Constable Gerald E. McDougall v. Brockville Police Service, 1993 CanLII 14138

1Constable McDougall was convicted of one count ofneglect of duty. The penalty imposed was six days pay butwhen it was discovered that that penalty was in violation ofSection 61(1)(e) the penalty was reduced to five days pay.

2In June of 1991 Constable McDougall had taken acomplaint from Pamela McBride that her teenage son had stolen$200.00, some keys, the registration and insurance certificates belonging to a motor vehicle and a bank cardfrom her. The charge relates to the manner in whichConstable McDougall conducted the investigation, reported theresults of his work, maintained his notebook and treated thecomplainant.

3There is no transcript available for us to considerin this case. The trial was relatively lengthy and ConstableMcDougall feels that the cost of a transcript is out ofproportion to the seriousness of the situation.

4Constable McDougall argued many issues but unfortunately they relate to the weighing of evidence. Without a transcript we are unable to assess the way in whichthe hearing officer, Inspector Wayne Burke of the GloucesterPolice Service weighed the evidence. His reasons for decision, however, are some twenty pages long and outline theevidence in some detail. In particular Constable McDougallcomplains that the hearing officer accepted the evidence ofother witnesses over his own. This is a clear issue of credibility and in order for an appeal body to overturn afinding of credibility there must be very clear evidence oferror. Without a transcript there is utterly nothing we cando about this issue. complains that the Staff is that Constable McDougall

5Another particularSergeant who investigated the neglect of duty charge was biased against McDougall becauseof some previous dealings that these two persons had had.This again is a matter of credibility which we are unable toassess without the assistance of a transcript. With respectto this allegation that Staff Sergeant Berube was biasedagainst Constable McDougall we note that the hearing officerwas brought in from another police force. For what reason we do not know but obviously a member of another police forcewould be in a better position to assess this issue ofbias/credibility than would be some member of the BrockvillePolice Force who would know both parties.

6For the above reasons we are unable to find anyreason to overturn the finding of guilt.

Penalty:

7With respect to penalty Constable McDougall pointsout that the initial penalty imposed (six days) was more thanthe five day maximum permitted by Section 61(1)(e) of thePolice Services Act. The Police Services Act is a relativelynew piece of legislation and it ought not to surprise anyonethat some of us are not yet familiar with the details of theAct.

8The second argument that Constable McDougall raiseswith respect to penalty is that he was offered an informalprocedure with a penalty of admonishment. Having exercisedhis right to a trial he feels that the penalty imposed attrial ought not to be more than the penalty he was offeredinitially. This disparity in penalty is one of the risks ofrunning a trial. When the evidence is taken under oath, andsubjected to cross-examination, the offence can appear to bemuch more serious than was originally thought.

9In our opinion the penalty imposed by InspectorBurke is reasonable and we can find no ground to interferewith it.

10For the above reasons both branches of the appealare dismissed.