Constable Robert M. Jones v. Peel Regional Police Force, 1989 CanLII 6733

ONTARIO CIVILIAN POLICE COMMISSION

RESONS FOR DECISIONS

CONSTABLE ROBERT M. JONES APPELLANT

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PEEL REGIONAL POLICE FORCE RESPONDENT

DECISION

Panel: W.D. Drinkwalter, Q.C. - Chairman, Julio R. Menezes, Member

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

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Presiding Members: W.D Drinkwaiter, Q.C., chairman Julio R. Menezes, Member

Appearances: Noel A. Nolasco Da Dilva, Esq., for the Appellant W.E. Macdonald for the Peel Regional Police force

Hearing date: February 22, 1989

1. Constable Jones appeals from his conviction on a charge of discreditable conduct and the penalty imposed of forfeiture of 15 days’ leave.

2. Constable Jones was performing the duties of a desk sergeant on the afternoon of March 21^st, 1986. He was responsible for attending to the telephone and operating the computer. Two other officers - Constable Bullock and Constable Kroetsch – were on similar duties with him.

3. At approximately 5:30 p.m. Ms. Fiona Petrie called the station seeking assistance. Ms. Petrie had been the victim of a burglary of her car two days previous. She developed a concern about the possible theft of a credit card. After unsuccessfully attempting to contact the issuer of the card Ms. Petrie telephoned the Brampton station. The call was taken by Constable Jones. A tape recording of the conversation is available and was introduced in evidence.

4. Ms. Petrie developed the impression that she would not receive any assistance from Constable Jones. She telephoned another station and later called the Brampton Station for the second time. The subsequent call was dealt with by Staff Sergeant Pollit who gave her the advice and assistance she had been seeking. Ms. Petrie complained about the service that she had received originally from Constable Jones.

5. The charge was laid on the basis of the conversation between Constable Jones and Ms. Petrie. Constable Jones was convicted. The

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conviction was upheld by the Peel Regional Board of Commissioners of Police.

6. Constable Jones is appealing the conviction on the following grounds:

7. The evidence discloses no offence.

8. That the Presiding Officer placed undue weight on the mere possibility that MS. Petrie might have been reporting a serious sexual assault.

9. The Presiding Officer knew or ought to have known, that public calls are screened by the police switchboard and that emergency calls are not sent to the front desk.

10. The Presiding Officer erred in admitting a tape recording of a personal telephone call between Constable Jones and a friend.

11. That the personal call was given excessive weight.

12. That the charge of discreditable conduct – major was inappropriate.

13. The Presiding officer did not place sufficient weight on the fact that at the time of the telephone call Constable Jones was preoccupied by problems with the computer.

Decision

7. We wish to first deal with the set aside the issue with respect to the charge laid – the sixth ground on which this appeal is founded. The Ontario Police Commission has adopted the position that it does not have the jurisdiction to vary a charge from major to minor. This was stated explicitly in Re Harrison (1971) O.P.R. 71 and reiterated in Re Jacklin (1976) O.P.R. 278 and Re Henderson (1977) O.P.R. 326.

8. The discretion of a police chief has been analogized to that of a Crown Prosecutor in selecting between proceeding by way of summary conviction process or by indictment. The decision to designate a charge as major gives the accused the protection of a more formal

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process; it does allow for a more severe sentence than the maximum for a conviction on a minor charge, but does not compel that result. The sentence on a conviction for a major charge could be less than the maximum sentence on a minor charge. Provided the particulars of a charge are established, the appropriate point at which the relative seriousness or triviality of the acts should have bearing on this decision is in assessing an appropriate sentence.

9. With respect to the admission of the tape recording of a personal conversation we agree that it was properly admitted. There would be no reasonable expectation that under the circumstances of that call it would be protected as being private. The length and purpose of the conversation is of some relevance to the matters raised by Constable Jones in his defence viz the understaffing at the desk and his work load.

On the other hand, the substance of the conversation itself is of no great moment. A marked contrast in style between a social conversation and a purely work- related call is to be expected

10. The central piece of evidence is the recording of the actual conversation between Constable Jones and Ms. Petrie. The tape of that exchange is ample evidence to substantiate the Presiding Officer`s findings. Constable Jones was very abrupt. The sum of the assistance he was prepared to give the caller was to take down a telephone number. The caller would then possible receive a return call. He explicitly declined to listen to another officer in the station at that time.

11. The telephone conversation is very short. That is in itself testimony to the success of the bearing that Constable Jones assumed. The Presiding Officer was entirely correct in concluding that the intent of the abruptness adopted by Constable Jones was to terminate the call as soon as possible. The tape- recording is sufficient evidence of discreditable conduct. There is no necessity to place any weight at all on the speculative possibilities of the reasons for Ms. Petri`s call to find that Constable Jones did not respond in an appropriate manner. There is no indication that the Presiding Officer gave any weight to the speculation that the call could have been in relation to a sexual assault.

12. The recording of the conversation reveals all that was said at the time. It does indicate that Constable Jones was more anxious to end

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the conversation than he was to elicit information from the caller as to the nature of her problem. The conclusion drawn that Constable Jones` manner was inappropriate irrespective of the importance of the call was amply justified.

Sentencing

13. As we indicated earlier the concerns about the relative triviality or seriousness of the offence should be considered in sentencing. The original penalty assessed was a reduction in rank to 2^nd Class Constable for an indeterminate period. On appeal, the Board of Commissioners varied the sentence to forfeiture of 15 days` leave. We think this is excessive.

14. There was no direct evidence to indicate that Constable Jones could not respond over the telephone in a proper manner. On the other hand his actions, while short of what is expected were relatively innocuous. Had he at an early stage apologized directly to Ms. Petrie the matter may well have been terminated there. If this matter stood alone, without reference to the Constables work record, a reprimand might well be the appropriate penalty. We consider that Constable Jones work record has shown a steady and dramatic decline. While this must not be allowed to totally overshadow the particulars of the offence it must, nevertheless, be considered. The penalty is therefore, varied. A penalty of five days loss of leave is under the circumstances a reasonable balance and we so varied the penalty.

15. Appeal from conviction disallowed appeal from sentence allowed in part and sentence varied to forfeiture of five days` leave.

DATED THIS 1^st DAY OF JULY, 1989

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

for Myself and Julio R. Menezes.