ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
Provincial Constable P.A. Godfrey
Appellant
-and-
Ontario Provincial Police
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman
Frank Marc D'Andrea, Member
Hearing Date: March l6, 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:
Wm. Temple, Q.C., for Appellant Provincial Constable P.A. Godfrey Michael Bader for the O.P.P. Inspector John Mitchell for the O.P.P.
Date: March l6, 1989
Constable Godfrey appeals from conviction and penalty on a charge of "unlawful or unnecessary exercise of authority in that you did without good and sufficient cause make an unnecessary arrest contrary to Section l(g)(i) of the Code of Offences ... ".
The charge arose as a result of a complaint following the stopping of a l978 Oldsmobile containing three young male occupants. The car had been seen by Provincial Constable Murray as it travelled north on Highway ll at an estimated speed of l60 km in a l00 km zone about ll:l5 p.m. on Thursday, July 23rd, l987. When the vehicle passed Constable Murray he was stopped beside the Highway and believes that the driver of the Oldsmobile ought to have seen his patrol car.
Constable Murray radioed ahead to Constable Godfrey who was about 4 km north facing east about l0 feet from the northbound passing lane. When the Oldsmobile passed Godfrey's parked patrol car, he estimates the speed at about l60 km an hour and indicates that the driver did not appear to see the patrol car because he did not alter speed. Godfrey followed the Oldsmobile and Murray through a construction zone about 3 km further north, and about 5 km past the construction zone. Godfrey passed Murray who was having engine trouble.
Approximately l0 km north of the construction zone a speed check on the Oldsmobile recorded a speed of l65 km in a l00 km zone over a distance of 200 meters. Constable Godfrey then activated his roof lights and the Oldsmobile pulled over onto the shoulder and stopped with the cruiser behind it. When the vehicle stopped, Constable Murray was still underway and would shortly be arriving at the scene.
Constable Godfrey had some concerns about the safety of the situation. The speed had been unusually high, and the distance from the time the vehicle was first observed had been unusually long. It appeared as though the driver did not see either stopped patrol car or if he had that he intended to evade the police. It appeared as though there were four persons in the car, although in fact there were only three, and the driver appeared to be fumbling with something on the front seat after he stopped on the shoulder of the road.
Godfrey shouted for the occupants to get out of the car; there was no response. The patrol car is equipped with a loud haler but for some reason Godfrey did not use it. After shouting again, Godfrey pulled his revolver and again shouted for the occupants to get out. The occupants, three teen©aged youths, gave evidence that after they were stopped they heard shouting but did not understand what was being said. When the instructions were repeated by Godfrey, the three occupants did get out of the car. The driver got out the left side and the two passengers on the right side. Two of the occupants saw Godfrey's revolver pointed in their general direction and all stated that he was angry and used obscene language when he ordered them out.
Godfrey instructed the three to put their hands on the roof of the car and then almost immediately told them to lie down on the ground. The two passengers were lying face down on the right side of the vehicle, the driver was on the left side of the car lying down but holding his body off the ground because, he said, he was wearing a white shirt. Godfrey pushed the driver down to the ground using his foot and in so doing the driver's glasses were scratched.
Constable Murray arrived on the scene about the time the occupants were leaving the vehicle; he parked hiscruiser in front of the Oldsmobile. Murray saw that Godfrey had his revolver drawn and he gave evidence that he put his hand on his revolver and may have pulled it out. Murray approached the passengers lying on the right side of the Oldsmobile, patted them down as a quick search, and then looked into the interior of the vehicle. At the same time Godfrey pat searched the driver after pushing him to the ground. He then brought the driver around to the right side of the Oldsmobile where the two passengers were standing up.
The driver was charged with speeding, l60 km per hour in a l00 km zone.
Appeal from Conviction:
The hearing was conducted before Superintendent R.H. Hodgson who gave very careful reasons for his decision. We have examined those reasons carefully and considered them in light of the submissions put before us by counsel and find no error in Superintendent Hodgson's decision to convict. The evidence amply supports his decision.
For these reasons the appeal from conviction is dismissed.
Appeal from Penalty:
The penalties which a hearing officer may impose are specified in Regulation 79l; these range from a reprimand to dismissal. Superintendent Hodgson considered the matter carefully and decided that the appropriate penalty was a fine and imposed a fine of the loss of two days pay.
We have examined the reasons for decision of Superintendent Hodgson and find that he did in fact consider all the appropriate issues and the mitigating circumstances. In this case there are some significant mitigating circumstances. The speed involved was unusually high; the distance travelled was unusually long; there was reason to suspect four persons in the car but at the time the vehicle stopped, only three could be seen. In addition to the foregoing, three members of the force had recently been shot in this part of the province in incidents relating to this highway. Two of those persons were fatally shot and one was wounded. One can understand Constable Godfrey's concern for his own safety, but the fact remains that he misinterpreted the speed, the fact that the driver did not notice the two patrol cars, and the distance involved.
In dealing with the public perception of the police service and the public's concern for police behaviour, the Superintendent had this to say:
"The public will not accept being taken out of cars with guns drawn every time a stop is made which may be dangerous. It's unfortunate but that's the way the law is so I have some sympathy for the officer in this case."
It is our view that the hearing officer did not give sufficient weight to the public's perception of such conduct. We find the conduct of Provincial Constable Godfrey awful.
Of the penalties available, the hearing officer selected a fine as being the most appropriate and we cannot disagree with that. We do find, however, that a fine of the loss of two days pay is insufficient under the circumstances. The conduct in our view, is more serious than such a penalty would indicate.
For the reasons above, we vary the penalty and impose a fine of the loss of five days pay (the maximum permitted by the regulation).
In summary, the appeal from conviction is dismissed; the appeal from penalty is dismissed and the penalty increased from the loss of two days pay to the loss of five days pay.
DATED THIS 22ND DAY OF MARCH, 1989.
W.D. Drinkwalter, Q.C., Chairman for himself and Frank Marc D'Andrea.