ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
IN THE MATTER OF an appeal by Constable John D.
W a l k e r f r o m a D e c i s i o n of the Board of
Commissioners of Police for the City of Belleville.
DECISION
Panel: Jean Margery Beauprie, Member
Frank Marc D'Andrea, Member
Hearing Date: January 20, 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:
Jean Margery Beauprie, Member
Frank Marc D'Andrea, Member January 20, 1989
Appearances:
Constable John D. Walker for himself
William J. Hayter for the Board
Constable Walker was convicted on a charge that he did "knowingly without reasonable excuse failed to report for parade on a regular scheduled shift beginning at 23:45 hours on Wednesday, December 31st, 1986." The penalty imposed was forfeiture of three days off.
Constable W a l k e r ' s defence was that he had a reasonable excuse for failing to report for duty inasmuch as he had o r i g i n a l l y been scheduled to work Christmas Day, Boxing Day and New Year's Day commencing slightly before that date began. In early December he was granted leave with respect to that shift and that leave was not cancelled until December 30th. The reason for the late cancellation of leave i s a t t r i b u t a b l e to e r r o r s made and a b r e a k d o w n in communications amongst two sergeants and a deputy chief.
T h e r e was no e m e r g e n t s i t u a t i o n which necessitated additional manpower on this shift. The order cancelling leave was given by Deputy Chief Tremble.
During the preliminaries, prior to commencement of hearing, Constable Walker indicated that he wanted to call as witnesses the Chief of Police and the Deputy Chief of Police and further he made a motion requesting that the Chief of Police step aside as presiding officer. This motion was based on an allegation of bias. The hearing proceeded and the Chief presided. In addition to that, Deputy Chief Tremble, who had given the order which Constable Walker was alleged to have breached, acted as prosecuting officer. Deputy Chief Tremble was at least a potential witness and could have been called to testify.
When one alleges bias, it is not necessary to establish that the target is in fact biased. The person making the a l l e g a t i o n must merely establish that the situation is such that a reasonable person viewing the matter objectively could reasonably perceive a bias. In these circumstances the test is clearly met and accordingly the result of the hearing must be quashed.
C o n s t a b l e W a l k e r appealed to the Board of Commissioners of Police. That appeal was considered in the absence of Constable Walker and without giving him notice of the date and time and the hearing.
The appeal to the Board is governed by Section 19(4) of Regulation 791 which provides, in part, that "the board or committee of council shall decide the appeal from the record but may, in special circumstances, hear such evidence as the board or committee of council considers advisable". Constable Walker did not receive a transcript of the hearing before Chief Begbie until five minutes after he had received a letter from the board denying his appeal and upholding the conviction and penalty. It is difficult to understand how an appellant could put forward a comprehensive appeal or convince anyone of "special circumstances" in order to call additional evidence, without access to the transcript of the original hearing. Whether or not the statutory powers procedure act requires that an appellant be given an opportunity to present his case certainly fundamental rules of justice and fair play demand it.
Because Constable Walker was denied a fundamental right of the minimal rules of natural justice, we quash the finding of the local board.
We now f i nd ourselves in the position of either having to remit the matter for re-hearing or to decide the matter ourselves. Considering the time and costs involved in a re-hearing, we elect to decide the matter today.
It is clear beyond doubt that the order was a lawful order and that Constable Walker was absent from duty.
The only question is whether he had a reasonable excuse for such absence. We find that while the circumstances are very unfortunate and, indeed, unfair, nevertheless they fall short of establishing a "reasonable excuse" for a police officer choosing not to report for duty. Constable Walker ought to have worked his shift and made his objection in some other way.
Penalty:
- Constable Walker was penalized three days off. We find that penalty inappropriate and insufficient to indicate to the profession the seriousness of an officer failing to report for duty. However, under the circumstances it is quite understandable why the penalty would be minimal. Because of the unfortunate circumstances leading up to Constable Walker's failure to report for duty, and the unfortunate errors in the hearing and the appeal to the local board, we believe that the penalty ought to be reduced and accordingly impose a forfeiture of one day off.
DATED THIS 20th Day of January, 1989
W.D. Drinkwalter, Q.C., Chairman
for Jean Beauprie and Frank D'Andrea