Provincial Constable Frank Daulby v. Ontario Provincial Police, 1989 CanLII 6729

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

PROVINCIAL CONSTABLE FRANK DAULBY

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: Dr. Bette Stephenson, Member Julio Menezes, Member

Hearing Date: April 25, 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: Dr. Bette Stephenson, Member Julio Menezes, Member

Appearances: W. Michael Temple, Q.C., for the Appellant Michael Bader for the O.P.P. Inspector John Mitchell for the O.P.P.

Hearing Date: April 25, 1989

1. Provincial Constable Daulby was charged with Neglect of Duty for neglecting or omitting promptly and diligently to perform a duty as a member of the police force contrary to Section l(c)(i) of the Code of Offences, Regulation 79l, Schedule, Police Act, R.S.O. l980, C. 38l.

The charge was particularized as follows:

The appellant was charged with neglect of duty under the Police Act in that he did, on January 20th, l988 when he was required to attend a preliminary hearing held in Provincial Court (Criminal Division) at Guelph and tender fingerprint evidence against an accused charged with a criminal offence, fail to prepare the fingerprint comparison chart prior to his appearance that date, resulting in the matter not being able to proceed.

2. Provincial Constable Daulby was convicted of the charge and a penalty of admonition was imposed. He has appealed against the conviction and penalty.

Grounds of appeal:

The Presiding Officer erred:

1. In failing to grant the appellant's motion for a nonsuit.

2. In failing to take into account and give sufficient weight to evidence that the appellant offered a reasonable explanation for why the Fingerprint Comparison Chart had not been prepared.

3. In holding that the appellant had committed the offence of neglect of duty.

4. The background to this case extends to a break and enter that took place in Guelph on July 24th, l985. On July 30th of that year Provincial Constable Daulby located and successfully lifted fingerprints at the site of the crime. These were forwarded to the R.C.M.P. for a comparison with the prints they had on file. In l987 the fingerprints were identified by the R.C.M.P. as belonging to Michael James Fidler. The R.C.M.P. informed Provincial Constable Daulby who in turn relayed that information to the Guelph Detachment. The suspect was charged and pleaded not guilty. A Preliminary Hearing was set for January 20th, l988.

5. There were communications between the investigating officer in Guelph and Provincial Constable Daulby in the Fall of l987. Provincial Constable Daulby was informed that he would be required to testify at the hearing and a "will say" statement was requested. He requested information on the file from Guelph in order to begin the work. There was certainly some considerable ambiguity in the evidence as to whether Provincial Constable Daulby had sufficient information to commence work on the preparation of a comparison chart immediately.

6. The time period that the Hearing Officer treated as being of special significance is that between January lst, l988 and January 20th, l988.

7. As of January lst, it is clear that Provincial Constable Daulby had the Criminal Investigation number or name of the suspect which he needed to work on the file. He was also reminded of the date of the court appearance. He requested the Guelph detachment to subpoena the R.C.M.P. in his stead because he was hard pressed for time. He also prepared the file for his supervising officer – Corporal Bladon. Corporal Bladon disapproved of the suggestion that the R.C.M.P. be asked for assistance in this matter.

8. Provincial Constable Daulby was on a course at the Canadian Police College, Ottawa, from January 4-l6. During that time he had three rest days, January 9th, l0th and l7th. He returned to his Mount Forest posting on January l8th and put in a fifteen-hour day. He was at work before 8:00 a.m. on the l9th. That afternoon he worked on preparing the chart for his court appearance. He went home for some time at around 5:00 p.m. While home he had to deal with a crisis. His child had broken her collarbone. He returned to the office later and worked on attempting to complete the task. He was unsuccessful. He left the office some time around l0:30 p.m. that night.

9. The following morning he informed Corporal Bladon of his lack of success. He was directed to attend at court and speak to the Crown Attorney. In light of the conversation between Provincial Constable Daulby and himself, the Crown Attorney withdrew the charge against Michael Fidler.

10. This charge is surrounded by some considerablesubtlety. The Prosecution has stressed that it does not relate to the fact that Provincial Constable Daulby felt unprepared to confidently identify the prints taken from the site of the break-and-enter as those of Michael James Fidler. The charge related solely to preparing a comparison chart which would, in most instances, be a visual aid to the oral testimony of an identification officer. There is also not the slightest hint of a suggestion that Provincial Constable Daulby is less than very knowledgeable and competent in his work. Preparing prints and charts can at times be problematic.

11. The Hearing Officer concluded that Provincial Constable Daulby was extremely busy with other duties and that he did in fact try to perform the required duty. However, in the judgement of the Hearing Officer, Provincial Constable Daulby ought to have asked to work on one of his three rest days. That responsibility was supposedly something that "goes with the territory". On that basis Provincial Constable Daulby was convicted for failing to act promptly and diligently in carrying out the assigned task.

12. We would respectfully disagree with the conclusion drawn. Reference to the use of rest days is purely a matter of hindsight. Had everything gone smoothly Provincial Constable Daulby would probably have completed the task in the time he in fact did work on trying to make a positive identification. It is also clear from the testimony that another officer, Constable LaFrance had also experienced difficulties in making the identification when assigned the file between January 4th and llth.

13. It seems to be crucial to the conclusion arrived at by the Hearing Officer that an Identification Officer has the responsibility to organize his own time. Setting aside domestic accidents, we are not convinced that this is entirely true in the case of Provincial Constable Daulby. The evidence given by Corporal Bladon suggests that on the one hand Provincial Constable Daulby would have "a full two days" on the l8th and l9th of January to work on the Fidler file and therefore Constable LaFrance who had been assigned to work on it during Provincial Constable Daulby's absence was permitted to stop working on it. On the other hand, Corporal Bladon was aware of the commitments Provincial Constable Daulby had for Janaury l8, which turned out to make for a very full day. Corporal Bladon was also at the time noting further appointments for Provincial Constable Daulby during the latter's absence.

14. It is unfortunate that all the alternatives that might have taken the place of Provincial Constable Daulby having to be so vital to the proceedings of January 20th were precluded, and that the trial could not proceed. It does, however, appear to be common ground that Provincial Constable Daulby is highly competent in his field and works long hours when he has to. We are prepared to accept that he did make a diligent attempt to fulfil his duties.

The appeal is allowed and the conviction set aside.

DATED THIS 17TH DAY OF JULY, 1989.

W.D. Drinkwalter, Q.C., Chairman

for Dr. Bette Stephenson and Julio Menezes.