ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE T.P. KUNKEL
Appellant
-and-
ONTARIO PROVINCIAL POLICE
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman
Karl R. Fuller, Member
Hearing Date: December l4th, 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
Presiding Members:
W.D. Drinkwalter, Q.C., Chairman
Karl R. Fuller, Member
Appearances:
Michael Temple and Heather Hutchinson for the AppellantJohn Zarudny and Inspector Bryon C. Brown for the Respondent
Hearing Date: December l4th, l992
- Constable Kunkel had been found guilty of bringingdiscredit upon the Force by touching the breast of a femaleofficer. The penalty imposed was a demotion to the salarylevel of Probationary Constable. It is important to notethat the Adjudicating Officer did not purport to place Kunkelon probation again thus the demotion in effect relates onlyto his salary.
The Facts:
At the time of the incident Kunkel and the complainant, an officer with the Durham Regional PoliceForce, were attending the Ontario Police College as students.
They had previously met each other but had had no association. On the evening in question they met at the bar.
The complainant touched Kunkel's side and felt a roll of fatand teased him about it by saying "what is that?" Kunkel reached out grasped her left breast and said "what is that?"
At the time of the events Kunkel was a ProbationaryConstable; his appointment has since been made permanent.
The Appeal:
- Constable Kunkel appeals the penalty arguing thatit is too severe in light of the conduct. We were told that a Probationary Constable's salary is $30,587.00 and that whenthe appointment is made permanent the Constable works for sixmonths at a salary of $35,098.00 and for the next six monthsat a salary of $40,ll4.00. Thus the cost of demotion for one year is argued to be $7,0l9.00. The appellant argues that anappropriate penalty would be five days pay or ten days off.
Decision:
Although Constable Kunkel was on probation he hadbeen given two very good performance appraisals. It is argued on his behalf that mitigating factors include the factthat he was off duty at the time, had consumed an excessquantity of alcohol and that the conduct was out of characterfor him.
In our view the fact that he was off duty at thetime does not assist him. The fact that he had consumed too much alcohol weighs against him rather than in his favour.In our view the same charge, discreditable conduct, could bemade out by alleging an excess consumption of alcohol andusing the sexual assault as evidence of the effect of thealcohol consumption.
As we assess the situation this assault was not merely an offence to the individual complainant but is alsoan offence to women at large. It can readily been seen asdegrading to women generally and not merely to this oneindividual.
At trial the prosecution had argued for dismissaland Mr. Temple had argued that the event was not sufficientlyserious to terminate this young man's career, particularly inview of the performance appraisals which he had earned. The Hearing Officer accepted Mr. Temple's position and imposedthe demotion previously mentioned.
In our opinion the penalty imposed is the leastacceptable penalty for this conduct and accordingly theappeal is dismissed.
DATED THIS 11TH DAY OF JANUARY, 1993.
per W.D. Drinkwalter, Q.C., Chairman