ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
Constable John M. Cleland Appellant
-and-
Kingston Police Force Respondent
DECISION
Panel: Frank Marc D'Andrea, Member Jean Margery Beauprie, Member
Hearing Date: January 26, 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: Frank Marc D'Andrea, Member Jean Margery Beauprie, Member
Appearances: Terence G. O'Hara, Counsel for the Appellant N. Jackson, Counsel for the Respondent
The appellant was charged with discreditable conduct in that he did on the 24th day of August, l987 at approximately 22:00 hours unlawfully exercise his authority in making an unlawful or unnecessary arrest contrary to Section l(g)(i) of the Code of Offences contained in the Schedule of Offences to Ontario Regulation 79l made under The Police Act Ontario.
The particulars of the offence are specified as follows: "on the 24th day of August, l987 at approximately 22:00 hours while on foot patrol in the area of Bagot and Princess Street, did arrest one Michael John Lavigne for Mischief and thereby it is alleged, make an unlawful arrest."
At a disciplinary hearing conducted under The Police Act, which hearing was presided over by Chief of Police, G.S. Rice, the appellant was found guilty as charged and was sentenced to dismissal from the force.
Both the conviction and the sentence were upheld by the Board of Commissioners of Police for the City of Kingston in a hearing held May 3lst, l988.
The Facts:
It would appear that there is little, if any, dispute in the facts of this case. Constable Cleland was on foot patrol at approximately l0:00 p.m. on the 24th day of August, l987 when he noted a truck with an enclosed cap parked next to the sidewalk outside of Thrifty's Drug Store. He observed a man who was adjacent to the truck and who appeared to be rummaging through the store's garbage which had been placed on the sidewalk for garbage pick up.
It should be noted that Constable Cleland did not know this man's identify but, having been on that foot patrol for two years, he was familiar with prior problems relating to the drug store's garbage. Those difficulties surrounded suspicions by the owners of the store that employees were placing goods from the store into the garbage for pickup by accomplices at night. In addition, Constable Cleland was aware of complaints by the store owner that their garbage was being strewn about after it was left for pickup and he was aware of the request that this activity be stopped.
Cleland walked to the parked truck and some conversation ensued between the man and Cleland. The person rummaging through the garbage was Michael John Lavigne; his wife and a small child were waiting for him in the truck. The Lavignes were in the process of building a cabin at Arden located some distance from Kingston. They would periodically make the trip to Kingston to purchase canned goods and provisions for winter. They had done so on August 24th, and at the time in question were searching for empty boxes in which to store the canned goods for the trip home. Cleland testified that he spoke first to Lavigne. On the other hand, Lavigne stated that he greeted Cleland with the words "good evening officer". Mr. Lavigne testified that the officer's response and attitude were abrupt. He asked Lavigne if he worked at Thrifty's and when Lavigne indicated he did not, he told Lavigne to put down the boxes. When Mr. Lavigne refused, he repeated the request.
Constable Cleland then asked Mr. Lavigne for identification but Lavigne refused because he felt it was none of the officer's business. Constable Cleland then arrested Mr. Lavigne for mischief whereupon Lavigne complied with Cleland's request that he identify himself. At this juncture, Mr. Lavigne called out to his wife to act as a witness and although it is unclear as to when, the officer either called Lavigne an "asshole" or uttered the word while making notes in his book.
After examining the identification tendered and recording the information, Cleland told Lavigne to leave. Lavigne refused until he was told whether he was still under arrest or not. Upon returning to his vehicle, Cleland asked Lavigne for the ownership to the truck and circled the truck to conduct an inspection of it.
Cleland pointed out that the truck's licence stickers were misplaced and that Lavigne was unable to produce a certificate of insurance whereupon Cleland served him with a requisite notice forwarding him the opportunity of producing a certificate. Lavigne attended at police headquarters whereupon he lodged a complaint respecting the officer's conduct.
Constable Cleland's version of the occurrence is not substantially different from that of Mr. Lavigne. In our respectful view, very little turns on a determination of the differences either in favour of Cleland or in favour of Lavigne. Even if all of the differences were resolved in favour of Constable Cleland, it is our view the result ought not to be different.
Issues:
Although the appellant's Notice of Appeal advances nine different grounds which are urged upon us, it would appear that the only issue is whether there was evidence before the Chief that the arrest was unlawful. The appellant's Notice of Appeal makes reference to "false" arrest but we believe the issue is the lawfulness or unlawfulness of the arrest in Cleland's exercise of his authority.
Section 450(l)(a) of the Criminal Code of Canada permits a police officer to arrest without warrant any person who that officer finds committing an indictable offence or who on reasonable or probable grounds, the officer believes has committed an indictable offence. Cleland testified that he was making the arrest for the purpose of establishing Lavigne's identity but that in any event, Lavigne was committing the offence of mischief. However, even if one accepts in total Cleland's version of Lavigne's activity, it can hardly be said either that the offence of mischief had been committed and if it had, it was not mischief of a specie that was punishable by indictment. It is clear that it was not lawful for Cleland to affect an arrest for the offence of mischief. It is equally clear and perhaps trite to indicate that a police officer has no lawful authority to make an arrest for the purpose of requiring the person to identify oneself. One is left to question not simply the lawfulness of the arrest but also the motivation that precipitated the arrest. In this regard we adopt the wording of Chief Rice on Page 2 in his reasons for judgement:
It is curious to note that other than approaching and having a brief exchange of words with Lavigne, Constable Cleland did nothing to establish whether or not an offence had been committed. He did not check the boxes that were put out as garbage to ascertain if they might contain store property or other contraband, nor did he check Thrifty Drugs to see if a break and enter had been attempted or committed.
In his words at trial and I paraphrase them, Constable Cleland stated that his sole reason for arresting Lavigne was to have him identify himself, that he knew there was no evidence to support a charge against Lavigne when he placed him under arrest and if he were faced with the same circumstances again, he would follow the same procedure in order to obtain the suspect's identity. In my view, it is fortunate that Lavigne co-operated and produced his identification immediately on being arrested, as one does not know at this time what Constable Cleland might have done if Lavigne refused to co-operate.
We can find no reason to disturb the finding of the hearing officer as to conviction and accordingly, we uphold the finding of guilt.
Penalty:
It was argued by counsel for the appellant that even if the arrest were found to be unlawful, it did not constitute a serious breach of a police officer's authority. It was argued that the arrest was made in minimal interference, for the purpose of obtaining identification and was not made for an oblique or an irrelevant motive and as such was just an honest error in judgement. Since almost no force was used even if the arrest were unlawful or unnecessary, it was not that type of action that would warrant dismissal.
The position taken by the appellant with respect to penalty might have gained favour if this incident were an isolated one and if this tribunal could be satisfied that rehabilitation of Constable Cleland were possible. We are not however so satisfied.
Examination of the personnel record of the appellant leads to the inescapable conclusion that the sentence of dismissal is right and appropriate given all of the circumstances. By his own admission, Cleland knew exactly what constituted a lawful arrest. By his own admission, Cleland admits that he was arresting Mr. Lavigne not for those limited purposes specified in the Criminal Code, but simply for the purpose of getting information as to Lavigne's identity. Cleland however, maintains that if he were confronted with the same set of circumstances again, that he would do nothing in a different way than he did on the evening of August 24th, l987. In our respectful view, Constable Cleland's problem is not one of a lack of knowledge of the law, but rather his problem is with attitude. The existence of that attitude is borne out by his personnel record, a review of which indicates that Cleland dislikes dealing with members of the public who have or who he perceives to have knowledge greater than his, and by his own admission he has a rather short temper especially when he is prevented from doing something he has started doing; that he has difficulty in telling the truth to his superiors, and that he does not accept discipline well. Indeed, as was pointed out by the trial officer, Constable Cleland had previously pleaded guilty to two very serious charges under the Police Act which in the view of the trial officer compromise the integrity of the Kingston Police Force in the administration of justice. Notwithstanding the penalty and the admonitions he received at that time, he again in August of l987, compromised the integrity of the police force and potentially brought the administration of policing into disrepute.
Hearing all of the considerations applicable to sentencing, viewing Cleland's record, and reading the reasons of the trial officer, we can see no reason to disturb his sentence of dismissal.
For the above reasons, the appeal is dismissed.
DATED THIS 6TH DAY OF APRIL, 1989.
W.D. Drinkwalter, Q.C., Chairman for Frank Marc D'Andrea and Jean Margery Beauprie.