ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
EDWARD KING
Appellant
-and-
THE MUNICIPALITY OF METRO TORONTO POLICE SERVICES BOARD
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman Raymond G. Leclair, Member
Hearing Date: Thursday, December l9, 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 Raymond G. Leclair, Member
Appearances:
Robert B. McGee, Solicitor for the Appellant George S. Monteith, Solicitor for the Respondent
Hearing Date: Thursday, December l9, l99l
This is an appeal from the decision of the Board dated September 5, l988 dismissing the appeal of the appellant from his conviction on a charge of discreditable conduct and the sentence of resignation or summary dismissal imposed by the Trials Officer on April l9, l989.
The particulars of the charge, as set out in the Charge Sheet, are:
"Being a member of the Metropolitan Toronto Police Force, attached to No. 4l Division, at about 6:40 p.m., Tuesday, October 20, l987, you were driving a l980 Buick Riviera, Ontario Licence YZZ529, South on Don Mills Road.
At the intersection of Don Mills Road and Overlea Blvd., a Honda Accord driven by a female, one Bernadette Small stopped for the red light in the passing lane, you pulled up alongside the Honda Accord in the left turn lane. You commenced waving your arms and shouting at the said Bernadette Small through the open right window of your automobile, causing her to open her automobile window to hear what you were shouting about.
At this time you shouted at Bernadette Small, "If you do that again, I'm going to pull your cunt up over your ears." "You drive like I fuck; all over the place."
Your actions were such that they were likely to bring discredit upon the reputation of the Police Force."
The appellant has been an officer since April 25, l972, although he has not worked, due to an injury, since August 5, l983, his wages ceased on October 22, l984 and he has exhausted all sick leave credits and worker's compensation benefits.
Mr. McGee briefly questioned whether the conduct of a 'non functioning' officer could bring disrepute to a police force. The Commission has long held the view that an officer's conduct, whether while on or off duty, may discredit a police force. Further, in view of the appellant's 'non functioning' status, Mr. McGee questioned the Commission's jurisdiction to hear this appeal. We concluded, that although the appellant was not on active duty at the time of the incident, as he was considered by all parties to be a police officer, his duty status does not interfere with our jurisdiction to hear this appeal.
Although Mr. McGee directed most of his effort to the question of penalty, he does, in fact, question the validity of the conviction. Our review of the evidence and the facts as found by the Trials Officer and confirmed by the Board clearly establish culpability and accordingly we confirm the conviction and dismiss this branch of the appeal.
Mr. McGee argued that in view of the circumstances of the incident, the complainant's use of language in response, her driving which he cited as a provocating factor, the appellant's length of service and commendations and the lack of identification as a member of the Force at the time of the incident, the penalty imposed was too severe. We were referred to several decisions to illustrate that this punishment was out of proportion to other analogous situations.
We cannot accept that the complainant's driving, as atrocious as it may have been, can be cited as provocation sufficient to mitigate the officer's conduct. In the Commission's view such driving is a reasonably common event which a police officer is regularly called upon to deal with.
The appellant, as a police officer, is fully aware of the legitimate methods available to deal with such lack of respect for the rules of the road. This is amply evidenced by his eventual charge of careless driving against the complainant. The Commission views this apparent loss of control by the appellant, arising from a driving incident, very seriously and questions his ability to carry on effectively as a police officer when he returns to active duty.
Each case must be decided upon its own facts and after reviewing all of the cases submitted by Mr. McGee as precedents to assess the severity of the penalty, we would distinguish all of them as none involved what we have found to be the salient feature of this incident - the loss of control by the appellant as a result of an everyday traffic infraction. The appellant could easily have instituted proper legal proceedings or even used his position to warn or chastise the complainant, but instead he unleashed this shocking and atrocious display.
Mr. Monteith argued that in view of the fact that the appellant instituted the altercation by approaching the complainant as described, his excusing his language as common parlance, the lack of an apology or any apparent remorse and the impact of the conduct upon the complainant, that the appeal should be dismissed entirely.
As a result of this incident, the officer was charged in the criminal courts with assault and mischief. Although we acknowledge that no apology was made, we accept Mr. McGee's suggestion that in view of the outstanding criminal charges an apology could not reasonably be expected.
We note in passing that the accused has been convicted of the criminal charges but has appealed those convictions to the Ontario Court of Appeal.
We note the Trial Officer's conclusion that the appellant's conduct was outrageous, insulting and shameful. We also note his conclusion that it cannot be imagined that the appellant would put on a uniform and deal with the public again as he has shown he does not have the self discipline or self control necessary to effectively perform his duties as a police officer. In the Armstrong decision, O.P.R. 79 this Commission said:
"We must assume that in imposing and confirming the punishment they (the Trials Officer and the Board) took into consideration all the elements in the theory of punishment, including the appellant's record and the good of the Force."
Nevertheless, in this case there is a serious complicating factor. The evidence before us relates only to the cause of the incident and the words spoken by the officer. Two criminal charges were also laid as a result of the same incident and this leads one to suspect that there is more to the incident than is apparent in this case. It appears from the admissible evidence that probably the officer did lose control of himself. If so, this conduct is indeed extremely serious and easily merits the penalty of dismissal. Without being privy to the entire incident, however, it would be dangerous for one to draw that conclusion. In order to assess the appropriate penalty, one must take into account the officer's entire conduct as it relates to the whole incident. This is not possible since the prosecuting authorities have elected to lay this discipline charge and await the outcome of criminal proceedings before dealing with the balance of the incident.
The penalty imposed by the Trials Officer may well be the proper penalty, but without the benefit of the other evidence it would be dangerous to so conclude. The penalty imposed, because of these restrictions, must be limited to the finding that Constable King brought discredit upon the Force by verbally abusing the complainant.
While the officer's conduct was atrocious, it must be viewed in light of his record of service over the ll years during which he was an active officer.
For the above reasons we find that the appropriate penalty must be severe, but must also give Constable King an opportunity to redeem himself. For these reasons we strike the penalty imposed and substitute an order that Constable King be reduced in gradation of rank from First Class Constable to Fourth Class Constable and that his re-elevation be in accordance with the governing regulation. The time periods mentioned in the regulation are, of course, not to run unless and until the officer is returned to duty. The lapses of time mandated by the regulation contemplate good behaviour while on duty.
DATED THIS 24TH DAY OF JANUARY, 1992.
per ______________________________________ W.D. Drinkwalter, Q.C., Chairman