Provincial Constables S.L. Steward and P.A. Lock v. The Ontario Provincial Police, 1988 CanLII 6679

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER of an appeal by Constables S.L. Steward and P.A. Lock following a police act hearing conducted by Commissioner R.M. Hodgson of the Ontario Provincial Police Force.

PROVINCIAL CONSTABLES S.L. STEWARD AND P.A. LOCK

Appellant

-and-

THE ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: W.D. Drinkwalter, Chairman Julio Menezes Jean Margery Beauprie

Hearing Date: November 22, 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

Presiding Members:

W.D. Drinkwalter, Chairman

Julio Menezes

Jean Margery Beauprie

Appearances:

1. W. Michael Temple, Q.C., for the Appellants John P. Zarudny for the Force

2. This hearing was held at the Commission Offices in Toronto on Tuesday, November 22, 1988.

3. The two appeals were heard together because each involves the same incident and the trials had been conducted together.

4. Each officer had been convicted of having arrested Avraham Candoff for the criminal offence of impaired driving without justification or sufficient cause. Constable Lock was penalized three days leave and Constable Steward two days leave.

The Facts:

5. On February 23, 1987 the officers returned to Pearson International Airport at Toronto from a Caribbean holiday. They hailed a taxi driven by Mr. Candoff and requested that he take them to the O.P.P. District Headquarters at Downsview. Constable Steward has testified that she smelled alcohol on the breath of Mr. Candoff. Both officers testified to erratic driving during the trip of approximately 10 km. They testified that Mr. Candoff's eyes appeared glassy and droopy; that he appeared confused; and that he was somewhat unsteady on his feet. Upon arrival at their destination the officers placed Mr. Candoff under arrest and escorted him, one holding each arm, into the building where they turned him over to other police officers who were on duty. The officers who then dealt with Mr. Candoff found no evidence of impairment and were of the opinion that there was not sufficient evidence to justify a demand for a breath test. In spite of that, Mr. Candoff insisted on a breath analysis which was done with negative results. Mr. Candoff was served with an Offence Notice for the offence of careless driving. Subsequently he appeared in Provincial Offences Court and was convicted and fined the sum of $200 by a Justice of the Peace. It may be worth noting that Mr. Candoff was not represented on that proceeding.

The Issue:

6. This case boils down to a clear issue of credibility. If the Hearing Officer believed Mr. Candoff the officers are clearly guilty as charged; if he believed the two officers, without reservation, they ought to be acquitted.

Grounds of Appeal:

1. The Presiding Officer erred in failing to hold that the officers had good and sufficient cause to justify the arrest.

2. The Presiding Officer failed to give sufficient weight to the opinion evidence of the breathalyzer technician to the effect that a zero reading does not necessarily mean that driving ability is not impaired.

3. The Presiding Officer failed to take into account and give sufficient weight to the previous experience of the officers in investigating impaired and dangerous driving cases.

Decision:

The issue of credibility cannot be determined without hearing and watching each witness which, of course, we did not have the opportunity to do. We are satisfied that there was ample evidence before the Hearing Officer on which he could find against the officers on the issue of credibility and accordingly we sustain his finding of guilt.

Penalty:

7. We question whether the penalties imposed by the Hearing Officer are sufficient to deter these individuals in future but more particularly whether those penalties are sufficient to send the appropriate message to other members of the Force. Section 24(9) of Regulation 791 gives the Commission jurisdiction to "vary the punishment imposed as it considers just;". We very seriously considered increasing the penalties in these two cases but refrain from doing so because Counsel for the Force had advised Counsel for the appellants that he would not be seeking any increase in penalty. We wish to make it clear that the Commission does not consider itself bound by Counsel in the exercise of its jurisdiction and in appropriate cases we are prepared to increase penalties.

8. For the above reasons, we confirm the findings of the Hearing Officer and the penalties imposed by him.

DATED THIS 22nd DAY OF NOVEMBER, 1988