ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE GRAHAM BROOKS Appellant
-and-
DURHAM REGIONAL POLICE FORCE Respondent
DECISION
Panel: G. Normand Glaude, Member Ruth Corbett, Member
Hearing Date: January 4, 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: G. Normand Glaude, Member Ruth Corbett, Member
Appearances: Frederick Rowell, Q.C. for the Appellant David Sims, Q.C. for the Respondent Superintendent Dean West for the Force
Hearing Date: January 4, l990
1This is an appeal brought by Constable Brooks both as to conviction and sentence arising out of his conviction on two counts of discreditable conduct contrary to Section l(a)(vii) of the Code of Offences, Regulation 79l, Sched, Police Act, R.S.O. l980, c. 38l and of one count of corrupt practice contrary to Section l(f)(v) of the Code of Offences, Regulation 79l Sched. Police Act, R.S.O. l980, c. 38l.
2Constable Brooks was ordered to resign within seven days or be summarily dismissed.
Background:
3The facts are not in dispute. The charges arose out of an incident which occurred on August 30th, l986. While patrolling a gravel pit north of Oshawa, Constable Brooks came across one Joseph Hatton, who, with a group of friends, was firing weapons at targets in the pit. Constable Brooks discovered that Mr. Hatton had a browning 9 m.m. handgun, but no permit to transport this restricted weapon.
4Rather than charge Mr. Hatton, Constable Brooks told the young man that he would purchase the gun for $50.00 and the incident would be forgotten.
5Constable Brooks retained the gun and a few days later attended at Mr. Hatton's home to pay the $50.00.
6As a result, no charges were laid against Mr. Hatton, no occurrence brief filed and no further investigation commenced.
7Constable Brooks in carrying the gun from the pit did so without a proper permit.
8Constable Brooks was charged under the Criminal Code and convicted on February 9th, l988 of 2 Criminal Code offences, namely obstructing justice and being unlawfully in possession of a restricted weapon and was also acquitted of a corrupt practice charge.
Police Act Hearing:
9At the commencement of the Police Act disciplinary hearing before Judge Salhany, Constable Brooks faced five charges.
10Constable Brooks pleaded guilty to the two counts of discreditable conduct based on the two criminal convictions of obstructing justice and being unlawfully in possession of a restricted weapon.
11He pleaded not guilty to a charge of corrupt practice as set out below:
"You did improperly use your character and position as a member of the police force for private advantage to wit: On August 30th, l986 you were on duty and had occasion to investigate a Mr. Joseph Hatton whom you found to be in possession of a 9 m.m. handgun. As a result of the threat of a Criminal Code charge, Joseph Hatton was coerced into selling to you a 9 m.m. Browning handgun at less than its value".
12He also pleaded not guilty to a charge of discreditable conduct as set out below:
"That you did act in a manner likely to bring discredit upon the reputation of the Police Force, to wit: On August 30th, l986, while on duty as a member of the Durham Regional Police Force, you found a Mr. Joseph Hatton to be in possession of a restricted weapon, a Browning 9 m.m. handgun. As an alternative to arresting Joseph Hatton for the Criminal Code of Canada offence, you coerced Joseph Hatton into selling the weapon to you".
13The fifth charge of neglect of duty was withdrawn. The evidence before Judge Salhany consisted of the transcript of the criminal proceedings, and the evidence of one witness, namely Joseph Hatton.
14At the close of the hearing, Judge Salhany convicted Constable Brooks of the corrupt practice charge, stayed the discreditable conduct charge and ordered that
15Constable Brooks resign within seven days or be summarily dismissed.
16The Appellant, therefore, appeals the conviction for the corrupt practice charge and the sentence.
Decision:
17In dealing with the appeal from conviction, it should be noted that for the purposes of this hearing, the Appellant accepts the statement of fact as in the Respondent's Factum.
18Simply put, the Appellant contends that the conviction for corrupt practice cannot stand because the plea of guilty and conviction on the discreditable conduct charge involving the obstruction and perverting or defeating of the course of Justice arises out of the same set of facts and calls into play the application of the Kienapple principle.
19That principle was enunciated and applied in R. vs. Kienapple (l974) l5 C.C.C. (2d) 524. Simply stated, that case decided that res judicata would apply to prevent multiple convictions for different offences arising out of the same cause or matter.
20The Appellant's submission, as we understand it, is that a plea of guilty to the charge of discreditable conduct arising out of the criminal conviction of obstructing justice, the Kienapple principle should apply and prevent a conviction on the corrupt practice charge.
21Both Counsel have referred to the Supreme Court of Canada decision in R. vs. Prince (l986) 30 C.C.C. (3d).
22In that case, the Supreme Court of Canada held that in order for the rule to apply, there had to be both a factual and legal nexus between the charges. The legal nexus was the commonality of elements and the absence of additional or distinguishable elements.
23It is conceded that there is a factual nexus between the two charges being considered.
24The Appellant argued forcefully that the legal nexus also existed. Counsel argued that the gist of the offence of obstructing justice was that, as a result of the fact that Constable Brooks initiated the process of buying the gun, he in fact also initiated the process of preventing charges being laid against the young man.
25He also stressed that the charge of corrupt practice was in essence the same element in the sense that Constable Brooks' use of his character as a member of a police force amounted to obstructing justice and as such, only one occurrence of obstruction had in fact occurred.
26Counsel for the Respondent suggested that there was no legal nexus between the two charges. He argued that the discreditable conduct charge and the corrupt practice charge served different purposes, the discreditable conduct was to prevent conduct that would bring discredit on the police force whereas the corrupt practice charge was directed at the moral integrity of individual officers.
27We have in the course of these proceedings, reviewed the case law in this matter, particularly the Kineapple and Prince decisions. We have also carefully reviewed Judge Salhany's reasons for Judgement wherein he found that there was no commonality of elements between both charges. We agree with Judge Salhany's view that "the charge of discreditable conduct is directed towards the question of bringing discredit upon the reputation of the police force. The charge of corrupt practice is directed towards the particular conduct of the officer charged, that is conduct that is personal to him". We also find that such a distinction is valid and sufficient to take this matter out of the application of the Kineapple principle.
28Having said that, it should be noted that argument was also heard on the applicability of the Kineapple principle to disciplinary matters. Counsel for the Respondent has argued that the case of R. vs. Wigglesworth l987 2 S.C.R. 543 stands for the proposition that the principle of Kineapple applies exclusively to criminal proceedings.
29We have reviewed the case in question and find that the facts do not apply to this case. In that case, a police officer was tried for a major service offence as a result of a common assault, and then was charged under the Criminal Code. The officer was attempting to hold his conviction under the police disciplinary hearing as a shield to further Criminal Code charges.
30This clearly is not the case at hand. The Appellant is not attempting to have the Police Act charges dismissed because of the related criminal convictions. He is simply arguing that the Kineapple principle should apply within the Police Act Hearing and that equity and natural justice would demand the application of that principle.
31Having already dealt with the merits of this portion of the appeal, and having found that this case does not fall within the Kineapple principle, we need not go further to determine the issue raised at this time.
32Accordingly, we would confirm the Appellant's conviction.
Sentence:
33In dealing with the sentencing aspect of this matter, the Appellant has urged upon us the proposition that the penalty imposed is harsh and excessive. He argued that the maximum penalty should be reserved for the worst case and the worst offender. In this case, of course, it should be noted that Constable Brooks does have a good record, and that in the words of Judge Lesage "he is an excellent officer".
34Mr. Rowell submits that this is not the worst offence, in that offences such as perjury are much more serious. He further directed us to cases where police officers were not dismissed even after convictions for perjury.
35Mr. Sims for the Respondent submitted that "the worst offence, and worst officer" test is not the proper test to be applied in the policing context.
36There must, in his submission, be a threshold whereby if unacceptable conduct passes such a threshold, the fact of a good work record simply is not sufficient to preclude a dismissal.
37We find that in this case, Constable Brooks' actions were planned, methodical and deliberate.
38Once faced with the "opportunity" of obtaining the weapon in question, he did the following:
(a) He sent Mr. Hatton's friends away;
(b) He did not disclose his actions to his partner;
(c) He returned days later to Mr. Hatton's home to "complete the transaction".
39There can be no doubt that Constable Brooks knew what he was doing and how he would go about attaining his goal.
40In attaining his goal, Judge Salhany in his reasons, found that Constable Brooks occupied a unique position and had abused that position.
41In so doing, Constable Brooks has undermined the public confidence and His Honour Judge Salhany felt that notwithstanding his good record he should be dismissed.
42After having reviewed all of the circumstances, and the submissions made by Counsel, we feel that Constable Brooks' actions were of first order of seriousness and this Tribunal must consider the serious nature of a situation where a police officer attempts to obstruct justice for his own personal gain.
43Accordingly, we are of the opinion that the sentence imposed was appropriate in all of the circumstances and we accordingly dismiss the appeal and confirm the sentence imposed.
DATED THIS 15TH DAY OF MARCH, 1990.
G. Normand Glaude, Member
Ruth Corbett, Member
per ______________________________________