legal professions. Two of which are appeals to the Divisional Court. While we do not think these cases are factually relevant, they state the principles which should govern.

25To quote from Stevens and Law Society of Upper Canada 1979 CanLII 1749 (ON HCJ), 55 O.R.(2d) 405 at page 409: "The charges brought against a professional person by his governing body should not, in most cases, be approached as though they were counts in an indictment alleging that he committed an offence or offences contrary to the Criminal Code. The essence of the discipline hearing will be to determine whether or not there has been professional misconduct." We have no difficulty in apply this principle to a discipline hearing under the Police Act.

26In the case of Kupeyan v. Royal College of Dental Surgeons of Ontario 1982 CanLII 1966 (ON HCJ), 37 O.R.(2d) 737 Anderson J. at 748 states: "The power to discipline their members, which is conferred upon the self governing professions, is a very great one, involving as it does potential loss of professional standing, pecuniary loss and, indeed, loss of the very right to pursue practice of the profession. While reasonable latitude is to be allowed as to matters of form and procedure in the exercise of such powers by tribunals which are administrative in nature and are not courts, there must be no room for doubt that the power to discipline is exercised within the terms and upon the conditions of the statute by which it is conferred."

27A closer examination of Section 5 of Regulation 791 anticipates some leeway we believe in the preparation of the Charge Sheet.

28Subsection (4) reads "All charges shall, where practicable, be included in one charge sheet, but where it is considered desirable the charges may be recorded in separate charge sheets."

29The word "may" indicates that a discretion resides in the draftsman of the Charge Sheet. Here, for some reason, all three "charges" are in one Charge Sheet. We find that in this case we are dealing with a matter of formality not substance. Sergeant Lalande was given a clear indication of the allegations against him. The particulars are sufficient for him to prepare his defense. We therefore find that the Charge Sheet is not defective.

[30] 2. Restriction of Cross-examination During the cross-examination of Betty Donnelly counsel for Sergeant Lalande Mr. M. Edelson proposed to ask her about sexual relationships with other officers. He proposed to then call the officers to admit or deny any such accusations. The object was to test her credibility and further show that her motive was revenge against Lalande. Mr. Edelson argues to page 32 Vol II of the transcript: "Now, if she had sexual relationships with a plethora of other police officers and isn't complaining about them, Your Honour can define clearly what her motive is, it's revenge against this officer, who denies it ever took place, and they would come to court, I expect, and deny it ever took place and show her to be a liar, as we submit she is."

31The Judge ruled that the question was not relevant. We agree. It seems to us that to permit such cross examination would open the door to collateral matters beyond the scope of the hearing.

32The other point of restriction on cross-examination was with reference to an edited statement which was to be put to the witness Labelle. It was speculated by the defence that the editing related to the names of other officers of the Ottawa Police Force. The statement was that of the witness. The Judge again ruled that the edited pages were irrelevant vis a vis that witness and this defendant. The appellant here argues that these are matters which should have been put to the witness. By not permitting cross-examination a major factor, the credibility of the witness, was not canvassed.

33We agree that there would appear to be some deprivation of the defendant's rights in this instance. We wonder, however, whether it goes far enough to suggest that the defendant was deprived of his right to make full answer and defense.

34Section 13(3) of Regulation 791 reads: "(3) The person charged is entitled to make his full answer and defence to the charge and, for such purpose, may examine and cross-examine witnesses and make representations on his behalf, either personally or by his counsel or agent."

35In any event, His Honour Judge Hogg found that Denise Labelle was an untruthful witness and dismissed that portion of the charge against Sergeant Lalande. At page 21 of the judgment transcript His Honour writes: "That answers that she gave and the general nature of her testimony goes to her credibility and can be considered along with other testimony as to whether she is a truthful witness. I have no hesitation in coming to the conclusion that she was an untruthful witness."

3. Prosecution Led Evidence as to Previous Alleged Sex Acts:

36When giving her evidence-in-chief Betty Donnelly stated that she had sexual relations with the defendant three summers before the dates of the alleged sex in the charge sheet particulars...The objection is made by the defence at the hearing to which the Judge responds "I'll take note of what you said". The damage was already done. There was not very much the Judge could do about it. His Honour does not refer to that part of the evidence in his judgment. There was other evidence for the judge to consider in relation to the charge. We do not think that slip alone is enough to warrant sending the matter back for a new trial.

4. The whole Charge Sheet fails because one part not proved:

As indicated above we have no difficulty in allowing the Charge Sheet to stand as it was drawn. It does not logically follow, however, that should one part fail all must fail. Parts of the charge sheet allegation were found by the judge to be proved.

5. Penalty:

The argument is made that this offence should not bring with it a dismissal. The whole matter has been blown out of all proportions submits the appellant. Only one and a half months of indiscretion is proved. We are referred to our own decision October 26th, 1987 in the case of Constable David Sloot of the Brantford Police Force. The penalty appealed from in that case was a reduction in rank from a first class constable to third. This amounted to a loss of some $8,340 per year from the officer's pay.

37The Sloot case had to do with the officer's failure to show up for duty. He failed to report on one day when specific duty, as part of a five day penalty, was assigned. His excuse was he forgot the date. We were of the opinion that in the circumstances of that case the penalty was too severe. We reduced the penalty to a forfeiture of seven days off.

38We think the elements in the case of Sergeant Lalande are vastly different from the considerations in the Sloot case. There can surely be no more appropriate case for a dismissal where the tribunal finds a police officer engaged in sexual relations with members of the public with whom he is supposed to have a professional relationship as an enforcement officer.

Conclusion:

39The trier of fact, in this case Judge Hogg, made a basic finding of credibility with respect to the witnesses before him. He observed them each over a total of nine days. He saw their demeanour under examination and exhaustive cross-examination by skilled and experienced counsel.

40His analysis of the evidence led him to find that there was no conspiracy between Donnelly, Boal and Saikaley to frame Lalande. He further finds the relationship of Sergeant Lalande to the prostitutes falls short of what would be expected. At page 18 of the Judgment transcript:

"Sergeant Lalande testified that he maintained a friendly relationship with both girls (Donnelly and Boal) in order to secure information and to use them as police informants. While I am satisfied that they passed on to him some information, it was not nearly enough as he would have this hearing believe. Filed by him to indicate Betty Donnelly's role as a police informant were two of three occurrence reports which concerned liquor offences and consisted of arrests related to, in one case, a case of beer, and in another matter, two bottles of rum. There was a lack of other documents or references of incidents to support the suggestion of substantial information in relation to criminal occurrences that these girls were supposed to have supplied......The relationship of the police officer far exceeded that of policeman and informant."

41In the matter of credibility the Judge made a clear finding in favour of the prosecution witnesses over that of Sergeant Lalande. This tribunal should only question that finding in very limited and special circumstances. Such do not exist here.

42We therefore accept the findings of fact of the learned Judge and concur with respect to conviction and sentence, We therefore dismiss the appeal.