ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
SERGEANT R.M. GRUZUK
Appellant
-and-
ONTARIO PROVINCIAL POLICE FORCE
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman
Ruth K. Corbett, Member
Hearing Date: Tuesday, September l0th, 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., ChairmanRuth K. Corbett, Member
Appearances:
Michael Temple for the Appellant
John Zarudny
Inspector John Mitchell for the Respondent
Hearing Date: Tuesday, September l0th, l99l
Sergeant Gruzuk was convicted of neglect of dutycontrary to Section l(c)(i) of the Code of Offences in thathe did "without lawful excuse, neglect or omit promptly anddiligently to perform a duty as a member of the OntarioProvincial Police Force ..." The particulars are:
On September 4th, l989, you attended a socialfunction at the Wasaga Beach Snowmobile Club House.
You are off duty at this time. During theevening, Provincial Constable J.M.A. McMahon #7243,a policewoman who had worked at the Wasaga Beach(S) Detachment during the summer, complained to youthat she had been grabbed in the groin area of herbody by Provincial Constable B.J. Hollywood #7l40,a male member of the summer detachment. Instead of receiving this serious allegation and diligentlyinquiring into its authenticity, you told McMahonto "forget it" and "just try and have a good time."
The matter was prosecuted as a minor offence.Gruzuk was convicted. The penalty was a forfeiture of 2 dayspay.
Sergeant Gruzuk appeals both the conviction and the Penalty.
The Conviction:
The first ground of appeal argues that the chargeought to have been dismissed at the conclusion of theprosecutor's case because the evidence "clearly establishedthat a complaint had not been made to the appellant."
At the conclusion of the prosecutor's case therewas ample evidence on which the Hearing Officer could findthat Constable McMahon told Sergeant Gruzuk that she had beenindecently assaulted by Constable Hollywood. Although shedid not intend to make a formal complaint against Hollywood,nevertheless the evidence, at that point, would support afinding that McMahon had told the Sergeant that she had beenindecently assaulted by Constable Hollywood and the Sergeantdid nothing.
The next four grounds of appeal relate to findingsof fact by the Force Adjudicator. It would seem clear beyondany doubt that Constable Hollywood grabbed Constable McMahonin the crotch; he subsequently pleaded guilty to a chargebased upon that allegation. The only issue is whetherConstable McMahon told Sergeant Gruzuk about the incident.She claims she did. He claims she did not.
The Force Adjudicator determined the issue byfocussing upon the question of credibility as between McMahonand Gruzuk. It is argued by the appellant that the TrialsOfficer ought to have taken into account the totality of theevidence.
Having examined the evidence, and in particularthat of Sergeant Gruzuk and Constable McMahon it is clear tous that there was ample evidence on which In addition, the Force Adjudicator could make the finding that he did.he had the benefit of seeing and hearing the evidencepresented and thus was better able to form an opinion oncredibility than any appellate tribunal could be. At Page 7of his Reasons for Decision the Force Adjudicator had this tosay:
"The case against Sergeant Gruzuk hinges on whethercertain things were said or not said, depending onthe testimony of the two main witnesses. I must determine the credibility of the witnesses anddecide which one is the most believable and whether certain events actually occurred. In closelyobserving the witnesses as they testified I have nohesitation in accepting the testimony of P.C. McMahon ...
I cannot accept Sergeant Gruzuk's testimony thatthey talked of other incidents involving P.C.
McMahon and not the most serious against her."
- Clearly the Force Adjudicator directed his mind tothe issue and made a very specific finding with which we arenot prepared to disagree.
The appeal from conviction is dismissed.
Penalty:
There are two grounds of appeal from penalty. The second of those is that the Force Adjudicator failed to givesufficient weight to character evidence called on behalf ofthe appellant. We disagree. It is our view that the Force Adjudicator gave appropriate weight to the appellant'scharacter and record of service.
The first ground of appeal from penalty is that theForce Adjudicator "erred in imposing a penalty that exceededthe corrective action offered to the appellant throughinformal discipline." At the stage of informal disciplinethe appellant was offered a penalty of l0 hours to bededucted from his overtime bank or statutory holiday bank.
The informal discipline program of the OntarioProvincial Police Force includes the following provision:
"247.l where a member rejects the proposed corrective action and a formal Police Act charge is initiated, a more severe corrective action than that originally selected by the District Commander shall not be proposed."
The penalties available at the conclusion of thetrial are those laid out in Regulation 79l. The discretion provided by the Regulation cannot be amended, modified oraltered by an agreement between the Force and its members andwe find that there has been no intention to do so. The keyword in such Section 247.l is "proposed". The word is not "imposed".
The very foundation for the existence of an informal discipline program is the provision of a lightpenalty in return for avoiding the necessity of a formaltrial. It very often happens that a case viewed throughreports and written statements is not the same as the casepresented by way of oral testimony from live witnesses. The character of the events and the details of the event are more clearly established by evidence than by written reports. The Force Adjudicator directed his mind to this issue. At Pagel5 of his Reasons he said:
"The evidence, in my opinion, disclosed a much moreserious offence than might have been apparent tothe Discipline Committee, in offering that sentence... where evidence is taken the case may be muchmore serious or much less serious than that allegedtowards the Discipline Committee, who make a decision as to appropriate penalty."
The penalties available to the Force Adjudicatorare those set in Regulation 79l. In our opinion the penaltyimposed was appropriate.
We wish to note that there is no suggestion thatSergeant Gruzuk was mislead into believing that if he optedfor a trial the penalty could not exceed that which had beenoffered through the informal discipline process. In his testimony in chief, at Page l39 of the Transcript, he said "Ihad a chance to bail out and I didn't ..."
For the above reasons the appeals are dismissed.
DATED THIS 23RD DAY OF SEPTEMBER, 1991.
per ______________________________________W.D. Drinkwalter, Q.C., Chairman