ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
PROVINCIAL CONSTABLE C.P.B. GRAHAM
Appellant
-and-
ONTARIO PROVINCIAL POLICE
Respondent
DECISION
Panel: Normand Glaude, Member
Ruth Kathryn Corbett, Member
Hearing Date: Friday, November 3, 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:
Normand Glaude, Member
Ruth Kathryn Corbett, Member
Appearances:
W.M. Temple, Q.C., for the Appellant
D. Lepofsky and M. Stelmaszynsky for the O.P.P.
Inspector Bryon Brown of the O.P.P.
Hearing Date: Friday, November 3, l989
Provincial Constable Graham was charged with insubordination by word, act or demeanor, contrary to Section l(b)(i) of the Code of Offences contained in Regulation 79l made under the Police Act. The statement of particularsreads as follows:
On July 28th, l987 Provincial Constable Graham engaged a person whom he had stopped for a traffic offence in an unsolicited religious conversation in defiance of an Order by Superintendent H.E. Sparling on the l3th of September, l983.
The presiding Commissioner found the Constable guilty of the offence and imposed a penalty of forfeiture of four days pay.
The main grounds of the appeal are as follows:
That the presiding officer erred:
- In holding that the appellant engaged Robert Nemeth in
unsolicited religious conversation;
In holding that the conversation was a religious one;
In failing to take into account the fact that, in making
his complaint, Robert Nemeth was motivated by the hope of
having his speeding charged reduced or withdrawn;
- In holding that an Order had been issued by
Superintendent Sparling;
That any Order given was in contravention of Sections 2 and 15 of the Charter of Rights and Freedoms;
That the penalty was excessive.
With respect to the Charter argument, it was noted that the same issue was raised by the same appellant in a previous appeal from other charges. Accordingly, the Police Commission is prepared to note that the same issue is being raised on this appeal for the purposes of preserving the appellant's right to a further appeal to an appropriate court.
As well, it was conceded by the appellant that he had been issued an Order by Superintendent Sparling on
September l3th, l983 prohibiting him from engaging in unsolicited religious conversations.
The thrust of the appellant's submissions is that the appellant did not initiate the conversation, that the conversation should be viewed as idle conversation that touched on religion, but was not of the nature or substance that had been prohibited by the earlier Order.
As well, the appellant questions the complainant's motives in bringing this complaint and suggests that the complainant's version of the facts should not be believed.
Counsel for the appellant submitted a comprehensive written submission which carefully reviewed the evidence which was submitted at the hearing and which has been carefully reviewed by this Commission.
Counsel for the respondent, takes the position that the issue of the complainant's motive is quite irrelevant to this hearing. His submission is that the real issue is whether or not in point of fact, the appellant did engage in a conversation as is alleged.
Further, it is submitted on behalf of the respondent that taking into consideration the complainant's evidence and the police officer's evidence that, in fact, the conversation did take place, that it was contrary to the Order and that it did amount to a religious conversation with what essentially was a captive audience.
The facts in this case are relatively simple.
Mr. Robert Nemeth testified that on July 28th, l987 after having been stopped by Constable Graham, travelling 95 km in a 60 km zone allegedly told Mr. Nemeth "he then said to me at that time that he wouldn't just tell anybody, but he had chased the almighty dollar and then he found Jesus and God and stopped chasing the almighty dollar and was a Born Again Christian".
The complainant then went on to indicate that in response to his request to lower the speeding charge, Constable Graham told him "he had spoken to God and asked God three times what he should put down and God told him to put down 95 km/hr" and then proceeded to say that "God told him to charge me, but he and his wife would pray for my forgiveness and hope that my business would go well".
It is also interesting to note that the complainant also related the fact that Constable Graham admitted to him that he had been reprimanded by his superiors three times for talking to people about religion.
Counsel for the respondent has outlined in his memorandum of argument the other relevant portions of Mr. Nemeth's testimony.
Constable Graham admitted to making certain statements, more particularly dealing with the mention of chasing the almighty dollar and that he and his wife would pray for Mr. Nemeth's forgiveness.
In fact, Constable Graham for the large part admits to the statements attributed to him save and except that portion dealing with whether or not he had asked God three times as to what speed to put down on the ticket.
It is clear from the complainant's evidence that Constable Graham initiated the religious conversation.
It is, in our opinion, very clear that the conversation as related by the complainant did, in fact, take place.
We are also of the opinion that the conversation was an unsolicited one and that its content was clearly of a religious nature.
In assessing what weight to give to the evidence presented, we are mindful of the fact that the complainant may well have had a motive to fabricate or enhance the conversation.
We note, however, that a mention was made of the fact that Constable Graham had been disciplined on three other occasions. This fact could only have been obtained from Constable Graham.
Further, the question of a motive goes to the issue of credibility. It is clear that the lower Tribunal, having had the opportunity of hearing viva voce evidence from Mr. Nemeth, was in a very good position to assess the gentleman's credibility.
We, therefore, find that Constable Graham was, in fact, in breach of an Order issued to him by Superintendent Sparling and accordingly, his appeal is denied. With respect to sentencing, it has been suggested by Counsel for Constable Graham that the appropriate penalty is in the range of loss of vacation days.
We note that Constable Graham had, in fact, been
prohibited from carrying on this type of conversation by way of a direct Order from Superintendent Sparling on the l3th of September, l983.
On July lst, l985 Constable Graham engaged in activities and conversations which were directly in contravention of the above-noted Order, and was assessed a penalty of forfeiture of two vacation days.
We note that two years later on July 28th, l987 Constable Graham persists in breaching the outstanding Order.
While it is acknowledged that Provincial Constable Graham is a self-motivated and above average worker, this type of conduct is not acceptable for a police officer with the Ontario Provincial Police.
Accordingly, the appeal against the sentence is dismissed.
For the above reasons the appeals against conviction and penalty are dismissed.
DATED THIS 21ST DAT OF NOVEMBER, 1989.
W.D. Drinkwalter, Q.C., Chairman
for Normand Glaude and Ruth Corbett