ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
Constable John B. Burgess
Appellant
-and-
St. Thomas Police Force
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman
Ruth K. Corbett, Member
Hearing Date: Tuesday, September l0th, l99l
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:
Jean Margery Beauprie, Member
Dr. Bette Stephenson, Member
Appearances:
T.D. Little, Esq., Counsel for the Appellant
Mrs. Kelly Schlemmer
A.H. Little, Q.C., Counsel for the St. Thomas Police Force
Date: March l, l989
- Constable Burgess appeals his conviction and the penalty imposed following a trial on two counts of breaching the Code of Discipline.
The Charges:
Constable Burgess was charged " ... with deceit, that is to say you did knowingly, on or about the 11th day of October, l987, make and sign false statements in an official document. Contrary to Section l, Clause (d), Paragraph (i) of the Code of Offences ... and did thereby commit a major offence."
Constable Burgess was further charged " ... with unnecessary exercise of authority, that is to say that you did on or about October 11th, l987, use unnecessary violence to a prisoner, one William David Claypole, contrary to Section l, Clause (g), Paragraph (ii) of the Code of Offences ... and did thereby commit a major offence."
Both charges arise from the arrest of William David Claypole on the day in question and the subsequent reporting of that occurrence.
The history of proceedings following the occurrence is as follows:
1.Burgess was charged with aggravated assault under the Criminal Code and was discharged following a preliminary inquiry.
The Crown preferred an indictment with the consent of the Attorney General.
These charges under the Disciplinary Code were laid prior to trial on the above-mentioned indictment.
Constable Burgess was convicted of the charges under the Police Act and was dismissed.
5.Constable Burgess appealled to the Board of Commissioners of Police for the City of St. Thomas which Board confirmed the convictions and the penalties.
6.The charges under the Criminal Code were tried by a court composed of a judge and jury Constable Burgess was acquitted.
New Evidence:
The appellant seeks to aduce evidence which was not called at the original trial.
This evidence relates to the record of Constable Burgess' prior to the incident in question; an excerpt from the police manual relating to lodging prisoners in cells, and the fact that he was acquitted on a charge of aggravated assault and any lesser or included offence by a jury.
Counsel for the respondent argues that fresh evidence ought not to be admitted and that the Commission ought to decide the matter from the record only. He argues that we can overturn a conviction only where we find an error in procedure. He argues that the Commission cannot substitute its opinion for the findings of the trier of fact.
With respect, we disagree with the respondent's contentions. Section 24(6) of Regulation 79l clearly permits the Commission to hear further or other evidence.
With respect to penalty, the record of the officer prior to the incident in question is clearly relevant and if it has not been considered in the past, it ought to beconsidered now. We also find that the manual relating to lodging prisoners is highly relevant under the circumstances which will be spelled out later. With respect to the acquittal by a court of criminal jurisdiction we admit that evidence also; not to establish the fact of acquittal, however, but merely to establish the background with respect to the proceedings that lead up to today's hearing. The fact of acquittal we consider irrelevant; the test in a court of criminal jurisdiction is proof beyond a reasonable doubt and the test in these internal disciplinary matters is significantly less than that. In addition to that, the evidence called before the criminal court and the evidence called on these proceedings can also differ significantly. In other words, we find that the evidence of acquittal is admissible but relevant only to the extent that it gives us a full history of the matter.
As mentioned above, counsel for the respondent argues that we cannot substitute our view of the situation for the findings of the hearing officer. With this we agree in substance. Clearly we cannot substitute our opinion where that opinion may be affected by issues of credibility because we have not seen the witnesses giving evidence. The Commission could, however, make a finding based on new evidence which was not available to the hearing officer or based upon a finding that the verdict of the hearing officer is not supported by the evidence.
Grounds of Appeal:
The presiding officer misinterpreted the evidence in suggesting that Claypole fell backwards or that such a statement was included in Burgess' report.
The presiding officer made a finding of fact tht Burgess believed that only a complaint by Claypole would cause a force investigation. This finding was unsupported by the evidence.
The presiding officer placed no weight on and disregarded evidence that the proper procedure would have involved the booking of the two suspects to have been carried out by the officer in charge. Burgess performed this function himself because the shift was shorthanded.
The punishment is excessive.
Number Two - Unlawful or Unnecessary Exercise of Authority:
This charge relates to the application of force by Constable Burgess to the person of Claypole. It arises at the police station sometime after Claypole has been takeninto custody.
Claypole and his colleague had been arrested by Constable Burgess on information indicating that a few minutes prior to the arrest Claypole had kicked in a glass door or glass window at a pizza shop and that the other person was with him at the time. Both of these men were drunk, obnoxious, obstructionist, aggressive and verbally abusive
At the time of arrest Claypole had attempted to escape and was physically subdued by Burgess. When the two men were lying on the ground the officer handcuffed Claypole and following that it was necessary for two officers to struggle with Claypole in order to get him into the patrol car.
The condition of Claypole and his general behaviour as noted above, were further described by a medical doctor and a nurse who were called upon to treat his injury following the occurrence in question.
Upon arrival at the police station with two prisoners Constable Burgess took them both into a room where he attempted to complete a report. Claypole's colleague did not identify himself except by foolish names such as Tim Horton or Tiny Tim. Following this non co-operation, this prisoner was frisked and locked in a cell. Constable Burgess then interviewed Claypole. It is clear from the evidence that Constable Burgess intended to complete a report with respect to Claypole and then lock him in a cell while he spoke with Claypole's colleague. Following those interviews, Constable Burgess expected that the two men would be released by the officer in charge.
We have had the opportunity of viewing a videotape which was made in the room where the incident occurred. This videotape is, in some details, incomplete but, in our view, it adequately and accurately shows what occurred.
With the two men sitting at a desk, Constable Burgess asks Claypole to empty his pockets. Claypole refuses. Burgess becomes angry, slams the desk, reminds Claypole that he is under arrest and tells him that he will have to be searched before being secured in the cells. Claypole still refuses to co-operate. The videotape indicates that the application of force was this: Constable Burgess intends to have Claypole stand so that he can be searched. He places his hands on Claypole's body and attempts to lift him from the chair. By some means which is not readily apparent from the videotape, Claypole has attached himself to the chair and does not come off the chair when Burgess attempts to lift him. Burgess then braces himself firmly on the floor, takes a hold of Claypole again and with a mighty heave, removes him from the chair. Claypole has released the chair and, as Burgess later reported, became "limp". In any event, Claypole comes off the chair, both men lose their balance and both the officer and the prisoner were launched across the room rather like an unguided projectile. Claypole struck his head on something and was injured. The wound is a clean, L-shaped cut which probably occurred when his head struck some sharp object such as the corner of a door.
Following the above, Burgess reports the matter to the officer in charge and takes Claypole to the hospital where he assisted hospital personnel in controlling Claypole so that he could be treated.
From the above, there clearly was an intent to apply force to the person of Mr. Claypole. It is equally clear to us that there was no intent to injure or wound Mr. Claypole. The injury was accidental and unintended. The question to be determined is whether the application of force, in an attempt to get Claypole to his feet so he could be searched, constituted an unlawful or unnecessary exercise of authority by virtue of Constable Burgess using "unnecessary violence" to the prisoner.
Constable Burgess intended to place this prisoner in a cell while he spoke with the other prisoner. After interviewing the other prisoner, Constable Burgess might well want to re-interview Claypole. In our view he had authority to do that and having decided to do that, it clearly was necessary to search the prisoner. It would be extremely dangerous to lock an obnoxious drunk in a cell without knowing whether the drunk might be in possession of some instrument that he could use as a weapon to injure himself. Within the meaning of Section l, Clause (g), Paragraph (ii) the question becomes whether the exercise of that authority was "unnecessary" and whether the application of force to the prisoner becomes "unnecessary violence".
The word "unnecessary" as used in the section in question might mean "not absolutely essential" or it might mean "unreasonable under the circumstances". Clearly to place Claypole in the cell was not absolutely essential. It was essential that Claypole be detained at the station until the officer in charge had time to prepare the release documents. Because of the shortage of manpower, there was no one except Constable Burgess to guard the prisoner while the officer in charge was busy with other duties. (Burgess was going to be busy with the other prisoner). We find that the conduct in this sense was reasonable. Also, the attempt to force Claypole to his feet, while not absolutely essential, is nevertheless, under these circumstances, reasonable. We find that the word "unnecessary" as used in the section, does not mean "not absolutely essential" but rather means something closer to "unreasonable under the circumstances" considering the other options that were in fact available.
Considering all the circumstances we find the conduct of Constable Burgess to be reasonable under the circumstances and accordingly quash the conviction.
Before leaving this branch of the appeal however, there is one other matter on which we wish to comment. The appeal of Constable Burgess to the local Board of Commissioners of Police was decided by the Board on the record and without notice to Constable Burgess of the time and place when that consideration would occur. Constable Burgess was not invited to attend before the Board and present his argument.
The proceedings before a board are governed by Regulation 79l under the Police Act. That Regulation does not specifically require a hearing. In our view the rules of natural justice, however, require that a person who appeals a conviction or penalty imposed following a disciplinary proceeding under Regulation 79l ought to be given an opportunity to present the appeal either in person or with counsel, and for that reason we would quash the proceedings before the Board.
The Charge of Deceit:
- This count is based, in substance, on an Occurrence Report completed by Constable Burgess immediately following the incident in question. The report in question is as follows:
"Subject was assisted to his feet by this officer. Once on his feet subject became limp, and fell forward. Officer had a hold of his shoulders. Both officer and subject fell back towards the door of the breath room. Subject struck his head, front portion, on either the door or the doorknob.”
The statement that "subject was assisted to his feet" can be said to be incomplete and inaccurate. From watching the videotape it is clear to us that the officer was making a concerted effort to lift the subject to his feet. We note, however, that police officers are permitted to use such inaccurate and incomplete descriptions in Occurrence Reports. It frequently occurs that a prisoner is "assisted" into a police vehicle when in fact he has to be wrestled into the vehicle by two or three other policemen.
Constable Burgess says "once on his feet subject became limp and fell forward". It is clear that the prisoner did fall forward. It is also clear that in a real sense he "became limp". The inaccuracy in this statement is that it appears that the prisoner became limp before he was lifted from the chair and not after Constable Burgess had him free of the chair as would appear from the Occurrence Report. Given the situation, the atmosphere, and the fact that Constable Burgess braced himself expecting to have a "heavy lift" it is not unreasonable for him to believe that the prisoner did not become "limp" until sometime after he had been removed from the chair.
Constable Burgess further reports that "officer had a hold of his shoulders. Both officer and subject fell back towards the door of the breath room." Again this statement can be found to be incomplete and perhaps misleading.
The above-noted statements which constitute the heart of the charge of deceit can reasonably be said to be inaccurate and incomplete. It is a long mile, however, between the point at which one can find a statement inaccurate and the point at which one can find that a statement was made with intent to mislead or deceive.
It is our understanding that Occurrence Reports, such as the report filed by Constable Burgess, are used as, and intended to be, summaries of what occurred. There is in the police culture a significant difference between what is provided in an "Occurrence Report" and what is provided in a "will say" statement. The latter statement is intended as instructions to Crown Counsel and intended to outline the available evidence with accuracy and detail, the Occurrence Report is not.
We can find no evidence to support the finding of the hearing officer that statements made by Constable Burgess were made with intent to mislead or deceive and accordingly we quash that conviction.
Penalty:
- On each count it was ordered that Constable Burgess be dismissed. In view of our findings with respect to conviction, we find it unnecessary to deal with the appeal from penalty.
DATED THIS 22ND DAY OF MARCH, 1989.
W.D. Drinkwalter, Q.C., Chairman for Jean