ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE DAVID PACKER
Appellant
-and-
METROPOLITAN TORONTO POLICE FORCE
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman Jean Beauprie, Member Frank D'Andrea, Member Professor Julio Menezes, Member G. Normand Glaude, Member
Hearing Date: December l3 and l4, l989
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 Jean Beauprie, Member Frank D'Andrea, Member Professor Julio Menezes, Member G. Normand Glaude, Member
Appearances:
Harry Black for the Appellant Constable Packer in person George Monteith for the Force Staff Inspector Addison for the Force
Hearing Dates: December l3 and l4, l989
Constable Packer was convicted of a charge underthe Police Act that he did, without lawful excuse, disobey,omit or neglect to carry out a lawful order contrary toSection l(b)(ii) of the Code of Offences, Regulation 79l/80and did thereby commit a major offence.
The charge was particularized as follows: "Being amember of the Metropolitan Toronto Police Force, attached toNo. l4 Division, you, on Wednesday, April 8th, l987, wereworking the 7:30 a.m. to 5:30 p.m. relief, assigned to Zone 2South, court at l0:00 a.m. and the Morgentaler Clinic atl2:00 noon. At about l2:30 p.m., you had conversation withStaff Sergeant Allen Griffiths, ll46, relative to your dutiesat the Morgentaler Clinic. At this time you advised StaffSergeant Allen Griffiths, ll46, you could not stand by aplace that was killing babies, the detail was not a lawfulorder and you would not do it. At about l2:59 p.m., in thepresence of Sergeant Alexander Crawford, 3l97, Staff SergeantAllen Griffiths, ll46, gave you a direct order to attendoutside the Morgentaler Clinic, to which you replied: "I respectfully refuse. I don't think it's a lawful order." At about l:05 p.m., in the presence of Staff Sergeant AllenGriffiths, ll46, Superintendent John Getty, 4099, ordered youto perform the duty detailed to you by Staff Sergeant AllenGriffiths, ll46, at the Morgentaler Clinic, to which youreplied: "I must respectfully decline." Without lawful excuse, you disobeyed a lawful order."
Immediately following the incident on April 8th,l987 Constable Packer was charged. He was convicted in January l988 and ordered to resign, in default of resigningwithin seven days to be summarily dismissed from the Force.He appealed to the Board of Commissioners of Police for theMunicipality of Metropolitan Toronto. That appeal was arguedin November l988 and the Board's decision rendered in March of l989.
The appeals from conviction and penalty were dismissed.
Social Context:
At the time of these events a significant publicdebate was raging in Canada concerning the propriety ofabortion. Groups had been organized to argue that a womanought to have an unrestricted right to abort and, at theother extreme, that abortion ought to be absolutelyprohibited by law.
In l968 the Criminal Code of Canada was amended so as to prohibit abortion unless it be done with the approvalof a therapeutic abortion committee for an accredited orapproved hospital and performed by a qualified medical practitioner.
Dr. Henry Morgentaler had opened a clinic in theCity of Toronto at which abortions were performed in contravention of the Criminal Code. He had been charged andacquitted. The Attorney General appealed to the OntarioCourt of Appeal and later the matter was appealed to theSupreme Court of Canada.
At the time of these events (April 8th, l987) theappeal in the Supreme Court of Canada had been argued but thecourt's decision had not yet been released. On April l0th,l987 the Supreme Court of Canada held that the provisions ofthe Criminal Code relating to abortion were unconstitutionaland thus of no effect.
During the interval between the time that Dr.Morgentaler was charged and the time that the Supreme Courtof Canada spoke he continued to operate at the clinic inToronto. The authorities had decided that pending the rulingof the Supreme Court of Canada no further charges would belaid or proceedings taken with respect to the activities atthe Morgentaler Clinic.
Constable Packer was born and educated in England.Before coming to Canada in l976 he had served for 2 l/2years with the Thames Valley Police Force. Constable Packer was raised in the Anglican Church;in l974 he married a Roman Catholic; he and his wife havefive children.
Constable Packer joined the Metropolitan TorontoPolice Force on the 3lst of August l977 and has, since then,earned a good record of achievement.
At the time of his trial Constable Packer was taking instruction from a priest of the Roman Catholic churchwith a view to becoming a member of that faith. He had for some years accepted the validity of the teaching of the RomanCatholic church with respect to abortion.
The Facts:
In August of l983 Constable Packer was assigned toNo. l4 Division, the jurisdiction of which encompasses theMorgentaler Clinic.
The Morgentaler Clinic had been the focus of demonstrations by persons participating in the debate whichwas swirling about the abortion issue. These demonstrations frequently resulted in offences such as assault and damage toproperty. The police force was, therefore, called upon topatrol the area regularly in order to keep the peace andprevent the commission of such offences.
In January of l986 Deputy Chief McCormack met withthe personnel at l4 Division in order to discuss the situation at the Morgentaler Clinic. Amongst other thingsthere was a discussion of sharing the duty. This was a veryunpopular assignment and there was a belief that some peoplewere being assigned too often to this duty and others notfrequently enough.
On March 4th, l986, March 8th, l986, and July 22nd,l986 Constable Packer had been assigned to duty near theMorgentaler Clinic. He had accepted that duty and had spentthe time in a patrol car generally keeping observation. The duty commenced approximately midnight and terminated sometime between 7 and 8 in the morning. During those hours theclinic was not operating. On one other occasion Constable Packer had been stationed near the clinic in a patrol carduring operating hours.
On March l6th, l987 Constable Packer was told thathe would be assigned to foot patrol, including the area ofthe Morgentaler Clinic. The purpose of this patrol was tokeep the peace and thus to prevent the commission of offencessuch as assaults and property damage.
On the morning of April 8th, l987 Constable Packerwas assigned to foot patrol in the area near the MorgentalerClinic; he was to be in court that morning and was to appearon patrol at approximately noon.
When Constable Packer completed his duties in courtthat morning he reported to Staff Sergeant Griffiths atapproximately l2:30 p.m. It was at that time and throughoutthe next approximately l/2 hour that Constable Packer severaltimes refused the order. He did so politely, almost apologetically, and explained that in his opinion the orderwas not a lawful order.
The Issue:
- The order given to Constable Packer was an order toperform a statutory duty (see Section 57 of the Police Act)at a specific geographic location. The order was to keep thepeace and prevent the commission of offences at or near theMorgentaler Clinic. There is no question but that the orderwas lawful and that Constable Packer refused to perform it.The issue then is whether Constable Packer had a lawful excuse for refusing the duty.
The [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html):
- It is argued on behalf of Constable Packer that theorder in question contravened two rights enumerated in theCharter. Those are the rights enumerated in Section 2(a) andSection l5(l).
"2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
15(l)Every individual is equal before andunder the law and has the right tothe equalof protectionlaw and equalbenefit the without discrimination and, in particular,without discrimination based on race, national or ethnic origin,colour, religion, sex, age or mentalor physical disability."
There is a preliminary issue concerning the jurisdiction of this tribunal to deal with charter arguments.
It is now clear that the Ontario Police Commission is not "a court of competent jurisdiction" within the meaning of Section 24 of the Charter and therefore does not have jurisdiction to provide a remedy for a breach. Cuddy ChicksLtd. vs. O.L.R.B. (l989), 70 O.R. (2d) l79 (C.A.).
Notwithstanding our lack questions might ariseSection 24, however, Charter of jurisdiction under nonetheless. In order for Constable Packer to be found guilty of the disciplinary offence charged it must be foundthat he disobeyed the lawful order without "lawful excuse".Thus it can be argued that if the order in questionconstituted a breach of one of Constable Packer's rights asenumerated in the Charter that that would give rise to alawful excuse for him to disobey the order.
Section 52 of the Constitution Act of l982 providesthat "The Constitution of Canada is the Supreme Law ofCanada, and any law that is inconsistent with the provisionsof the Constitution is, to the extent of the inconsistency,of no force or effect."
Section 32 of the Charter reads as follows:
"32(l) This Charter applies
(a) to the Parliament and government of Canada inrespect of all matterswithin the authority ofParliament including allmatters relating to theYukon Territory and Northwest Territories;and
(b) to the legislature andgovernment of each province in respect ofall matters within the authority of the legislature of each province."
The police force is a creature of a provincialstatute, The Police Act. The duty to keep the peace andprevent offences is a statutory duty (Section 57). The order is an order of the chief of police, through the chain ofcommand, to perform the statutory duty at a particularlocation.
The Charter applies to The Police Act, regulationsthereunder and the common law referred to therein: DolphinDelivery Ltd. (l986), 33 D.L.R. (4th) l74 (S.C.C.). In Harrison vs. University of British Columbia [l988], 2 W.W.R.688, the British Columbia Court of Appeal considered "theextent to which the Charter applies to the actions ofsubordinate bodies created and supported by government" (p.692):
Where ... the impugned act is the act of a bodyother than Parliament, the legislatures or theirexecutives, it will be subject to the Charter tothe extent that it bears a direct and definable connection to an act of Parliament, the legislatures or their executives, therebyestablishing an exercise of governmental power ...The state acting through a subsidiary agent shouldbe equally subject to the Charter as the stateacting directly.
It is common ground that the order impugned in thismatter was a "lawful" one. The "lawful" nature of the order resides in the fact that it was but a particular applicationof the general duty at law to preserve the peace effected by subject to that duty. particular officer amongst thosethe deployment of one The propriety of issuing orders downthrough a chain of command and the requirement that these beobeyed is "lawful" as an incident of the duties and responsibilities of constables per se. The authority toissue the order, the obligation to obey it, and the disciplinary sanction for failure to do so all arise at law. The Charter applies.
Having characterized the order and its breach as wehave above we find that there was no breach of any rightenumerated in the Charter. Even if there were such a breach,the "order" herein, bearing a direct and definable connectionto the statutory duty, constitutes a matter of law and isthus embraced within the saving provision of Section l:
"1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only tosuch reasonable limits prescribed by lawas can be demonstrably justified in afree and democratic society."
The [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html):
The Ontario Human Rights Code prohibitsdiscrimination on certain specific grounds. In addition to that, it makes provision for what has been called "adverseeffect", or "constructive" discrimination. This is said to arise when the defacto consequence of a non-discriminatorypolicy or order is in fact discriminatory with respect to oneof the prohibited grounds.
During argument we were advised that ConstablePacker had made an application to the Human RightsCommission. Counsel sought to introduce the record ofproceedings before that Commission. We believe that such would add nothing to the case and since counsel for themunicipality objected, we held that the record was inadmissible and refused to receive it.
The Human Rights Code l98l prohibits discriminationbecause of race, ancestry, place or origin, colour, ethnicorigin, citizenship, creed, sex, age, marital status, familystatus or handicap in Part (i). Section l0 of the Human Rights Code l98l provides as follows:
"10(l) A right of a person under Part Iis infringed where a requirement,qualification or consideration isimposed that is not discriminationon a prohibited ground but thatwould result in the exclusion,qualification or preference of agroup of persons who are identified by a prohibited groundof discrimination and of whom the person is a member, except where,
(a) the qualificationrequirement,
or consideration is a reasonable and bona fide one in the circumstances; or
(b) it is declared in this Act that to discriminate because of such groundis not an infringementof a right."
"(2) The Commission, a board of inquiryor a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is amember cannot be accommodated without undue hardship on the person those for accommodating responsible needs,considering the cost, outside sources of funding, if any, andhealth and safety requirements, ifany."
In order to establish a "lawful excuse" within the meaning of the Code of Offences, based upon the Human RightsCode, the appellant must establish a prima facie case ofdiscrimination within the meaning of the Code; that he gavereasonable notice of his concern to the force; that the forcewas under a duty to accommodate Constable Packer; and thatthe force could have accommodated Constable Packer without "undue hardship".
To establish discrimination within the meaning ofthe Code, Constable Packer must rely upon the word "creed".While Constable Packer was not a Roman Catholic at the time of these events it is nevertheless clear that he adhered to at least that portion of the creed of the Roman Catholicfaith dealing with abortion. Assuming that he can be said tobe a "member" of such a group, this question then becomes"was he ordered to do something which would contravene thecreed".
The duties of a constable flow from the common law,the common law duties and obligations being supplemented bycertain statutory obligations. The primary function of aconstable remains the preservation of the Queen's peace.
Section 57 of the Police Act provides, inter alia,that "the members of police forces appointed under Part II,except assistants and civilian employees, are charged withthe duty of preserving the peace, preventing robberies andother crimes and offences, ...". Upon his appointment to theOffice of Constable David Packer swore an oath. That oath is found in Section 66 of the Police Act and reads as follows:
"I, do swear that I will well and trulyserve her Majesty the Queen in the Office ofConstable for the of without favour or affection, malice or ill will; and that, to thebest of my power I will cause the peace to be keptand preserved and prevent all offences against thepersons and properties of her Majesty's subjects;and that, while I continue to hold the said office,I will, to the best of my skill and knowledgedischarge all the duties thereof faithfullyaccording to the law. So help me God."
It is the duty of a constable to treat all personsequally. Personal conscience is, of course, unobjectionableand indeed desirable but cannot be permitted to effect duty.
One's conscience may dictate that certain human conductought to be made illegal or that certain prohibited humanconduct ought to be lawful. But a constable's duty is owedto the law and must be performed without regard to conscience. This is what is meant by "professionalism" inthe police service and is characterized by impartiality andobjectivity.
Constable Packer believes that abortion is an "unspeakable crime", that it is "the murder of an innocentchild, the gift of God". His mind dwelled upon what hebelieved was happening in the Clinic. He believed that bypatrolling outside, in uniform, he was "guarding" the Clinicand thus making possible the performance of abortions inside.
And there his analysis stopped.
Canada is a country governed by the rule of law.In the present case the presence of the police was essentialto preserve the peace and prevent the commission of offences. Without it the question of the operation of the MorgentalerClinic might well have been settled by violence. In Canada such issues are to be settled by discussion, debate and,ultimately, the rule of law. It is often the police presencewhich makes this possible.
Constable Packer was not ordered to assist in the performance of an abortion. His position is not analogous tothat of one who is ordered to work on the Sabbath day or to aJehovah's Witness who is ordered to assist in providing bloodtransfusions.
We need not consider whether the Human Rights Codehas any application to the fundamental duty of a constable tokeep the peace and prevent the commission of offences becausein this case there is no nexus between Constable Packer's belief regarding abortion and the duty he was ordered toperform.
It is not possible for the management of a policeforce to relieve a constable of what we see as the basic and fundamental duty of that office. At most, the management ofthe force could have changed the geographic location whereConstable Packer would be called upon to do his duty. If Constable Packer's creed is offended by a constable's duty tokeep the peace and prevent offences, then he is unable toserve in the Office of Constable.
In our view the appellant has failed to establish aprima facie case of discrimination within the meaning ofSection l0 of the Human Rights Code so as to establish alawful excuse for disobeying the order.
If we are in error in holding that Constable Packerhas failed to establish a prima facie case of discriminationwithin the meaning of Section l0 of the Human Rights Code,the next question to arise would be whether he has givenreasonable notice so as to trigger, on behalf of the force,the duty to accommodate. Constable Packer had manyopportunities to raise his objection before noon hour onApril 8th, l987. His first clear opportunity to raise theobjection arose in August l983 when he was assigned to No. l4Division. The opportunity arose again on January 3rd, l986when the Deputy Chief attended l4 Division to address themembers of that division on this very specific issue. He again had opportunities in March l986 when he was assigned tofoot patrol and on March 4th, March 8th, and July 22nd whenhe was in fact on duty in the area of the Morgentaler Clinic.
He had another opportunity on the occasion when he performeddaylight patrol in a vehicle.
In our view raising his objection at the very last moment, as he did, cannot be said to be reasonable notice forthese purposes.
We hold that the order was lawful, that it wasdisobeyed, and that Constable Packer had no lawful excuse.The appeal from conviction is dismissed.
Penalty:
Constable Packer was ordered to resign within sevendays or, failing that, to be dismissed. This is clearly anappropriate penalty for this offence; the only matter to beconsidered is whether there is some mitigating cause whichwould justify a lesser penalty.
There are two matters which we wish to consider with respect to mitigation. First the question of ConstablePacker's service record, and secondly, the likelihood of hisconduct being repeated.
Constable Packer had been a member of the force for almost 10 years, and a member of a British police force forapproximately 2 l/2 years before that. He has a good servicerecord and has been, except for this one occasion, a creditto the force and to the profession. This is the first time he has fallen afoul of the discipline process.
With respect to the likelihood of his conduct beingrepeated we note particularly that at Page 289 of thetranscript Constable Packer indicated quite clearly that infuture he would refuse such duty in "precisely the samecircumstances".
Constable Packer was asked what his reaction would be if he were ordered to patrol in the area of TorontoWestern Hospital. This hospital is within the jurisdictionof No. l4 Division and it is common knowledge that abortionsare performed in that institution. At page 288 of thetranscript Constable Packer is asked with respect to hisknowledge about abortions being performed in that hospitaland his answer was "I'm told they do. I believe they do."Then the following ensued:
"Q. How do you feel about, if necessary,guarding the Toronto Western Hospital inthe fact that they do abortions there?
A. The entire hospital?
Q. Whatever the situation may arise that youmay have to be outside there and guard itrelative to pickets, pro-abortion, pro-life. Would you do your duty there?
A. I would go to that situation and weigh it against my informed Catholic conscience.
If my conscience told me I could do itunder that circumstance, I would, butI'll tell you right now, abortion is justas wrong whether it's within the criminalcode or outside of it. It's wrong.Wrong is wrong is wrong."
Until just before the imposition of penalty itappeared that Constable Packer would refuse duty in future insimilar circumstances. During submissions with respect topenalty, and before its imposition, counsel for Packer, Mr.Black, obtained a brief recess during which he spoke with theprosecuting officer, Staff Inspector Addison, and returned tosay, amongst other things, "Constable Packer agrees that hewill obey all lawful orders unless he has a lawful excuse notto" (Page 480). There was included with that statement an undertaking on behalf of the prosecuting officer that pendingan appeal of the conviction Constable Packer would not beassigned to patrol at the Morgentaler Clinic. We take all of this to mean that if it is finally determined that underthese circumstances Constable Packer does not have a lawful excuse for disobeying the order that he is willing to obeysuch orders.
Having said all that it is still not clear howConstable Packer may behave should he face a similar problemin future. On the evidence available, however, it cannot besaid with certainty that he will repeat such conduct nowknowing that he has no lawful excuse for doing so.
We are also agreed that the Presiding Officer didnot give sufficient weight to Constable Packer's record ofservice. Finally, we are concerned with the followingcomments made by the Hearing Officer immediately prior toimposing penalty.
At Page 484 of the transcript the Presiding Officerseems to treat Constable Packer's refusal as some form of arrogance or intentional insubordination. He says, amongstother things, "the detail should in no way have violated yourreligion or your conscience". He may well have been able tofind that the detail did not violate Constable Packer's religion but we fail to find his jurisdiction to say that itought not to have bothered Packer's conscience. The detail very clearly did offend Constable Packer's conscience andwhether one agrees or disagrees with his position he isentitled to have his position respected.
The Presiding Officer made one other comment whichgives us some concern. Commencing at the bottom of Page 484he said "You are among a group of police officers today whoinsist on making their own rules and telling the force whatthey will or will not do whether or not it's their swornduty". We fear that the penalty imposed may have been effected by whatever extraneous matter lies behind thatcomment.
In our view the Presiding Officer gave insufficient weight to Constable Packer's record of service and insufficient consideration to the proposition put before him,on behalf of Constable Packer, by Mr. Black to the effectthat Constable Packer would do his lawful duty once thequestion whether he had a lawful excuse, based on this groundof conscience, to refuse the order was finally determined.
It is a matter of the first order of seriousness for a constable to refuse to keep the peace and prevent thecommission of offences. Even in these highly unusual circumstances the conduct demands a very substantial penalty.
While this offence is of the first order of seriousness we feel that, weighing all of the circumstances, that a penaltyone step short of dismissal is appropriate.
Accordingly, we allow the appeal from penalty,quash the penalty imposed by the Hearing Officer and orderthat Constable Packer be reduced in gradation of rank fromFirst Class Constable to Fourth Class Constable and that Section 4 of Regulation 792 govern his elevation to highergradations.
DATED THIS 15TH DAY OF FEBRUARY, 1990.
per ______________________________________ W.D. Drinkwalter, Q.C., Chairman