Constable Dennis Alexander v. Metropolitan Toronto Police Force, 1988 CanLII 7052

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 DENNIS ALEXANDER

Appellant

-AND-

METROPOLITAN TORONTO POLICE FORCE

Respondent

DECISION

Panel: Mrs. Wendy L. Calder, Vice Chairman

Dr. Reva Gerstein, Member

Mr. Winfield C. McKay, Member

Hearing Date: Tuesday, April 12th, 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

Dr. Reva Gerstein, Member

Mr. Winfield C. McKay, Member

Appearances: L. Gottheil, Esq.

Counsel for the Appellant

R. F. Parker, Esq.

Counsel for the Respondent

Date: Tuesday, April 12th, 1988

- DECISION -

Wendy L. Calder, Vice Chairman

1. This is an appeal by Constable Dennis Alexander of the Metropolitan Toronto Police Force from his penalty of dismissal on a major charge of "Discreditable Conduct", contrary to Section l(a) of the Code of Offences, Regulation 791, made under the Police Act.

The Statement of Particulars reads as follows:

2. Being a member of the Metropolitan Toronto Police Force attached to Number 33 Division, you, on Monday, November 15th, 1982 appeared in Provincial Court (Criminal Division), at the Town of Newmarket, Ontario, in the Judicial District of York Region, Ontario, before His Honour Judge D. A. Anderson, charged: that you, on or about the 27th day of November, 1980 at the Town of Richmond Hill, in the Judicial District of York Region, did assault Andrew Haak, a peace officer with intent to resist the arrest of yourself, contrary to Section 246(2)(b) of the Criminal Code. You pleaded not guilty as charged but were found guilty by His Honour Judge D. Anderson of the included offence of CommoN Assault.

3. Your actions were such that they were likely to bring discredit upon the force.

4. According to the transcript of the hearing before Superintendent Robert D. Fleming, Constable Alexander ha gone to the York Regional Police seeking their assistance in obtaining certain articles from his separated wife. They had been living apart for about a year at that time. Based on this request for assistance, a Detective Vittens had somehow obtained custody of most of the articles now being sought by Alexander and had asked Alexander to pick them up at the York Regional Police Station. Constable Alexander was not satisfied with Vittens1 actions – he wanted further police inquiries to be made. Not satisfied, Alexander appears to have decided that he would take matters into his own hands and drove to his separated wife's apartment with the intention of seizing the one remaining article of cheques. Alexander claims to have asked Detective Vittens to send the police to his wife's address. For whatever reason the police were not sent and Alexander entered his wife's residence clearly against her wishes. He took mail from his separated wife's hand. Alexander's wife asked him to leave, he did not, she called the police, they came, a struggle by the elevator over the handcuffing of Constable Alexander ensued and according to Judge D. A. Anderson, Alexander did assault Andrew Haak.

5. Constable Dennis Alexander's many past discipline charges and convictions before and after the assault charge were put into the record.

6. Mr. Gottheil, Counsel for the appellant put in submissions for appeal based on the gap effect, the jump effect and the issue of progressive discipline.

7. He further argued that the penalty of dismissal was outside of the range for similar offences and there was no justification for dismissal.

8. Counsel argued that later convictions after the assault charge should not be considered and quoted the criminal law principle that Alexander "was not warned" or "the accused was not put on warning".

9. It was submitted Constable Alexander was under a great deal of emotional stress due to a marriage breakdown.

10. Mr. Parker counsel for the respondent argued on behalf of the dismissal of Constable Alexander.

Reasons for Judgment

11. The Commission weighed very carefully all the evidence put before it.

12. With regard to the issue of progressive discipline, Constable Alexander had a number of appearances at the tribunal, some of which were close together both pre-gap in 1972 and 1974 and subsequently in 1981 were virtually every month, both at the division level and as Police Act Charges. It must be remembered it was the conviction of assault which constituted the Discreditable Conduct and even if there is a gap and jump, the Commission does not find any basis to overturn the sentence. We are talking about a major offence under the Police Act which is an entirely different field than the narrow technical field of industrial employees, nor is it a criminal matter.

13. The argument was presented that a central principle of sentencing law is that people are punished for a particular offence and not for whatever activity they may have engaged in after the offence was committed.

14. The Commission agrees but is upholding the dismissal based on the record before and up to, including the criminal charge of assault. The work record and charges after the offence only tell us about the attitude of an officer.

15. Mr. Gottheil presented a list of discipline cases having to do with discreditable conduct and the penalties imposed for those convictions. We had no discipline sheets, nor detailed reports, nor service records before us on the Schofield and Doria appeals. In our opinion every case is different and has to be looked at in light of the evidence produced in only the case put before the Commission.

16. Constable Alexander had clear warning that his behaviour was unacceptable for an officer of a Police Force. What else are admonitions, loss of days pay penalties and minor internal administration disciplinary charges for unless it is to warn a member of a police force that his or her behaviour is unacceptable and a plea on behalf of the administration for that officer to assess his or her attitude. Constable Alexander was warned yet when he did not receive satisfaction through the criminal justice system, in this circumstance the York Regional Police Force, he effectively took the law into his own hands, and assaulted an other police officer.

17. Constable Alexander was upset about his marriage. Staff Inspector Addison states on page 151 "now it's my submission that everybody in authority has done everything lawfully, legally and many other ways in an attempt to find out what causes Alexander to perform the way he does".

18. Alexander refused the advice of psychiatrists, refused treatment and nobody could force him to take treatment. Everything was done to attempt to alleviate the emotional stress Alexander felt he was under, but he would not accept any help from his superiors, his Association or his medical advisors.

19. Doctors Musisi and Cullen were of the opinion there was no evidence of psychosis or impaired judgment. The evidence showed no remorse by this Constable had ever been shown, only a general attitude of indifference.

20. Superintendent Fleming did not err in not considering the sufficiency of forfeiture of 20 days leave or gradation in rank as a penalty. He considered Constable Alexander was no longer capable of accepting the responsibilities that go with being a member of a police officer.

21. We accept the evidence showing that Constable Alexander was insulated from the police force, did not care for his work and most of all that discipline and all efforts made by various individuals on the Metropolitan Toronto Police Force, the Board of Commissioners of Police, the Police Association and other bodies to help proved to be negative.

22. We view the dismissal of Constable Alexander to be a very serious matter.

23. This is not a criminal tribunal, but a quasi-judicial Board dealing with discipline appeals under the Police Act. An officer accepts as a condition of employment the fact he/she is subject to discipline according to the Act.

24. However, because of the high standard of conduct a police officer must exhibit, and because of an unsatisfactory record indicating a pattern of behaviour which cannot be tolerated, and because an officer may be called upon in the cause of his/her duties to investigate domestic disputes and/or assaults, Constable Alexander has lost the ability to carry on effectively as a police officer.

25. The appeal is dismissed and the penalty of dismissal is upheld.

DATED at the City of Toronto in the Municipality of Metropolitan

Wendy 1, A!alder

Vice Chairman

Reva Gerste'iXi

Member

Winfield C. McKay

Member