ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
SERGEANT J.H. FLEMING
Appellant
-and-
THE ONTARIO PROVINCIAL POLICE FORCE
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman
Julio Menezes, Member
Hearing Date: July l0, 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
Julio Menezes, Member
Appearances:
Sergeant Fleming on his own behalf
Dennis W. Brown, Q.C., for the Ontario Provincial Police Force
Inspector J.B. Mitchell, Professional Standards Branch Ontario Provincial Police
Hearing Date: July l0, l990
- At the opening of the hearing Sergeant Fleming moved for an order quashing the proceeding pursuant to Section 46 of the Regulation. This section provides:
"46. The hearing and final disposition of a charge
by way of review, confirmation or appeal shall be proceeded with as expeditiously as possible and, where undue delay occurs, the person charged may make application to the Commission to have the charge quashed and the Commission may order that the charge be quashed and thereupon the person charged shall be deemed to have been acquitted of the charge."
The appellant's motion is based upon the fact that this hearing was scheduled for April 5th of this year and did not proceed on that day because no one appeared on behalf of the respondent. No one appeared on behalf of the respondent because the Commission had not given notice to the respondent. It is the clear duty of the Commission to give such notice pursuant to Section 58(5) of the same regulation.
It is the responsibility of the Commission that the hearing did not proceed on April 5th as originally scheduled. Following April 5th attempts were made to reschedule the hearing but because of the inability of parties to attend on various dates (including the appellant himself) the matter could not conveniently proceed until today.
The delay and inconvenience to Sergeant Fleming is truly unfortunate. We apologize to Sergeant Fleming for what was clearly an error made by the Ontario Police Commission. We must now, however, turn our attention to whether or not this three-month delay can be characterized as "undue" within the meaning of the regulation.
The event began in February l989; the conversation between Sergeant Fleming and Inspector Baranoski which forms the foundation of the allegation occurred on April 2lst, l989. The Charge Sheet was signed on the 2lst of July and served on Sergeant Fleming on the 3rd of August. The first appearance was on the 7th of September l989 and the trial was conducted on November 29th. Sergeant Fleming's appeal was filed on December l4th, l989. The record of the proceedings, including a transcript of the trial, was received on March lst, l990 and the appeal scheduled for April 5th. Attempts were made to reschedule the appeal for May 22nd, May 24th, and June 29th; the appellant was not available on any of those days. Eventually the appeal was scheduled for l0:00 a.m. on July l0th and rescheduled to 2:30 p.m. to suit the convenience of Sergeant Fleming who was on vacation.
Having considered all of the above we can only conclude that the delay, although unfortunate, does not meet the test of being "undue" within the meaning of the regulation.
Sergeant Fleming was convicted of a minor offence; the penalty was a forfeiture of two days' leave.
The offence is insubordination "in that you did without lawful excuse, disobey, omit or neglect to carry out any lawful order contrary to Section l(b)(ii) of the Code of Offences made under Regulation 79l of the Police Act".
The statement of particulars reads as follows:
- "On Friday, April 2lst, l989, while on duty at Burlington District Headquarters you were instructed by Inspector R.W. Baranoski to submit a properly completed directory information card (Form PCS02l). Despite this instruction from a member superior in rank to yourself, you failed to properly complete this administrative form. The address you submitted was the address of the post office where you receive your mail not the residence address as stipulated in the form."
The grounds of appeal are three:
That the Force failed to comply with Section 39(2) of the Freedom of Information and Protection of Privacy Act.
That the appellant had a lawful excuse because of alleged harassment of his wife by a member of the Force.
Under all the circumstances the conduct of the appellant was not insubordinate.
Facts:
Sergeant Fleming, an officer with 25 years experience, was ordered to provide the Force with his residence address. For reasons too obvious to require mention or discussion the Force requires the home address and telephone number of every member. When Sergeant Fleming's immediate superior, Staff Sergeant Smouter, examined the files he discovered that the card relating to Fleming hadbeen altered and showed an address which in fact turned out to be a post office. Later in the process a new document was filed showing another street address; this also turned out to be a post office. Sergeant Fleming refused to provide a residence address as required.
Sergeant Fleming now claims that the reason he refused to provide his residence address was that the woman whom he married in early April had been sexually harassed bysome other member of the Force and his refusal was to protect her. It is worthy of note that she was employed by the Royal Canadian Mounted Police and had provided the residence address to that Force with a request that it be kept confidential because of the harassment problem.
At the time of these events the harassment allegation was being pursued through the normal channels and there had in fact been no harassment for at least two years.
When Sergeant Fleming refused to provide his residence address he did not initially give a reason therefor. His reason arose subsequently as did his reliance on the Freedom of Information and Protection of Privacy Act.
Ground Number l:
Subsection 39(2) of the Freedom of Information Act provides that in situations such as this the individual must be informed of (a) the legal authority for the collection; (b) the principal purpose or purposes for which the personal information is intended to be used; and (c) the title, business address and business telephone number of a public official who can answer the individual's questions about the collection.
The fact is that Fleming was a Sergeant of twentyfive years service and, amongst his duties would be the responsibility to see that those officers he was supervising complied with the rules relating to this information. Sergeant Fleming, therefore, was well aware of the authority for collection of the information, the purposes for which the information was intended and the people who were able to answer questions. Notwithstanding this the Force did comply with the section and indeed went further and made an appointment for Sergeant Fleming with Inspector Baranoski. At this meeting the requirements of the Freedom of Information Act were met again and Fleming continued to refuse to comply. It is this meeting which is the foundation for the charge.
Ground Number 2:
- Whether or not the alleged fear of harassment could constitute a lawful excuse does not directly arise in this case because it was not raised by Sergeant Fleming at the time that the order was given. In any event, and even it if were relevant, it constitutes no defence in this situation because the Force could quite easily have complied with a request to keep the information confidential as in fact the Royal Canadian Mounted Police had done for Fleming's wife.
Ground Number 3:
- To say that Sergeant Fleming's conduct was insubordinate is to describe his conduct in the mildest possible way.
For the above reasons the appeal is dismissed.
DATED THIS 23RD DAY OF JULY, 1990.
per ______________________________________
W.D. Drinkwalter, Q.C., Chairman