Provincial Constable Robert Charles McCoy v. Ontario Provincial Police, 1989 CanLII 6720

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

PROVINCIAL CONSTABLE ROBERT CHARLES McCOY

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: Frank Marc D'Andrea, Member

Jean Margery Beauprie, Member

Hearing Date: March l6, 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:

Frank Marc D'Andrea, Member

Jean Margery Beauprie, Member

Appearances:

William M. Temple, Q.C., Counsel for the Appellant

John P. Zarudny, Counsel for the Respondent

Inspector B. Johnston, for the Ontario Provincial Police

Hearing Date: March l6, l989

1. Constable McCoy appeals from conviction and penaltyon a charge of acting in a manner likely to bring discreditupon the reputation of the force contrary to Section l(a)(i)of the Code of Offences under the Police Act.

2. The charge arises as a result of an allegation thaton August 9th, l986 Constable McCoy while off-duty took fromthe Sears store at 2900 Steeles Avenue East, in Markham,Ontario, a cribbage board and pegs without paying for them.

Facts:

3. On the date in question, Constable McCoy was observed by a part-time private investigator employed by Searsto pick up a cribbage board with a value of $7.99 and cribbagepegs with a value of 69 cents, to walk up and down several toyaisles with the board and the pegs, to enter into an emptyaisle, glance over his shoulder and place the board and pegsinto a Sears bag that he had been carrying. The investigatorfollowed the Constable as he left the toy department andtoured other departments all the while allegedly lookingaround him as though to determine if someone was watching him.

4. McCoy then left the store without paying for the merchandise.

5. He was then approached by the investigator and asked for thereturn of the merchandise and was asked to accompany theinvestigator to the store office.

6. There was evidence introduced at the trial that McCoy had been under a considerable amount of pressure at thetime of the occurrence. These pressures emanated from arelationship with a daughter who had run away from home andwho had alleged that her father had assaulted her in order toassist her mother, from whom McCoy had been divorced, to getsupport payments from him. The daughter eventually admittedlying to the police but the Crown nonetheless insisted onproceeding with the charge. McCoy's first court appearance onthe assault charge was August lst, l986. This instant occurrence took place on August 9th, l986. The Court heard the evidence of Dr. Lalani, a psychiatrist who had beentreating the appellant since August 27th, l986. His evidence was that McCoy at the time of the occurrence had beensuffering from a fair amount of psychological distress and inSears had experienced an overwhelming state of anxiety leadingto a state of preoccupation or absent-mindedness, which preoccupation could well have affected him in taking theboard. It was Dr. Lalani's opinion that McCoy did not intendto take the board and pegs without paying for them. In anyevent as we have indicated, the charges before the ProvincialCourt were dismissed.

7. The Appellant pleaded not guilty to the discreditable conduct charge but was found guilty by the ForceAdjudicator on February l7th, l987 and a penalty was imposedupon him of forfeiture of vacation leave of twenty days.

8. Constable McCoy has been a member of the OntarioProvincial Police since l970 and has been assigned to theintelligence branch since l982. He has no prior Police Actcharges.

Appeal from Conviction:

9. The hearing was conducted before Commissioner H.T.Garry, who gave very extensive and careful reason for hisdecision. We have examined those reasons carefully and wehave considered them in light of the submissions put before usby Mr. Temple. We are unable to find error in Commissioner Garry's decision to convict.

10. Mr. Temple urges upon us the psychiatric evidenceof Dr. Lalani as providing an excuse for the conduct ofConstable McCoy. The Appellant argues that the Commissionererred in failing to give sufficient weight to the opinionevidence of Dr. Lalani to the effect that Constable McCoy didnot realize that he had removed the items from the store until he was stopped after leaving the store premises. At the same time, the Appellant argues that since the Commissioner hadaccepted the evidence of Dr. Lalani for the purposes ofsentencing, he ought to have accepted Dr. Lalani's testimony in the test of determining guilt or innocence and in not soaccepting his testimony for that purpose, he committed anerror in law.

11. We are unable to accept this argument. This chargearises as a result of an allegation of discreditable conduct,which conduct consists of the taking of the cribbage board andpegs without paying for them. At its best, Dr. Lalani'stestimony can be no more than an explanation of McCoy'sconduct. We do not see it as a lawful excuse for that same conduct. We therefore find no error in the reasoning ofCommissioner Garry such as would compel us to overturn hisfindings.

12. Mr. Temple also urged upon us the argument that inregistering a conviction, the Commissioner was in effect re-trying Constable McCoy on a charge in respect of which he hadbeen acquitted in Provincial Court. Again, we point out thereasons for judgement of the Commissioner that the chargebefore him under the Police Act was one of discreditable conduct. In reviewing his reason, we are of the view that hecommitted no error and again can find no reason for disturbinghis findings.

13. For these reasons, the appeal from conviction isdismissed.

Appeal from Penalty:

14. We have also examined the reasons for decision of Commissioner Garry in respect of sentence and we find that hein fact did consider all the appropriate issues and all themitigating circumstances. This consideration is as follows:

"The Tribunal is influenced by the quality of theperformance evaluation that had been provided inevidence, and I would comment that discipline is apositive approach for really motivating officers tocomply with force policy and regulations. We have no evidence before the Tribunal that Constable McCoyhas been involved in any disciplinary problems withthe force during his approximate fifteen or moreyears service, but it is important that policeofficers disclose a respect for the laws which theyperiodically, by the nature of their profession,must enforce; there is also little doubt that thetestimony of Dr. Lalani was considered as an explanation for the conduct exhibited by ConstableMcCoy. Indeed, the Tribunal accepted the fact thatstress played a significant role in the taking ofthe merchandise and the evidence of Dr. Lalani that such a taking could occur when a person is understressful situations."

15. The Commissioner also correctly points out that hadit not been for the unblemished record and had it not been for the evidence of Dr. Lalani, "the Tribunal would have had norecourse but to recommend dismissal from the force".

16. We therefore can find no reason for disturbing thesentence imposed by the Tribunal.

17. In summary both the Appeal from conviction and fromsentence are hereby dismissed.

DATED THIS 28TH DAY OF APRIL, 1989.

W.D. Drinkwalter, Q.C., Chairman for Frank D'Andrea and Jean Beauprie.