ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE J. TRIMM
Appellant
-and-
DURHAM REGIONAL POLICE FORCE
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman
Frank M. D'Andrea, Member
Hearing Date: Thursday, October l7, 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 Members:
W.D. Drinkwalter, Q.C., Chairman
Frank M. D'Andrea, Member
Appearances:
Frederick Rowell, Q.C., for the Appellant David J.D. Sims for the Respondent
Hearing Date: Thursday, October l7, l99l
Decision:
- Constable Trimm was convicted of neglect of dutyand was reprimanded. He appealed the conviction to the Boardunsuccessfully and now appeals the conviction to the Commission.
The charge is in these words:
"You stand charged with neglect of duty, that is tosay: That you did while on duty leave your assignedpatrol area without due permission or sufficientcause to wit: On Sunday, November 28, 1982, atapproximately 0335 hours while on duty having beenassigned to Beat 17 Foot 1 you were checked bySergeant E. Forgette in cruiser #17-137 on TorontoAvenue, Oshawa, a street not within the boundariesof 17 Foot 1 area, Contrary to Section 1, sub-section (c) paragraph (iii) Code of Offences underRegulation 791 made under the Police Act RevisedStatutes of Ontario, 1980, Chapter 381 as amended,and did thereby commit a major offence."
The Facts:
On Saturday night November 27, 1982 Trimm commencedduty at 11:00 p.m. and was scheduled to work until 7:00 a.m.on November 28th. He was assigned to foot patrol in aspecific area of the City of Oshawa.
Constable Trimm took his scheduled lunch break from 2:00 to 2:45 a.m. at #17 Division Oshawa in the company ofConstable Bell. During that time Constable Trimm did not eathowever and when he left #17 Division he was hungry. Trimm left with Constable Bell in the marked patrol car that Bellwas driving . They stopped at a fast food outlet and astheir order was being delivered to the car Bell was dispatched by radio to a "fairly violent domestic" at theClover Leaf Motel. That motel was situated outside Trimm's patrol area.
The Offence:
In order for the offence to be made out it must be established that Constable Trimm was out of his assignedpatrol area "without due permission or sufficient cause". It is conceded that Trimm was in fact out of his patrol area andwithout permission. The question then becomes whether Trimmhad "sufficient cause" to leave his patrol area.
Whether the cause was "sufficient" requires thedetermination of whether Constable Trimm honestly believedthat his attendance at the motel was reasonable. The Trials Officer found that this was so. In addition, however, thereis an objective element to the test. One must not use hindsight in determining whether or not the attendance at thescene was reasonable. It may in fact turn out to have beengrossly superfluous but that is irrelevant. What is relevant is the information available to Trimm at the time the decision was made. The appellant argues that, based on theinformation given to him, his decision was a reasonabledecision and therefore he had "sufficient cause" to leave his own patrol area.
The reason for the creation of this offence is that it is essential that the control mechanism of the force be aware of the location of all patrol officers at all times.Thus the offence is worded "without due permission or sufficient cause". In our reading of the offence it appearsto us that "sufficient cause" must be not only adequate tojustify the officer's attendance outside the assigned patrolarea but also must be adequate to justify his failure tonotify control. In the case before us Constable Trimm, whilehe was making his decision, was riding in a patrol car drivenby another officer. He had available to him the personalradio that he was carrying and also the radio in the patrol car. There was adequate opportunity for Trimm to adviseControl that he was leaving his patrol area and the reasontherefore. Whether or not the "sufficient cause" raised as a defense by Constable Trimm is adequate to justify his attendance at the motel it is not adequate, under thecircumstances, to justify his failure to notify Control.
For the above reasons the appeal is dismissed.
DATED THIS 21ST DAY OF NOVEMBER, 1991.
per ______________________________________ W.D. Drinkwalter, Q.C., Chairman