ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE GRAHAM BROOKS
Appellant
-and-
DURHAM REGIONAL POLICE FORCE
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman Frank Marc D'Andrea, Member
Hearing Date: Friday, October 27, 1989
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, Q.C., Chairman Frank Marc D'Andrea, Member
Appearances: D.J.D. Sims with Supt. John Kay for the Police Force Frederick Rowell for the Appellant
Hearing Date: Friday, October 27, 1989
[1]. Constable Brooks was convicted of one count of corrupt practice and two counts of discreditable conduct. He was ordered to resign within seven days or to be dismissed.
[2]. Constable Brooks has appealed to this Commission. Section 25 of the Statutory Powers Procedures Act provides as follows:
"25(l) Unless it is expressly provided tothe contrary in the Act under which the proceedings arise, anappeal from a decision of a tribunal to a court or other appellate tribunal operates a stayin the matter except where thetribunal or court or other body towhich the appeal is taken otherwise orders."
[3]. This is an application on behalf of the DurhamRegional Police Force by which this Commission is asked tolift the stay which is automatically provided by Section 25quoted above.
[4]. Section 25 of the Statutory Powers Procedures Actgives this Commission a discretion to order that the statutory stay be lifted. The only question is whether thecase before us meets the criteria which would justify our soordering. Unfortunately, there are no previous decisions orguideposts which might assist us in determining what constitute the proper criteria.
The history of this matter is as follows:
[5]. The events giving rise to these charges occurred onAugust 30th, l986. On November 24th, l986 Constable Brookswas charged with the Police Act offences and suspended fromduty with pay. The criminal charges were laid at approximately the same time.
[6]. On March 23rd, l987, on an application for judicialreview, Constable Brooks was successful in obtaining a stayof the Police Act charges pending disposition of the criminalcharges.
[7]. In February l988 Constable Brooks was convicted oftwo criminal offences; in March l988 he was sentenced. The Crown appealed to the Court of Appeal and Constable Brookscross appealed.
[8]. In May l989 both the appeal and cross appeal weredismissed by the Court of Appeal.
[9]. On September 8th, l989 Constable Brooks was convicted of the Police Act offences and was ordered to resign within seven days or, failing that, be dismissed.this On September l4th, l989 Constable Brooks appealed to Commission.
[10]. Since there are no previous decisions on the properexercise of discretion under Section 25 of the StatutoryPowers Procedures Act, we had hoped that we might be able touse this application as an opportunity to spell out thecriteria which ought to guide the exercise of our discretionin such cases. We find, however, that the case before usdoes not provide us with that opportunity.
Decision:
[11]. We have come to the conclusion that this case is one in which we ought to exercise our discretion and to issuean order lifting the statutory stay. We have been compelledto this conclusion by a combination of factors no one ofwhich, standing alone, would necessarily constitute sufficient cause. The particular factors upon which we relyare as follows:
(1) Constable Brooks has been suspended from duty with paysince November l986. We are aware of the publicperception stemming from the fact that Constable Brookshas been suspended from duty with full pay for a periodof almost three years.
(2) While the charges under the Police Act were laid inNovember l986 the trial did not commence until September
l989. A portion of the delay in proceeding was becauseConstable Brooks obtained an order from the Divisional Court staying these proceedings pending the outcome ofthe criminal code proceedings. We make nothing of thefact that this delay was occasioned by an application onbehalf of the appellant himself. We consider only thefact of the delay.
(3) The appellant has been convicted of two criminal offences.
(4) One of the criminal convictions is obstruction of justice. This offence strikes at the very heart of thefunction of a police officer and is clearlydistinguishable from other criminal offences which arenot so serious in themselves and which do not strike so glaringly at the duties of a police officer.
(5) It is of concern to us that one of the convictions under the Police Act is "corrupt practice". This we view as being much more serious than many other breaches of thecode of offences.
(6) We note particularly that the penalty imposed by thehearing officer, the Honourable Judge Salhany, was anorder that Constable Brooks resign within seven days orbe dismissed. In our view there is a very cleardistinction to be made between the penalties of dismissal, or ordered resignation, on the one hand andthe other penalties specified in the regulation on theother hand.
[12]. Our decision is based on a combination of all of the above-noted factors.
[13]. For the above reasons we order that the statutorystay provided by Section 25 of the Statutory Powers Procedures Act be lifted.
DATED THIS 2ND OF NOVEMBER, 1989.
______________________________________W.D. Drinkwalter,
Q.C., Chairman
for himself and Frank Marc D'Andrea