ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

SERGEANT M.J. SAUNDERS

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: Karl R. Fuller, Member Mary-Woo Sims, Member

Hearing Date: Friday, January 28th, 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 Mary-Woo Sims, Member

Appearances: W. Michael Temple, Q.C., Counsel for the Appellant Inspector Ken Christopherson, Professional Standards Branch, Ontario Provincial Police Inspector Michael Shard, Professional Standards Branch, Ontario Provincial Police

Hearing Date: Friday, January 28th, l994

[1]. Sergeant Saunders was convicted of Neglect of Duty. The incidents which resulted in this conviction involve a failure to report promptly to OPP District Headquarters anincident involving actions of Staff Sergeant Brophey,Constable McGetrick and Constable Nystedt; further, SergeantSaunders failed to ensure that seized liquor was recorded.Sergeant Saunders' penalty was a forfeiture of twenty-fourhours time off.

[2]. The incidents which resulted in the Neglect of Dutycharge are as follows:

1. On November 7th, l99l a Russell McKenzie was arrested for impaired driving and turned over to OPP Constable J. McGetrick who took him to the OPP Ottawa Detachment.

At the Detachment, a breathalyzer test was administered by OPP Constable Nystedt and a reading of .l97 was obtained. The breathalyzer test was changed to .97 and russell McKenzie was released without being breathalyzer test were Constables McGetrick and Nystedt and the Detachment Commander, Staff Sergeant W.D. Brophey. Sergeant Saunders found out about the incident on the same day that it occurred but did not report the matter for four days from November 7th to November llth.

2.After Mr. McKenzie was released, ConstablesMcGetrick and Nystedt met with SergeantSaunders to discuss the arrest, the lowering of the breathalyzer reading, andthe release of Mr. McKenzie. Near the end of the discussion, Sergeant Saunders wasasked how the bottle of liquor seized fromMr. McKenzie should be dealt with. Based on what the constables understood SergeantSaunders had directed, the liquor was poured down the toilet and the bottle,thrown in the garbage contrary to therequirement to properly record the evidence.

[3]. A transcript of the proceedings at trial before aDiscipline Hearing under the Police Services Act on in thismatter was submitted as evidence and Counsel for the Appellant and the Respondent relied on sections of thetranscript in argument.

Issue l:

[4]. Appellant's Counsel argued that a four-day delay inreporting the incident to District Command Headquarters wasnot an unreasonable delay. Counsel asked this Commission to consider whether or not there was clear and convincingevidence that Sergeant Saunders, in delaying his report toDistrict Headquarters, was neglectful in duty.

[5]. Staff Sergeant Brophey was Sergeant Saunders' superior. Constables McGetrick and Nystedt had acted uponadvice of Staff Sergeant Brophey. Sergeant Saunders explained the delay by stating that he wanted to get moreinformation before reporting the incident. In addition, hefelt that he was in a difficult position. His Detachment Commander was involved in the matter and he had been completely bypassed and had nothing to do with the loweringof the breathalyzer examination.

[6]. It is conceivable that, as stated in the trialtranscript, Sergeant Saunders was seriously contemplating theramifications of reporting the actions of his superior. In circumstances of this nature, we believe that it is possibleto take a reasonable length of time to contemplate the issuesand to ensure that all the information is verifiable. We do not consider a four-day delay to be unreasonable under thecircumstances. As a result, we do not find that there wasclear and convincing evidence that Sergeant Saunders indelaying his report to District Command Headquarters, wasneglectful in duty.

Issue 2:

[7]. There is no dispute as to the fact that the liquorwas disposed of and not properly recorded as required.Constables Nystedt and McGetrick testified that they disposedof the liquor based on Sergeant Saunders' gesture of turningthumbs down. Sergeant Saunders does not recall having madesuch a gesture but has admitted that he said, "... you mightas well get rid of the fuckin' thing" (Transcript, Page 46Line 20-25). Counsel for Appellant argued that althoughSergeant Saunders said this, it was not his intent that theConstables dispose of the liquor. Sergeant Saunders wasangry about the whole situation and said this in a sarcasticfashion.

[8]. Sergeant Saunders' intent or feelings when makingthe statement is not the issue. The issue is his precisewords to the Constables and the actions taken as a result. It is the opinion of this Commission that Sergeant Saunderswas neglectful in duty in not ensuring that evidence, theliquor, was properly recorded.

Penalty:

[9]. The penalty imposed on Sergeant Saunders was aforfeiture of twenty-four hours time off. We confirm the finding of Neglect of Duty only with respect to his failureto take steps to properly record the liquor for evidence.

[10]. In view of this we reduce the penalty to forfeitureof twelve hours time off.

[11]. For the above reasons the appeal is allowed inpart.

DATED THIS 22ND DAY OF MARCH, 1994.

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