Johnston and Slot v. Metropolitan Toronto Police Service, 1994 CanLII 16018

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

P.C. WILLIAM JOHNSTON AND DETECTIVE ANTHONY SLOT

Appellants

-and-

METROPOLITAN TORONTO POLICE SERVICE

Respondent

DECISION

Panel: Karl R. Fuller, Member Raymond G. Leclair, Member

Hearing Date: Thursday, January 20, l994

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: Karl R. Fuller, Member Raymond G. Leclair, Member

Appearances: Harry G. Black, Counsel for the Appellants George S. Monteith, Counsel for the Metropolitan Toronto Police Force

Hearing Date: Thursday, January 20, l994

1. This is an appeal pursuant to Section 68(8) of thePolice Services Act from a finding of Discreditable Conductand a penalty of the forfeiture of two days off imposed by aHearing Officer and subsequently confirmed by the Metropolitan Toronto Police Services Board.

The Facts:

2. On November 23rd, l989 Detective Anthony Slot andPolice Constable William Johnston took a prisoner from theToronto jail on a judge's order allegedly to view documentsat Police Headquarters. The Order directed that the prisonerwas to be forthwith reconveyed to the Toronto jail by 2:00p.m. the same day. While in the custody of the officers, theprisoner was instead taken to a restaurant to discuss evidence and the officers arranged for the prisoner's wife,another participant in the undercover investigation, to meetwith them for lunch. Afterwards the officers permitted theprisoner and his wife to be alone in a police car while theofficers remained close by in another vehicle.

Background:

3. The prisoner was convicted on March 26th, l990 ofpossession of a narcotic for purpose of trafficking and wassentenced to 9 years imprisonment. He was previously wantedin the United States for attempted murder for shooting a PortAuthority Police Officer in New York and was sentenced in hisabsence to 28 l/2 years. At the time of his arrest byConstable Johnston, the prisoner had indicated his desire tobecome a police informer. It has been stated that his subsequent cooperation with Metro Police contributed to theseizure of narcotics valued in excess of $9,000,000.00.

4. The Officers visited the prisoner on approximately34 occasions in an effort to further their investigationconcerning narcotics and the prisoner became extremelyparanoid about his safety. He felt that the other prisonerswere suspicious and he was concerned about being labelled apolice informer and felt that he was not very safe. The prisoner requested that any future conversation be carriedout outside of the prison. When the need arose to have the prisoner review certain documents related to the officers'investigation, they inquired of the procedure to remove aprisoner from custody and were advised to seek a Judge'sOrder to transport the prisoner to Police Headquarters at 40College Street. An application was prepared by DetectiveJohnston with a Court Officer's assistance and presented to aJudge for signature. From the evidence it appears noguidelines were given or highlighted to the officers abouttheir escort duties pursuant to the Order. It is stated that neither officers had ever previously obtained a Judge'sOrder, that they were unfamiliar with the process, that theywere not directed to any formal process, if any existed, andrelied on the assistance of the Court Officer who performsthe role of completing applications at the Court Office.

5. Counsel for the appellants drew attention to Section 527 of the Criminal Code. This Section stipulatesthe "Procedure to Procure Attendance of a Prisoner". The manner of custody, he argued, is stipulated in Subsection 4:

"Where a prisoner is required as a witness, theJudge or Provincial Court Judge shall direct, inthe Order, the manner in which the prisoner shallbe kept in custody and returned to the prison fromwhich he is brought".

Subsection 7 states:

"On application by the prosecutor, a judge of aSuperior Court of Criminal jurisdiction, or of acounty or district court may, if the prisonerconsents in writing, order the transfer of a prisoner to the custody of a Peace Officer, namedin the Order for a period specified in the Orderwhere the judge is satisfied that the transfer isrequired for the purpose of assisting a PeaceOfficer acting in the execution of his duties".

6. Counsel suggested that the Order was nullified byits reliance on Subsection 7 which required the "applicationof a prosecutor". A prosecutor had not signed the application for the Order in this case. Counsel claimed that the Order was a nullity and, therefore, a conviction shouldnot ensue from it.

7. In further argument, counsel drew attention to thefact that the appellant (Constable Johnston in this case) hadno previous experience in processing a Judge's Order and wasuncertain as to the process.

8. Mr. Monteith, for the Metropolitan Toronto Police,dealt with the element of danger to the public that existedwhen the officers allowed the prisoner to sit in the restaurant with his wife, and without restraints. He further pointed out that the prisoner's wife was searched only in acursory manner, and that no notification of the 'plan' wasgiven to the officers' supervisor. With respect to theprocedural arguments concerning Subsections 4 and 7 of Section 527, he argued that the Order was dealt with as alegal document at the time and that it should be followed inevery respect.

Reasons for Decision:

9. In contemplating a decision, the Commission mustsatisfy itself as to whether the officers' conduct was likelyto bring discredit to the Force. We recognize that in orderto establish creditability with an informant, officers areoften compelled to build up somewhat of an amicable relationship with informants. We note that in this case, theofficers were successful to make a significant dent in thetrafficking of narcotics in Toronto. We note, as well, thatthey had to make numerous trips to the Don Jail to meet withthe prisoner, which would naturally have led to a degree ofrapport in their interactions with him.

10. Section 527(7) stipulates that the consent of aprisoner is required in cases where the prisoner is to beremoved from the jail. Mr. Monteith alleged that somemeasure of informal negotiations likely took place in thesecircumstances, and that's when the officers "cooked" theirscheme to have the prisoner meet with his wife and neverintended to go to the College Street Headquarters. We recognize the need to respect the stipulations of a Judge'sOrder, and agree with the Hearing Officer's findings that theofficers did not intentionally misrepresent their intentionsat the time of application for the Order. They honoured thestipulation that the prisoner must be returned to the jail by2:00 p.m., but exercised their judgement in the process tohave the documents reviewed.

11. It is probable that the officers feel that, asintelligence investigators, they could exercise discretion tothis limited degree, and they did so. We believe that there exists a need to respect a Judge's Order but do not considerthis minor deviation to be of sufficient import to justifythe pressures that the lengthy trial imposed upon them; thetransfer from the Intelligence Unit and the conviction imposed upon them.

12. The Order was signed on a blank all-purposeprecedent with what seems to be little thought. The evidence suggests that the destination was set out because of atechnicality and of little importance. Subsection 527(7)does not require detailed information required under Subsection 527(4) for which the blank order form appears tohave been prepared. Subsection (7) merely speaks of releasing the prisoner to a Peace Officer's custody. This is what the officers appeared to have retained as the import ofthe Order. Permission to remove the prisoner in theircustody and return him by 2:00 p.m. They knew they wereresponsible for his return and after assessing the circumstances, in view of the relationship established,dismissed the risks and acceded to his request to meet in therestaurant and with his wife. We are conscious that arranging a meeting in a restaurant and with his wife maylead the general public to question this action of theofficers, however, we are prepared to accept that these actsby police officers, although unusual and unorthodox, may berequired at times when dealing with the criminal element forthe overall good achieved. It is clear that such measures may be abused and we would prefer to see a formal processwhere the officers at least advise their superiors in likecircumstances in order to avoid any abuse or appearance ofabuse.

13. The Order obtained under Section 527(7) does notrequire a destination to be provided; we find that part ofthe Order, which was added by a Court Officer and not thejudge, to be superfluous. Nevertheless, the officers did actin breach of a Court Order and accordingly we must uphold theconviction.

14. As we have tried to indicate, we find the conductof these officers understandable and we find the breach to be of a minor nature. In our view this matter ought to havebeen handled by an informal disciplinary process pursuant towhich the officers ought to have been scolded. In our view the penalties imposed on these two officers are more seriousthan the circumstances warrant and accordingly we allow theirappeals with respect to penalty, quash the penalty imposed,and substitute an order that they be reprimanded.

DATED THIS 16TH DAY OF MARCH, 1994.

Karl R. Fuller, Member

Raymond G. Leclair, Member

per K.R. Fuller