ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

Constable Carmen Spizziri

Appellant

-and-

Ontario Provincial Police Force

Respondent

DECISION

Panel: W.D. Drinkwalter, Q.C., Chairman Frank Marc D'Andrea, Member Dr. Bette Stephenson, Member

Hearing Date: November 23, 1988

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

Date of Hearing : November 23, 1988

Date of Decision: January 3l, l989

Presiding Members:

W.D. Drinkwalter, Q.C., Chairman Frank Marc D'Andrea, Member Dr. Bette Stephenson, Member

Appearances:

Michael W. Temple, Q.C., for the Appellant

John P. Zarudny for the Respondent

1. The appellant was charged with discreditable conduct "in that you did act in a manner likely to bring discredit upon the reputation of the Ontario Provincial Police Force", contrary to Section l(a)(i) of the Code of Offences contained in Regulation 79l made under The Police Act.

2. The particulars of the offence are specified as: "on February 5, l987 at the Woolco Department Store, Meadownvale Town Centre Circle, Mississauga, Ontario, you left the Woolco store with a briefcase and two pairs of women's trousers and failed to pay for these items which were the property of Woolco".

3. The penalty imposed was that Constable Spizziri was ordered to resign within seven days or to be summarily dismissed from the Force should he fail to do so.

4. This is an offence which is commonly known as shoplifting. The briefcase and slacks amount in value to approximately $70.00. Since the hearing in this case, Constable Spizziri has been convicted of the offence of theft; the penalty imposed was l00 hours of community service.

5. The appellant put before us a defence based upon psychiatric evidence which was provided by Dr. Koladich. The appellant went to see Dr. Koladich for the first time following the events in question.

6. The evidence, so far as it relates to the act of removing the merchandise without paying for it, is substantially uncontested. The question then becomes whether the accused's mental condition was sufficient to excuse his conduct.

7. At the time of these events Constable Spizziri was under very significant stress.

8. He has, or at least has had, Hodgkin's disease. He was off work because of this disease from January through November of l985. The disease has either been cured or at least is in remission. In addition to these problems, Constable Spizziri's father was very seriously ill and the decision to discontinue life support systems fell to Constable Spizziri. This, notwithstanding that he and his father had had a very unhappy and strained relationship. When Constable Spizziri was in hospital suffering from Hodgkin's disease, his father did not visit him.

9. We accept the evidence of Dr. Koladich and find that that explains, but does not excuse, the acts of Constable Spizziri.

10. Constable Spizziri joined the Force in September of l970 and has had an unblemished record. We were advised that there had been no previous charges under the Code of Discipline and no complaints filed against Constable Spizziri's conduct.

Decision:

11. As noted above, we accept the evidence of Dr. Koladich and find that it explains, but does not excuse, the conduct of the constable. Accordingly, we uphold the finding of guilt.

Penalty:

12. Under ordinary circumstances the appropriate penalty to be imposed under The Police Act upon a police officer who commits theft is dismissal. Considering Constable Spizziri's length of service, unblemished record, and mental turmoil at the time of the events, we find that dismissal is too severe a penalty. Having said that, we wish to make it very plain that this decision is restricted and narrowed to the particular facts of this case.

13. During argument with respect to penalty we asked counsel whether the Ontario Police Commission is limited to the penalties set out in Section 52(8) of Regulation 79l or whether the words of Section 58(l0)(c) "vary the punishment imposed as it considers just;" give the Commission a broader discretion. On this issue we gave the Attorney General until January 3rd, l989 to provide argument and ordered that the appellant be permitted three weeks in which to respond.

14. We have received submissions on behalf of the Attorney General but not on behalf of the appellant. This is probably because the Attorney General takes the position that the Commission is bound by the penalties prescribed in Section 52(8) of Regulation 79l. It appears to us now that the legislators did not intend to give the Ontario Police Commission an open ended discretion and further that the legislators could not do so without clear and explicit language; which language we do not find in the Regulation or the Act. Accordingly, we find ourselves limited to the prescribed penalties.

15. In determining the appropriate penalty, it is important to point out to the public and to police officers that the Ontario Police Commission will not tolerate the commission of even minor offences or crimes by police officers. For the reasons given above, we find that the penalty of dismissal or forced resignation is, under these unusual circumstances, inappropriate.

16. We order that Constable Spizziri be reduced one grade in rank from First Class Constable to Second Class Constable and that he not be eligible for reclassification as a First Class Constable for a period of at least six months.

DATED THIS 31^st DAY of January, 1989

W.D. Drinkwalter, Q.C.

for himself, F.M. D'Andrea and Dr. B. Stephenson.