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 Lawrence Colotelo from a Decision of the Local Board of Commissioners of Police for the City of Ottawa.
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman Jean Margery Beauprie, Member
Hearing Date: February 9th, 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: W.D. Drinkwalter, Q.C., Chairman Jean Margery Beauprie, Member
Date of Hearing: February 9th, 1989.
Appearances: Constable William Johnson for the Appellant No one appearing for the Chief or the Board
[1]. Constable Colotelo was charged with "damage to clothing or equipment, wilfully or carelessly cause waste, loss, or damage to any article or clothing or equipment, or to any book, document or other property of the police force contrary to Section l(h)(i) of the Schedule Code of Offences of Ontario, Regulation 79l/80, made in pursuance of the Police Act of Ontario, and did thereby commit a minor offence".
Statement of Particulars:
[2]. "On March 25th, 1987 Constable Larry Colotelo signed out a portable radio, Serial Number 82©002, the property of the Ottawa Police Force. On March 25th, 1987 Constable Colotelo submitted an occurrence report stating that the radio had been stolen. Constable Colotelo reported that the radio had been left in a police vehicle. Constable Colotelo reported that the police vehicle had been parked at 2479 Walkley Road in the City of Ottawa".
[3]. Constable Colotelo was convicted; the penalty was two days leave. The conviction and penalty were later confirmed when Constable Colotelo appealed to the local board.
[4]. The heart of the allegation is that Constable Colotelo was issued a portable radio and that the radio was lost or stolen due to his negligence. From the evidence that appears that the radio was left under the front seat of the vehicle driven by Constable Colotelo by a fellow officer when they left the vehicle and that one Of the doors of the vehicle was not locked when they left it. The alleged negligence, presumably, is, being responsible for the radio, having permitted it to be left in the motor vehicle without securing the motor vehicle. The radio was in fact stolen during the absence of the police officers.
[5]. Constable Johnson opened his argument by conceding that the matter appears,on the surface, to be trivial but indicating rather that it was a serious matter because it involved an important question of principle. He then repeated a preliminary motion which he had made before the local board to the effect that the charge is a nullity in as much as the charge sheet does not comply with Section 5(8)(b) of Regulation 79l. That sub-section reads as follows:
“(8) Each charge in the charge sheet shall,
(b) be divided into two parts as follows:
A statement of the offence with which the accused is charged.
A statement of the particulars of the act, omission, conduct, disorder or neglect constituting the offence.”
[6]. Constable Johnson argues that by repeating the entire content of Section l(h)(i) the charge sheet fails to identify the offence with which Constable Colotelo was charged. He argues that at the broadest the charge ought to have been "wilfully or carelessly ... lost ... equipment ..." and in particular that it ought not to have referred to "waste, ... damage ... clothing ... book ... document or other property
[7]. ...". One then looks to the particulars to ascertain whether they are sufficient to cure the defect. In this case they are not.
[8]. Constable Johnson further argues that there is nothing in the particulars referring to an " ... act, omission, conduct, disorder or neglect ..." as required by subsection 8 of Section 5.
[9]. The allegation, in effect, is that Constable Colotelo carelessly caused the loss of a piece of equipment.
[10]. In the statement of particulars it is alleged that Constable Colotelo was issued the radio; that he submitted an occurrence report indicating that the radio had been stolen and reported that it had been left in a police vehicle. He further reported that the police vehicle had been parked at a specific address. All of the conduct alleged in the particulars appears, on the surface at least, to be lawful conduct and in no way improper conduct. There is no allegation that it was an act of carelessness to leave the radio in the vehicle or it was an act of carelessness to park the vehicle at this specific address. In particular, there is no allegation that the vehicle was left unlocked or unattended.
[11]. The Ontario Police Commission has dealt with the sufficiency or a charge sheet on three previous occasions. These are:
Stevenson (l969) O.P.R. (Ontario Police Reports) l9
Turbucz (l976) O.P.R.
Henderson (l977) O.P.R. 326
[12]. Constable Johnson was well prepared and presented his argument well. As noted above, no one appeared for the Chief or the Board.
[13]. We find that the charge was not sufficiently identified to comply with ParagraphNo. l of Clause b of sub-section 8 and that the deficiency is not cured by the statement of particulars. We also find that the statement of particulars fails to allege in an "act, omission, conduct, disorder or neglect ...". Accordingly, the charge sheet is deficient, the charge is a nullity and the previous proceedings are quashed.
DATED THIS 9th DAY OF FEBRUARY, 1989
W.D. Drinkwalter, Q.C., Chairman for himself and J.M. Beauprie