ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE RICHARD ASHBY
Appellant
-and-
BOARD OF COMMISSIONERS OF POLICE FOR THE CITY OF BROCKVILLE
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman Ruth Corbett, Member
Hearing Date: May 22, l990
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 Ruth Corbett, Member
Appearances:
Barry D. Laushway, Solicitor for the Appellant Constable Richard Ashby, Appellant Colin D. McKinnon, Solicitor for the Board Chief W.M.G. Curtis, Brockville Police Force Deputy Chief Ray McFadden, Brockville Police Force
Hearing Date: May 22, l990
Constable Ashby was convicted on six counts of discreditable conduct on January 5th, l990 by His Honour Judge McFarlane sitting as persona designata under the governing regulation. The penalty imposed was an order thatConstable Ashby resign within seven days or be summarily dismissed. He resigned accordingly.
The grounds of appeal are "... that the evidence tendered at the hearing did not constitute actions which were discreditable conduct and that the sentence far exceeded thenature of any "infractions" which may have occurred."
The non specific nature of the grounds of appeal can only be understood by reference to the allegations and evidence subtending the convictions. The alleged discreditable conduct is Constable Ashby's conduct with six named female persons. If one were compelled to summarize the allegations in a very few words one could only use the expression "sexual harassment". That expression, however, is nowhere used in the allegations or in the transcript. It is alleged that Constable Ashby's conduct with the six women in question carried unwelcome sexual overtones.
The evidence contains no specific sexual acts or specific sexual suggestions. It is not alleged, for instance, that Constable Ashby touched any of the women indecently or that he made any direct sexual suggestions.
For instance, for a man's body to brush against a woman's body is not, per se, improper, sexual or indecent. The act can only be characterized by drawing inferences from all of the surrounding circumstances, including the reactions of those present at the time.
His Honour Judge McFarlane drew such inferences and made such findings. Because of the character of the case such findings can only be made by one who has the opportunity to see and hear each and every witness. The strength of this case cannot be tested by a mere reading of the transcript.
Amongst other things Judge McFarlane had this to say:
"There is an unmistakeable thread running through all the evidence and that is the strong desire that he feels to be accepted by women he finds attractive and the lengths to which he will go to gratify this desire both on and off duty. His method of operation was to strike up an acquaintance with the woman he had in mind, either by warning her of some minor offence she had committed or in some other manner to promote the relationship as far as the woman concerned would allow it to go ... I find that he used information from police reports and files to obtain names and addresses of women whose acquaintance he wished to pursue."
One of the women was pestered by Ashby at a private party and "she was so upset by Ashby's undue and unwanted attentions that she telephoned her husband after being at the party about 45 minutes and asked him to come and get her, which he did."
Another woman, an employee of the police force, "became so upset that she telephoned her father in Whitby and told him of the occurrences set out in the complaint and he advised her to go to the Chief, ..."
The appellant did concede that his conduct with another complainant, Darlene Sommerdyk, was such as to bring discredit upon himself. He argued, nevertheless, that it did not bring discredit upon the police force.
We are unable to find any error on the part of His Honour Judge McFarlane and accordingly the appeal with respect to conviction is dismissed.
Penalty:
Ashby was appointed a Constable in August l984. In l986 he was reprimanded by the Chief with respect to his conduct with two women. The allegations in that case were similar to the allegations now before us. We wish to note that those allegations were never proven but we find the Chief's admonition is admissible and relevant to establish the fact that the appellant had previously been cautioned with respect to such conduct. The conduct here in question occurred in l988 and l989 with one incident occurring in l986.
In commenting upon the seriousness of the behaviour the learned judge had this to say:
" ... It is quite clear that Ashby, although a good and useful policeman in other areas, cannot be trusted to behave in a professional manner around women. Ashby gave evidence and it became apparent that he considered the impugned conduct to be part of his private life and therefore did not affect his function as a policeman. I do not agree. I do not think he is any longer of use to the Brockville Police Force.
A policeman's main strength is the trust the public has in his integrity. If the public cannot trust him he is useless as a policeman. The evidence in this hearing, including his own, indicates to me that Ashby feels that if his conduct toward offenders is diligent and correct, his other conduct is irrelevant. Once again, I disagree. This 29-year-old man, married with three children has so conducted himself that he has brought himself into disrepute with a number of women of Brockville and thereby lessened the respect in which the whole police force would be held if the conduct became generally known, and in a small community such as Brockville, it certainly will become generally known and is more than likely to bring discredit upon the reputation of the police force."
We agree with the learned judge that in the circumstances of this case the appropriate penalty is an order that the officer resign.
Earlier this year the Commission heard an appeal by Provincial Constable Howat. Constable Howat had been convicted of six counts which stemmed from conduct which might be described as "sexual harassment". The penalty imposed was dismissal but this Commission reduced that penalty to a reduction in gradation of rank from first class Constable to fourth class Constable. The circumstances of that case are significantly different than those in the case before us. Constable Howat was one of approximately twenty officers stationed in a summer detachment at Grand Bend; the officers lived together in a motel at Grand Bend; most of the hosted by one or more of the officers and attended by their friends and associates. The incidents all occurred within a two month period of time and Constable Howat sought professional help before the charges were laid.
For the above reasons the appeal from penalty is dismissed.
DATED THIS 5TH DAY OF JUNE, 1990.
per ______________________________________
W.D. Drinkwalter, Q.C., Chairman