ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE DAVID DEMPSEY
Appellant
-and-
WATERLOO REGION POLICE SERVICE
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman
Frank Marc D'Andrea, Member
Hearing Date: Monday, June 24, 1991
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 Marc D'Andrea, Member
Appearances:
Eric Hafemann for the Appellant
Donald C. Fisher for the Respondent
Hearing Date: Monday, June 24, 1991
- The appellant appeals conviction and penalty withrespect to three counts contrary to the Schedule of Offences.The penalty imposed was immediate dismissal.
The Offences
Count l:
Discreditable Conduct in that he did assault a member of a police force.
Count 2:
Discreditable Conduct in that he did use profane, abusive orinsulting language to another member of a police force.
Count 3:
Discreditable Conduct in that he did act in a disorderlymanner or in a manner likely to bring discredit upon thereputation of the police force.
The Facts:
At approximately ll:00 p.m. on May l2, l990 theappellant was off duty, on vacation and watching television.
He had consumed seven or more bottles of beer during theevening and then received a telephone call from a somewhathysterical acquaintance telling him that his l5-year old sonhad been assaulted and arrested by the Hamilton-WentworthPolice Force and that his son would not be released right away. Shortly thereafter Constable Larson of the Hamilton-Wentworth Police Force called to tell Dempsey that his sonhad been arrested and released. Both Dempsey and his wifespoke with the officer on the telephone. Both were angry andyelled at the officer. The Dempseys were driven to Hamiltonby their eldest son.
Dempsey's son, Kevin, was l5 years of age, 5' 5"tall and l30 lbs. He wore long hair to his shoulders and itappears that that fact had caused him problems in the past.It is said that he had been assaulted, taunted, and mistakenly arrested for shoplifting because of his appearance.
When the Dempseys arrived at the station they weremet by Sergeant Andrew at the front desk. Kevin was presentand exhibited apparent injuries to his nose and lip. The Bocks had been with Kevin earlier in the evening and werealso present in the reception area
Both Mr. and Mrs. Dempsey were loud and aggressive,both used profane and abusive language. Both Dempseys weresmoking and when advised that this was a smoke free buildingthey resisted the request to extinguish the cigarettes untilthey were threatened with being ejected as trespassers.
The appellant directed more abusive language at theSergeant. Eventually they were taken from the reception areainto an office.
The alleged assault occurred in the private officeand was a pushing or shoving by Dempsey of the Sergeant.
The alleged profanity and abusive, insultinglanguage occurred both in the public reception area and inthe private office.
The Appeal:
- With respect to the convictions the appellantconcedes guilt on Count 2 but argues with respect to Count lthat he lacked the necessary intent to commit the offence ofassault, and with respect to Count 3 argues that this Countis a duplication of Count 2 and that both convictions cannotstand.
Count l:
It is conceded that Dempsey had been consumingalcohol earlier in the evening to such an extent that hisjudgement, at least, was impaired by alcohol. It is similarly conceded that by the time Dempsey arrived at thepolice station (at least one hour after having received the telephone calls) that he was very angry and upset.
The crime of assault, as defined in the CriminalCode, is a crime of "general intent". The evidence falls far far short of indicating that Dempsey's mental condition,effected by alcohol and emotion, was such that he would beincapable of forming the "general intent" to apply force toSergeant Andrew.
The appeal fails on this ground.
Counts 2 and 3 - Duplicity:
Count 2 is a charge of discreditable conduct by theuse of profane, abusive and insulting language. The particulars allege that "you shouted profanities, abusive andinsulting language, namely the words fuck, fucking and asshole towards Sergeant Thomas Andrew in the presence ofother Hamilton-Wentworth Regional police officers.
Count 3 is a charge of discreditable conduct byacting in a disorderly manner or in a manner likely to bringdiscredit upon the reputation of the police force. The particulars allege that "you were shouting and swearing inthe presence of members of the public using the words fuck,fucking and asshole."
With respect to Count 3 there is no evidence thatDempsey was swearing. There is, however, ample evidence thatDempsey was shouting and using profanity.
The offences in Counts 2 and 3 were committed at the same time and by the same acts. These Counts are not separated by location or by time. The only distinctionbetween the Counts is that Count 2 alleges that the languagein question was directed to a member of a police force andCount 3 alleges that the "disorderly manner" was the use ofthe same language by shouting in the presence of members ofthe public.
It is conceded that the conduct in questionconstitutes the offence alleged in Count 2. There is no doubt but that the quality of that conduct is exacerbated bythe fact that it occurred in front of members of the public.
While it may be argued that the alleged "members of thepublic" were not disinterested parties nevertheless, theywere not members of either police force and accordingly were,at law, members of the public.
Can these allegations be seen as two separateoffences? We think not. In our view the rules of natural justice demand that one not be convicted of two offencesbased upon the same delict. Based upon the facts in thiscase we can see no distinction between Counts 2 and 3 that would support both convictions.
Accordingly, Count 3 is struck as being duplicitouswith Count 2.
Penalty:
The appellant argues that the penalty of immediatedismissal was far too severe under the circumstances and that the appropriate penalty would be one of a reduction in rankfor a short period of time.
On May l2, l990, when these events occurred,Constable Dempsey had been a police officer for l9 years.During his l9 years of service he had been convicted ofdisciplinary offences only twice. The first conviction was in l979 and the second in l989. The l979 conviction involved a misuse of his badge while off duty and the use of abusivelanguage; the l989 conviction was for neglect of dutyrelating to the failure to advise a citizen that his stolencar had been recovered.
The weight to be given to a prior disciplinaryconviction lessens with the passing of time. The first conviction was some ten years prior to the second convictionand ll years prior to the events here in question. We feel it appropriate to give the l979 conviction very littleweight. The l989 conviction must be given some weight, butthe weight must be appropriate to the seriousness of thatoffence and not more.
During his l9 years of service Constable Dempseyhad suffered ten "unfavourable incidents" and six "favourable incidents".
In imposing penalty the hearing officer reliedsignificantly upon Constable Dempsey's attitude. At Page 336of the transcript he said "the attitude identified in hisevaluations is a prominent factor in this case."
In our opinion the Hearing Officer did not giveappropriate weight to the significance of alcohol in the casebefore us. It was conceded that on the night in questionConstable Dempsey was impaired by the consumption of alcoholand that undoubtedly contributed to his behaviour. While not conceding that Constable Dempsey suffers from alcoholism theappellant nevertheless suggested that Dempsey was sufferingfrom some financial problems in his life and that on occasionwhen he was drinking he drank to excess. It is noteworthythat Constable Dempsey joined Alcoholics Anonymous in Octoberof l990 and apparently has been doing well in that respect.
The Hearing Officer gave significant weight to whathe considered a lack of remorse and a lack of credibility.
The lack of credibility is found in the evidence thatConstable Dempsey gave at his trial. The finding of a lackof remorse conflicts, however, with the fact that ConstableDempsey had joined Alcoholics Anonymous and the fact thatwhen he first explained his conduct to Staff Inspector WayneHodgkiss the following transpired:
Hodgkiss: "I identified myself and stated, Iunderstand you wanted to speak with the Duty Officer, David."
He replied "Yes I did staff, I did something stupidlast night. I got myself arrested and charged with assaultpolice."
The conduct of Constable Dempsey on the night ofMay l2, l990 is unacceptable for a police officer and isinexcusable. The penalty of dismissal is appropriate,subject to any mitigating circumstances.
In the present case we believe that the HearingOfficer did not give appropriate weight to the mitigatingcircumstances. Constable Dempsey had been an officer for l9years and had a good, although not unblemished, record.While his performance may have fallen below average onperformance appraisals it must be remembered that when onepoints to an average one points to conduct which is betterthan some and not as good as others. If by "average" we meanmedian, then the fact is that the performance of 50 per centof us is below average and the performance of 50 per centabove. Constable Dempsey's record of performance is, webelieve, acceptable. We also note the suggestion thatConstable Dempsey has not been performing up to his abilityand the suggestion that he has the capacity to be anexcellent police officer.
It is our opinion that the Hearing Officer erred inthe weight he gave to what he perceived to be a total lack ofremorse.
Having weighed all the circumstances of this casewe believe that the case does not justify the termination ofa l9 year career.
The appellant argues that the appropriate penaltyis one of a reduction in rank for a short period of time.With this we disagree. The conduct of Constable Dempsey wasabominable. Despite the seriousness of the conduct, becauseof the mitigating factors, it is our view that the appropriate penalty is one just short of dismissal.
For the above reasons the appeal from penalty isallowed, the order for dismissal is struck, we order thatConstable Dempsey be reduced in gradation of rank from First Class Constable to Third Class Constable and that his eligibility for re-classification be in accordance with Section 4 of Regulation 792.
DATED THIS 19TH DAY OF JULY, 1991.
per ______________________________________W.D. Drinkwalter, Q.C., Chairman