ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE DOMENIC VETERE
Appellant
-and-
THE METROPOLITAN TORONTO POLICE FORCE Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman
Frank Marc D'Andrea, Member
Hearing Date: Thursday, November 8, 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
Frank Marc D'Andrea, Member
Appearances:
Mr. Melvin Solmon for the Appellant
Mr. P. Jarvis for the Chief of Police
Mr. George Monteith for the Board of Commissioners
of Police for Metropolitan Toronto
Hearing Date: Thursday, November 8, l990
Motion to Extend Time:
This is an application by the appellant to extendthe time limited for the service of a Notice of Appealpursuant to Section 24(3) of Regulation 791.
These proceedings begin with events of November29th, l984. Constable Vetere, as he then was, was chargedwith the crime of assault, convicted, and sentenced toimprisonment for 30 days. His appeal was unsuccessful. We are advised that the assault was committed upon a prisonerwho was, at the time, in handcuffs.
The appellant was also charged with discreditableconduct relating to the same events. That charge was laterwithdrawn because Constable Vetere had been ordered to be dismissed by a Public Complaints Panel which convicted him ofa separate assault. That conviction and order of dismissal were subsequently quashed by the court.
When that other proceeding was quashed the PoliceAct charge was relaid. Constable Vetere was convicted and he was ordered dismissed. His appeal to the Board of Commissioners of Police for Metropolitan Toronto was dismissed on July l3th, l990. Notice of that disposition wasreceived by the appellant on July l6th.
This application was filed with the Commission on October l6th, l990.
Section 24 of Regulation 79l provides that a Notice of Appeal shall be served "... not later than l5 days after the time the appellant receives notice ..."(Subsection 2). Subsection 3 provides that the Commission may "before or after the expiration of the time for service of a Notice of Appeal, extend the time for service for a further period not exceeding 30 days ...".
The first question to arise is a jurisdictionalone. Does the Commission now have jurisdiction to providetime for service or does Section 24 establish a maximum of 45 days from the date that notice is received by the appellant?
Subsection 3 provides that we may "extend" the timefor "a further period not exceeding 30 days". The application can be made, of course, within or beyond theoriginal l5 days.
In attempting to ascertain the intent of the draftsman, we have read the Regulation carefully and come tothe conclusion that it contemplates an expeditiousdisposition of discipline matters. We refer particularly toSection ll of the Regulation which provides:
"The hearing and final disposition of acharge by way of review, confirmation orwith as
appeal shall be proceededand,expeditiously as possible where undue delay occurs, the person chargedmay make application,
(a) to the board or, where thereis no board, to the committeeof council; or
(b) to the Commission,
to have the charge quashed and the board,committee of council or the Commission,as the case may be, may order that thecharge be quashed and thereupon the person charged shall be deemed to havebeen acquitted of the charge." R.R.O. l980, Reg. 79l, s. 11.
While the burden of Section ll falls upon theprosecution, it nevertheless discloses a clear intention thatdiscipline matters ought to proceed without undue delay.
We choose to ignore the date of the hearing of thisMotion and focus rather upon July l6th, the date when thedecision of the Board came to the appellant's attention, andOctober l6th, the date when this application was filed with the Commission.
We have concluded that the proper interpretation ofSection 24 of the Regulation is that the maximum periodwithin which a Notice of Appeal may be served is 45 days.Accordingly, we hold that we have no jurisdiction to extendthe time as requested.
In the event that our ruling with respect tojurisdiction may be in error, we wish to deal with the meritsof the application as though we had concluded that we do infact have jurisdiction.
The Merits:
The application is based upon an affidavit ofRochelle Direnfeld, a solicitor. The affidavit is unclear. From reading the affidavit it appears as though the publiccomplaints proceeding and this proceeding arise from the sameset of facts. That is not the case. They are based upon twoseparate allegations of assault.
The affidavit sets out that the appellant had aclear and continuing intent to appeal and that the delay wascaused by the solicitor's error.
We accept that the appellant had a continuingintent to appeal.
With respect to the solicitor's error, the affidavit sets out that the Notice of Appeal was drafted"immediately" and that the solicitor "when reviewing theRegulation" ... "thought that there was no time limit inwhich a Notice of Appeal had to be delivered". She further sets out that on September 6th, l990 she realized that therewas a time limit. Presumably she was by then fully aware ofthe contents of Section 24 of the Regulation. In spite ofthat knowledge no Notice of Appeal has yet been served andthe application before us was not delivered to this Commission until October 16th. We accept that the delay hasbeen caused by the solicitor's error. We accept, of course,the law to the effect that a client ought not to beprejudiced by the error of his solicitor.
The affidavit alleges that the appeal which theappellant seeks to lodge "has substantial merit". There are six matters set forth as being meritorious:
1.This alleges a breach of the doctrine of fairness, a breachof natural justice and an abuse of process arising fromthe lengthy time delay which was caused, of course, bythe dismissal of Mr. Vetere pursuant to the publiccomplaints procedure.
2.This paragraph alleges a breach of natural justice and abreach of Section 7 of the Charter based upon theconstitution of the Trials Tribunal and the process forlaying and prosecuting charges under Regulation 791.This argument is as relevant to any other disciplinarycharge under the Police Act as it is to this charge.
3.That the Board in confirming the finding and penalty "gaveno substantial reasons".
4.That the Board refused to permit the appellant to adduceevidence with regard to the strength of the other casewhich had been dealt with pursuant to the publiccomplaints legislation. This, it is suggested, is relevant to penalty.
5.This paragraph alleges that the Board "failed to take intoaccount the good behaviour and clear record of Vetere foralmost five years".
6.This paragraph alleges that the Board "failed to take intoaccount" other cases in which more serious offences had resulted in lesser penalties.
As previously indicated, this conviction is basedupon the fact that the accused has been convicted of thecrime of assault. That crime resulted in a penalty of 30days imprisonment; both conviction and penalty were upheld onappeal. We are told that the assault was upon a prisoner whowas in handcuffs at the time.
The applicant seeks to appeal both conviction and We are not persuaded that the appellant has anarguable appeal.
Assuming that we have jurisdiction to extend thetime for serve of a Notice of Appeal at this late date, wedecline to exercise our discretion in favour of the appellantand decline to so extend the time because we are not satisfied that the appeal has sufficient merit to justify extending thetime for service.
DATED THIS 22ND DAY OF NOVEMBER, 1990.
per ______________________________________W.D. Drinkwalter, Q.C., Chairman