ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
DETECTIVE SERGEANT H.W. MORRIS
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: W. Michael Temple and Heather Hutchinson for the Appellant John Zarudny and Inspector Ken Christophersonfor the Respondent
Hearing Date: December l4th, l992
[1]. Sergeant Morris had been found guilty of a breachof confidence; the penalty imposed was the forfeiture of twovacation days. The charge was processed as a minor offence.
The Facts:
[2]. Sergeant Morris has a brother who practices law.His brother had a client who was well known to the police.The charge is that Sergeant Morris queried the CanadianPolice Information Centre and passed on to his brotherinformation that the client in question was thought to beviolent and dangerous and cautioned his brother in thatregard. The appellant appeals both the finding of guilt andthe penalty imposed.
The Argument:
[3]. First the appellant argues that the charge ought tobe dismissed for non disclosure. This arises from the fact that certain exhibits filed at the trial were documents which had been edited. The appellant argues that the DisciplineCommittee which had recommended the laying of the charge, andthe prosecution of the charge as a minor offence, had hadaccess to the unedited documents.
[4]. As we understand the function of the DisciplineCommittee, it is to review allegations of misconduct and makerecommendations with respect to discipline. In our view whatever information may have been available or indeed usedby that Committee is not relevant to the conduct of the trial.
[5]. The appellant relies first upon Section 8 of theStatutory Powers Procedure Act. That Section is as follows:
"8. Where the good character, propriety ofconduct or competence of a party is anissue in a proceeding, the party is entitled to be furnished prior to thehearing with reasonable information of anyallegations with respect thereto."
[6]. In our view the particulars as set out in theCharge Sheet are a sufficient answer to this requirement.
[7]. The appellant next argues the case of Cwinn and theLaw Society of Upper Canada 1981 CanLII 1780 (ON CA), 28 O.R.(2d)6l. This matter was heard in the Divisional Court and dealt with the disbarment of a solicitor for sexual impropriety. The court in that case pointed out that such proceedings as this need not meetall the technical rules of criminal proceedings and indicatedthat the matter to be addressed is the fairness of the hearing, and particularly the avoidance of any element ofsurprise. It is not suggested to us that there was anysurprise in this case or indeed any unfairness. In our view this decision does not assist the appellant.
[8]. The appellant next refers to a decision of theSupreme Court of Canada in William B. Stinchcombe v.R.[l992]lW.W.R. 97. In this case the Court dealt with the duty on the Crown in prosecuting indictable offences todisclose all material evidence. The non disclosure in this case related to statements taken from a potential witnesswhich witness was not called by the prosecution at trialalthough she had testified at the preliminary inquiry.
[9]. In our opinion this decision is distinguishable.In our view the rules governing criminal proceedings do notapply to the proceeding before us and further, the Stinchcombe decision dealt with a non disclosure of statements made bypersons who might be called to testify on behalf of thedefence.
[10]. This argument fails.
[11]. Finally, the appellant argues that the evidencedoes not meet the test of being "clear and convincing". Having reviewed the evidence we are satisfied thatit is adequate to sustain the finding of guilt. For the above reasons the appeal from conviction isdismissed.
Penalty:
[12]. The appellant argues that the breach in questionwas a technical breach and that Sergeant Morris acted reasonably. We agree that the breach is a technicality andthat the conduct of the was, under these Sergeant Nevertheless, it is a circumstances, quite understandable. breach. We note that the Police Force treated this breach as a minor offence and that the penalty imposed was a minor penalty. At the hearing before us Mr. Zarudny went further and conceded that the penalty could probably be reduced to a reprimand.
[13]. When the hearing opened Mr. Zarudny, acting onbehalf of the Ontario Provincial Police, conceded that thepenalty could probably be reduced to that of a reprimand.
[14]. As we have previously indicated, this breach ofconfidentiality is a technical breach and, under all thecircumstances, is understandable. We agree that the appropriate penalty is a reprimand and so order.
DATED THIS 11TH DAY OF JANUARY, 1993.
per W.D. Drinkwalter, Q.C., Chairman