Constable D.B. Bates v. Ontario Provincial Police, 1991 CanLII 11274

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended

BETWEEN:

CONSTABLE D.B. BATES

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: W.D. Drinkwalter, Q.C., Chairman

Hearing Date: Monday, October 2l, l99l

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 Member: W.D. Drinkwalter, Q.C., Chairman

Appearances: Michael Temple for the Appellant Dennis Brown for the Respondent

Hearing Date: Monday, October 2l, l99l

1. This appeal was heard by only one member of theCommission with the consent of the parties.

2. Constable Bates appeals both conviction and penaltyin respect of a minor offence. He was charged that:

"You did wilfully or negligently make a false,misleading or inaccurate statement pertaining toofficial duties, contrary to Section l(d)(ii) ofthe Code of Offences contained under Regulation 79lof the Police Act.

Statement of Particulars:

As a result of an incident involving the escape ofan arrested person which occurred on August 5, l989while you were on marine patrol of Chandos Lakewith Provincial Constable T.A. MacMillan you wererequired to submit a Duty Report. In this Reportand a subsequent Duty Report you stated ConstableMacMillan left the marine vessel and followed the arrested party, Paul Maier, to his cottage. You then stated Constable MacMillan remained outside the cottage while Maier went inside, then exitedthe front door and left in his car. You also verbally made the same statement to Staff SergeantJ.E. Watkin. This was a false and misleadingstatement. As a result of this statement, theForce Discipline Committee instructed you be exonerated and Constable MacMillan be censored for failing to take appropriate precautions to ensure his prisoner did not escape."

3. Constable Bates was convicted and the penaltyimposed was the forfeiture of five days leave. The chargehad been prosecuted as a minor offence and the penaltyimposed was the maximum penalty allowed for a minor offence.

The Facts:

4. On the evening in question, at about 9:00 p.m.,Constables Bates and MacMillan were on marine patrol inChandos Lake. They approached a boater for towing a waterskier without a proper lookout and decided that the operatorof that vessel, Paul Maier, had been consuming alcohol. A demand for a breath test was made, Maier refused to comply,and was arrested. Both boats proceeded to shore with thearrested party arriving in his own boat which was beingoperated by another person.

5. This case centres upon the conduct of the twopolice officers after their vessel had been brought to adock. Mr. Maier left the dock, entered what was apparentlyhis cottage with the announced intention of producingidentification, left through another door and drove away in amotor vehicle.

6. The Force Adjudicator found as a fact that Constable MacMillan had remained with the OPP boat and Constables Bates had followed the suspect towards the cottage. He further found that Bates had reported that he,Bates, had been the officer remaining with the boat and thatit was MacMillan who had custody of the prisoner.

7. At the Adjudication Hearing Constable Bates testified and repeated his earlier allegation that he had notleft the boat. He was disbelieved and convicted.

8. The appellant argues that a disciplinary convictionfor the offence of deceit requires proof beyond a reasonabledoubt. In support of that argument he refers to a decisionof the Ontario Police Commission in the case of Constables Weise, Ryan and Lang. This appeal was heard by W.T.McGrenere in February of l982. I have read that decision very carefully and, with respect, I disagree with Mr. Temple's interpretation of it. In my view that decisiondefines the disciplinary offence of deceit so as to include amental element, an intention to mislead someone. Mr. McGrenere holds that to prove the offence of deceit it isinsufficient to establish that an officer knowingly made afalse statement; that it is necessary to go further andestablish that the officer did so with an intention to mislead someone.

9. In this case the Force Adjudicator found, not onlythe false statement but further, that it was made with anintention to mislead and to avoid responsibility for havinglost custody of the prisoner. While the Force Adjudicatormakes no comment as to the degree of proof required tosustain a conviction, it is clear from reading his reasonsthat he was abundantly satisfied. The evidence given by theappellant was contradicted by MacMillan and other witnesses.

10. In rendering his amongst other things: decision

"I must accept the overwhelming evidence that P.C.MacMillan did not go up to the cottage, which wasclearly given by P.C. MacMillan, Dieter Maier,Terry Maier and Paul Maier. Since there is no possibility of error in this case I must find therewas an intention to deceive and P.C. Bates was successful in this, misleading Force management,which resulted in P.C. MacMillan being mistakenlysubject to discipline for allowing a prisoner toescape ...

... I must reject the testimony of P.C. Bates andfind him guilty of deceit.

11. There is clearly evidence to support the conclusions reached by the Force Adjudicator. Having readhis Reasons carefully it is clear that he was satisfiedbeyond the civil burden of proof and that his level ofsatisfaction met the test imposed by the Police Services Act"on clear and convincing evidence". One cannot find that the Force Adjudicator was satisfied "beyond a reasonable doubt"but, as I indicated earlier, that is not the test.

The appeal from conviction is dismissed.

Penalty:

12. With respect to penalty the appellant argues thatthe Force Adjudicator "erred in imposing a penalty thatexceeded the corrective action offered to the appellantthrough informal discipline." And that he "failed to considerand give sufficient weight to the character evidence presented on behalf of the appellant."

13. With respect to the first ground of appeal thisCommission has earlier decided that on a trial for a disciplinary offence the penalties available to the Adjudicating Officer are those provided by the legislationand that they cannot be limited by an informal disciplinaryprocess which offers some reduced penalty to an officer inreturn for an informal admission of misconduct. penalty IWith respect to the second ground of appeal from Adjudicator. can find no error committed by the Force

14. The facts in this case call for a penalty inexcess of that imposed and, in my view, the Force Adjudicatoracted appropriately in imposing the maximum penalty availableunder the procedure which had been chosen.

15. The appeal from penalty is dismissed.

16. On behalf of the Commission I want to express ouropinion that a mistake was made in the way this case wasprosecuted. It is our view that the charge ought to havebeen prosecuted as a major offence in order that the ForceAdjudicator could give serious consideration to the penaltyof dismissal.

DATED THIS 29TH DAY OF OCTOBER, 1991.

W.D. Drinkwalter, Q.C., Chairman