Provincial Constable T.W. Diebel v. Ontario Provincial Police, 1992 CanLII 12275

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

PROVINCIAL CONSTABLE T.W. DIEBEL

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: W.D. Drinkwalter, Q.C., Chairman Mary Lou Dietz, Member Patricia A. Monture-Okanee, Member

Hearing Date: Friday, May 8, l992

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

1. Constable Diebel appeals both the finding of guiltand the penalty imposed upon a charge of discreditableconduct. The particulars, as set out in the Charge Sheet,are:

"On October 20, l990, at approximately 0200 hrs.,while on duty as a member of the Ontario ProvincialPolice, you attended with Provincial Constable Stirling at a residence occupied by Debra Erb andGordon Keeso, l45 Reserve Street, Listowel. At this residence, you issued provincial offence notices to Erb and Keeso for disobeying a "don'twalk" sign witnessed at approximately 0l54 hrs thatdate in the Town of Listowel by Constable Stirling.You then issued an offence notice to Keeso for "having liquor displayed to public view" after youobserved him remove beer from a parked vehicle andtake it into a residence. You further advised Keeso he would be charged with breach of probation.

2. Given your knowledge of the persons involved, thenature of their contact with Constable Stirling andthe minor nature of the offences, your actions wereunnecessary and inappropriate."

The Facts:

3. On October 20th, l990, just before 2:00 He was

a.m. Constable J.J. Stirling was driving home from work.off duty, wearing civilian clothes, and driving his ownautomobile. Two pedestrians, Gordon Keeso and Deborah Erbcrossed the street in front of Stirling allegedly against atraffic light. Unpleasantries were exchanged by Stirling andErb. Both Keeso and Erb were well known to local law enforcement officers. They believed that Keeso was onprobation at the time. Erb had earlier been convicted of assaulting Constable Diebel and had been sentenced to threemonths. Stirling believed that both Keeso and Erb had beendrinking and described them as being "very close to intoxication".

4. Constable Stirling tried to locate a Listowel Townpolice officer, but without success, and returned to the OPPDetachment where he met Constable Diebel who was on duty.

5. Stirling and Diebel then drove to the Erb residenceand requested that another officer attend also. The intention was to deliver provincial offence notices for "jaywalking". Stirling justified the number of officers attending by saying " ... where there is a call at that timein the evening it does require two people to be there." Theyarrived at the Erb residence at approximately 2:00 a.m. and,apparently, as Erb and Keeso were just getting home. Unpleasantries were again exchanged.

The Charge:

6. The issue is not whether or not any of the chargeswere warranted or if convictions were subsequentlyregistered. The issue is not whether any other citizen wouldhave been charged in a similar situation. The issue is simply whether Constable Diebel acted in a way that is likelyto bring discredit upon the police force.

7. The charges could have been processed by the Listowel Town Police Force. The provincial offence noticescould have been delivered the following day. It was not necessary, or reasonable, for Constable Diebel to attend theErb residence at 2:00 a.m. for the purpose of delivering twoprovincial offence notices for two very minor infractions,knowing that both defendants had probably been consumingalcohol, and knowing that both defendants were hostile to thepolice in any event. Such an action invites hostility andcan easily lead to a breach of the peace. In the words of Constable Stirling " ... where there is a call at this timein the evening it does require two people to be there."

8. By failing to consider the factors involved indeciding on the appropriate course of action Mr. Diebelconducted himself in a manner that is likely to bringdiscredit upon the police force.

9. A police officer It is equally important thatimpartially at all times. must act objectively and police conduct be seen to be objective and impartial. We have no doubt that the conduct of Constable Diebel in this case would be seen by many people as being harassment.

10. For the above reasons the finding of guilt issustained and that branch of the appeal is dismissed.

Penalty:

11. In assessing penalty, one must consider Mr. Diebelas an individual in addition to the conduct in question. At the time of these events Mr. Diebel had been a member of the OPP for approximately four years.

12. Mr. Diebel argued this appeal personally and madeit plain to us that he still does not understand that hisconduct was inappropriate. Amongst other things he said "itwas not even on my mind whether or not she had beendrinking." And later he said "I didn't expect a confrontation".

13. It is difficult to believe that any police officercould expect to deliver two provincial offence notices to twopeople at their residence at 2:00 a.m. knowing that both hadbeen consuming alcohol without expecting a confrontation.But nevertheless that is the position that Mr. Diebel takes.

14. Mr. Diebel's lack of judgement and apparentinability to comprehend the character of the situation isindicative of a failure to learn from experience and caneasily give the appearance of discriminatory actions. This is inappropriate for a police officer.

15. For the above reasons the appeal from penalty isdismissed.

DATED THIS 29TH DAY OF MAY, 1992.

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