Constable Michael Wright v. Metropolitan Toronto Police Force, 1989 CanLII 6719

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended

BETWEEN:

CONSTABLE MICHAEL WRIGHT

Appellant

-and-

METROPOLITAN TORONTO POLICE FORCE

Respondent

DECISION

Panel: W.D. Drinkwalter, Q.C., Chairman Frank Marc D'Andrea

Hearing Date: May l9, l989

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

Appearances: Ian Roland for the Appellant Fiona Campbell Provincial Constable Michael Wright Colin Ewing representing the Metropolitan Toronto Police Association James Anderson appearing for the Board and the Force

Hearing Date: May l9, l989

1. During the hearing of this appeal two questions oflaw arose; we would like to deal with those before approaching the substance of the appeal. One issue was evidentiary, the other jurisdictional.

2. The appellant sought to call evidence pursuant toSection 24(6) of the Regulation. That Section provides:

(6) "The Commission shall decide the appealfrom the record but may, in specialcircumstances, hear such evidence as theCommission considers advisable."

3. The appellant sought to call evidence which had been called before the local board when the appealwas heard by that board. This application was based on thefact that because of some breakdown there is no transcriptavailable of proceedings on that appeal. We find that the absence of a transcript constitutes "special circumstances"within the meaning of the regulation. Accordingly we admitted that evidence.

4. The second branch of the application was to callevidence which had not been called previously and which dealtwith the conduct of the appellant between the time of the hearing of his appeal by the board and the time of thehearing before the Ontario Police Commission. We ruled that this evidence is not admissible and now give reasons for thatruling.

5. We note first that this is not an appeal by way oftrial de novo but rather we are directed to "decide the appeal from the record". The question then becomes whetherthe appellant has satisfied us that there are "specialcircumstances" which would justify us in hearing such evidence.

6. As we read Subsection 6 of Section 24 the thrust is that we are to determine the matter in light of what has beendone at the hearing and before the local board. We view our role as being that of reviewing what has been done by theHearing Officer and by the local board and not a mandate to consider the matter anew and substitute our view for that of the board or the Hearing Officer.

7. For the above reasons the Ontario Police Commission will hear evidence on an appeal only where we are satisfiedthat "special circumstances" exist sufficient to justify adeparture from the standard procedure. We are not so satisfied and accordingly refused to admit the evidence.

8. The second issue that arose was raised by theappellant with respect to penalty. The appellant argued thatthe Ontario Police Commission has jurisdiction to be creativewith respect to penalty and impose any penalty that to usseems just.

9. At trial before the Hearing Officer the penaltiesare limited to those prescribed in Section 20(2) of theRegulation. Section l9(5) provides that on an appeal beforethe board the board may "alter the punishment imposed as itconsiders just;". On appeal to the Ontario Police CommissionSection 24(9) provides that the Commission may "vary thepunishment imposed as it considers just;". This matter was initially raised by the Commission on its own motion in theappeal of Constable Spizziri, a member of the Ontario Provincial Police Force. That appeal was heard in Novemberof l988 and decision rendered January 3lst, l989.

10. The local board has jurisdiction to "alter" thepunishment and the Ontario Police Commission has jurisdictionto "vary" the punishment. We find no substance in the fact that different words are used with respect to the board onthe one hand and the Commission on the other. It appears tous that our jurisdiction is to modify the penalty as opposedto quashing the penalty and substituting something new. If we have jurisdiction to go beyond the penalties prescribedfor

the Hearing Officer then the Commission has a discretionlimited only by the words "considers just". We find it difficult to accept that the legislators would have intentionally provided such a broad discretion to an administrative tribunal.

11. We find that the range of penalties provided to aHearing Officer differs from the penalties commonly appliedin the labour relations field. For instance, there is nojurisdiction to suspend a police officer without pay for ashort period of time. The scheme of penalties is provided bySection 20(2) of the Regulation and is:

(a) Dismissal; or

(b) Be required to resign, and in default ofresigning in seven days, be summarilydismissed from the Force; or

(c) Reduction in rank or gradation of rank;or

(d) Forfeiture of leave or days off notexceeding 20 days; or

(e) Forfeiture of pay not exceeding fivedays' pay; or

(f) A reprimand, which may be imposed in lieuof or in addition to any other punishmentimposed."

12. The above scheme is designed specifically for police officers. We read it as conveying the message that ifone of the prescribed penalties, short of termination, isinsufficient then, with respect to police officers, theemployment relationship must be terminated. Worded another way: if the appropriate penalty is a fine in excess of fivedays' pay then the police officer ought to be dismissed, orat least given an opportunity to resign and then be dismissed.

13. It is our best judgement that the Ontario PoliceCommission does not have jurisdiction to go beyond thepenalties prescribed in the Regulation.

The Offences:

14. Constable Wright faced twenty-five charges of misconduct under the Code of Offences. He pleaded guilty toten of those charges and the others were withdrawn. Since the time of his conviction one of the offences to which he pleaded guilty has been referred to the public complaintssystem and accordingly we were invited not to deal with itpending the result of that procedure. We deal, therefore, with the remaining nine offences.

15. Six of the offences occurred in l984. They are:insubordination, four counts of neglect of duty and one countof deceit. In l986 there was a count of neglect of duty andone of discreditable conduct; in l987 one count of consumingliquor while on duty.

16. Constable Wright was, of course, convicted. The penalty imposed was an order that he resign within 7 days andupon failure of resignation that he be summarily dismissed.

Grounds of Appeal:

17. Constable Wright appeals from the penalty imposedon the following grounds:

18. The penalty was harsh and out of proportion to theoffences.

19. A reasonable joint submission of reduction in rank toSecond Class Constable for one year was rejected by thePresiding Officer.

20. The Presiding Officer failed to give adequate weight tothe appellant's substantial rehabilitation.

21. The Presiding Officer erred in attaching little or noweight to the medical reports which were relied upon bythe defence and prosecution in making their jointsubmission.

Reasons:

18. The initial group of charges was laid in l984.Proceedings were adjourned pending the outcome in the courtsof another unrelated matter involving other officers.

19. Constable Wright attributes most of his problem toalcoholism which became severe in l983-84 and was complicatedby a marriage breakdown.

20. At the time of trial Constable Wright had somethirteen years of service.

21. In l983 Constable Wright was convicted of a disciplinary offence and reduced in gradation of rank fromFirst Class to Second Class Constable. In considering thatincident the Presiding Officer had this to say: "In Julyl983 you appeared at this Tribunal before another superintendent with a service record of convictions probablyunequalled on this force, and were given the sentence ofreduction in rank from First to Second Class."

22. Constable Wright's service record includes fourteencommendations of which twelve are letters of appreciation; thirty-four misdemeanors commencing in l976, and six convictions for disciplinary matters commencing in l978 andterminating in l983.

23. The Constable's service record, together with theconvictions presently before us constitute compelling groundsto terminate his service to the force. The only question iswhether the alcoholism provides a sufficient mitigatingcircumstance to save his employment. Exhibit l in the proceedings is a report by Dr.Keith Travis, a Psychologist, dated May l987. The HearingOfficer quotes a portion of that report; "Tentatively itwould appear that the demands of the job exceed his ability." Exhibit Number 4 is a similar report filed by Dr. Keith that report as follows: The Hearing Officer quotes fromTravis and dated May l988."Since he is still very much in atransitional phase of his life it would be important torequire close supervision and tight accountability in thecoming year or so as he adjusts to work routines."

24. The rank of Constable is graduated from FourthClass to First Class. It may well be that Constable Wrightis capable of functioning adequately at Fourth Class or ThirdClass grade. To reduce him to such level would be to ignorethe purpose of such gradations. When one examines carefullythe scheme of gradation of the rank of constable as set outin Subsection 3 of Section 4 of Regulation 792 it is clear tous that the system is intended to create a training scheme.It is anticipated in the police service that one enters theservice at the rank of Fourth Class Constable and, whensuccessful, becomes a First Class Constable. Presentlybefore us is an officer of thirteen years experience who isnot capable of functioning at the level of a First ClassConstable.

25. Bearing in mind the above and, in particular,Constable Wright's service record we have examined carefullythe grounds of appeal as specified in the Notice of Appealand cannot agree with any of them. In our view there is onlyone appropriate penalty in this case and that is to offerConstable Wright the opportunity to resign and should he failto avail himself of that that he be dismissed.

For the above reasons the appeal is dismissed.

DATED THIS 27TH OF JULY, 1989.

______________________________________W.D. Drinkwalter, Q.C., Chairmanand Frank Marc D'Andrea