ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
SERGEANT M.D.M. NORTON
Appellant
-and-
ONTARIO PROVINCIAL POLICE
Respondent
DECISION
Panel: Murray W. Chitra, Chair Alok Mukherjee, Member
Hearing Date: Friday, October 21, 1994
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:
Murray W. Chitra, Chair Alok Mukherjee, Member
Appearances:
W. Michael Temple, Q.C., Counsel for the Appellant Inspector Michael Shard, Professional Standards Branch, Ontario Provincial Police
Hearing Date: Friday, October 21, 1994
This is an appeal arising out of a conviction by a Presiding Officer, dated May 13, 1993, on a charge of discreditable conduct after having been found guilty of an offence under the Criminal Code contrary to s. 56(a) of the Police Services Act, R.S.O. 1990, c. P. l5 and s. 1(a)(vii) of the Code of Offences, R.R.O. l990, c. 927, Sched. The particulars of the charge are that Sergeant Norton was found guilty by His Honour Judge Taillon of the Ontario Court (Provincial Division), Oshawa, Ontario, of the offence of operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, contrary to s. 253(b) of the Criminal Code. He was fined $800 and suspended from driving for eighteen months. Sergeant Norton has appealed that conviction and the sentence.
The Adjudicator, Superintendent G. Taylor, imposed a penalty of forfeiture of five days' pay. The penalty has not yet been paid.
The Facts:
The facts in this case pertain to events that occurred on June 20, 1991, and are fairly straightforward.
On June 20, 1991 at approximately 0320 hours, Sergeant Norton was driving a pick-up truck on Highway 45. He was travelling in the northbound lane. As he negotiated a sharp curve to the left, he drove onto the east shoulder and crossed the northbound and southbound paved lanes. He drove into a ditch, came in contact with a tree and struck a concrete bridge. The truck was extensively damaged and Sergeant Norton himself was injured.
Empty beer bottles were found at the scene of the collision, and part of a twelve ounce bottle of whisky was located in the truck.
Sergeant Norton's injuries were of sufficient concern that the attending physician did not permit a breathalyser test. He was given a blood test.
The blood sample read 229 milligrams of alcohol per 100 millilitres of blood. Sergeant Norton was charged with Over .08, Open Liquor in the Vehicle and Fail to Report an Accident.
On June 19, 1992, Sergeant Norton appeared before His Honour Judge Taillon of the Ontario Court (Provincial Division), Oshawa, Ontario. He was convicted of the Over .08 charge, fined $800, or twenty days' in prison in the event of failure to pay, and suspended from driving for eighteen months. He was given ninety days to pay the fine. He has appealed the conviction and the sentence.
Upon his conviction on a charge under the Criminal Code, Sergeant Norton was charged with discreditable conduct under s. 56(a) of the Police Services Act, and s. 1(a)(vii) of the Code of Offences.
On May 13, 1993, he appeared at a disciplinary hearing conducted by Superintendent G. Taylor at Belleville, Ontario. At this hearing his defence did not call any evidence and acknowledged that a prima facie case had been put forward.
The Adjudicator upheld the charge of discreditable conduct and imposed a penalty of five days' loss of pay. His reasons for the sentence are that:
a. The blood alcohol levels in the appellant were extremely high.
b. The accident could have been tragic not only for other members of the public but Sergeant Norton himself. As it is, he was hurt fairly severely.
c. The public has very high expectations of conduct from police officers.
d. OPP must send out a very clear message to all its employees that those charged with impaired driving are jeopardizing their employment with the OPP.
- The penalty has not yet been paid, pending the resolution of Sergeant Norton's appeal to the Commission.
The Arguments:
This hearing be adjourned until the appeal of the criminal conviction has been resolved; and,
In any event, the penalty of the forfeiture of five days' pay be reduced to a loss of three days' pay as more appropriate in light of Sergeant Norton's record of service.
We will deal with the two matters in sequence.
Adjournment of This Hearing
Mr. Temple argues that although Sergeant Norton has been convicted of a criminal offence, the conviction and the sentence are under appeal. He hopes that a date for the appeal hearing will be set in about six months' time. If the appeal under the Criminal Code is successful, he would move that this appeal be allowed as well. He argues that the respondent will suffer no prejudice by an adjournment of the appeal of the Police Services Act sentence by Adjudicator Taylor. Mr. Temple points out that considerable time has already passed.
He submits further that the cause of employer-employee relations will be advanced by such an adjournment. He argues that this will not be the case if the appellant is made to pay a penalty now, which he would have to go to a Small Claims Court to recover, in the event that his appeal of the criminal conviction is successful.
He undertakes to keep the Commission informed with regard to the progress of the criminal appeal.
Inspector Shard, for the respondent, opposes an adjournment of this hearing. He points out that it is in the interest of employer-employee relations that matters such as the present one be resolved in a timely fashion.
On point of law, he points out that once an officer has been found guilty of an indictable offence, the Ontario Provincial Police must lay charges, and, having done that, they must proceed. He cites Section 60(ll) of the Police Services Act in support of his argument. The relevant section reads as follows:
(11) If the police officer is charged with an offence under a law of Canada or of a province or territory in connection with the alleged misconduct, the hearing shall continue unless the Crown Attorney advises the chief of police that it should be stayed until the conclusion of the court proceedings.
It is Inspector Shard's position that there is no discretion in the matter.
Further, by way of precedent, he refers to the decision in the case of P.C. Brian Tkacz (1987), Ontario Police Reports, pp. 745-750.
P.C. Tkacz was convicted of the criminal offence of trafficking in and possession of cocaine under the Narcotic Control Act. He was thereupon charged with, and convicted of, a major charge of discreditable conduct under s. 1(i) (vii) of the Code of Offences, Police Act Regulations, R.R.O. 1970, c. 791, Sched., and a penalty of dismissal was imposed.
P.C. Tkacz appealed his criminal conviction to the Quebec Court of Appeal. He appealed his Police Act conviction to the Ontario Police Commission. He argued that under Section 27 of reg. 791, no penalty should be applied and proceedings stayed until all rights of appeals have been exhausted. The appellant's argument was that "no penalty should be imposed until the matter upon which the decision is based is determined." (p. 749)
In their decision dismissing P.C. Tkacz's appeal, Commissioners MacBeth, Lynch and McKay stated that:
Although the basis for the Presiding Officer's decision will be undermined if the criminal conviction is quashed, the appellant will have recourse available, including a civil action for salary and benefits for the period of his suspension. (p. 746)
They pointed out that "the 'matter' upon which the hearing officer's decision was based has in fact been determined; that is, it is the conviction which is outstanding which operates." (p. 749) On this basis, the Commission agreed that "an adjournment would cause undue prejudice to the force." (p. 746)
Inspector Shard points out that, unlike P.C. Tkacz, Sergeant Norton faces a lesser penalty, namely, the loss of five days' pay. He submits that Sergeant Norton will have recourse available to him should his appeal of the criminal conviction succeed to the civil courts to recover any penalty assessed.
In his response, Mr. Temple states that:
i. The prosecutor's discretion referred to in Section 60 (ll) applies only at the trial hearing stage, and not with respect to an appeal. Accordingly, it does not prevent the Commission from allowing an adjournment.
ii. The case of P.C. Tkacz was quite different. He was convicted of a very serious offence such that the employer believed dismissal was warranted. This is not the case here. Accordingly, allowing the adjournment will not cause the employer any prejudice.
An Appropriate Penalty
Mr. Temple asks that, in any event, the penalty of forfeiture of five days' pay be reduced to a loss of three days' pay and, further, that the penalty remain suspended until the completion of the criminal conviction appeal.
He adopts the submission he made to the Adjudicator at the time of the original sentencing. At that time, he asked the Adjudicator to take into account a number of factors in arriving at an appropriate penalty. These included:
· Recognition on the part of Sergeant Norton of the seriousness of the matter, and his seeking help from a substance abuse counselling program.
· The officer's otherwise sound record since 1976, with the exception of one incident in 1984.
· Financial and marital problems experienced by the officer at the time of the incident which he was in the process of overcoming.
· His being convicted of the offence of having over 80 milligrams of alcohol in 100 millilitres of blood, all other charges having been withdrawn.
· The exemplary nature of the episode for Sergeant Norton.
Inspector Shard, for his part, adopts the arguments made by Inspector Christopherson before the Adjudicator.
In his sentence submission, Inspector Christopher on asked for the maximum penalty under the Police Services Act for loss of pay on one charge under the Code of Conduct, namely, five days. He based this on the amount of damage, the level of alcohol in the officer's blood and his previous record.
By way of precedent, Inspector Shard cites the cases of Constable John F. Gamble (1986), Ontario Police Reports, pp. 711-718, and Constable John Watson (1989), Ontario Police Reports, pp. 814-816.
Both cases arose out of appeals of the penalties imposed as a result of the two officers being convicted of discreditable conduct for being found guilty of the criminal offence of impaired driving. In both cases, the appellants submitted that the penalties were harsher than justified.
In the Gamble decision it was further argued that the penalty was inconsistent with those imposed in similar cases.
We note that in both cases, the Commission upheld the original sentence.
In the case of Constable Gamble, the Commission observed that:
. . . he was given assistance, counselling and support by the Force. He had reasonable opportunity to come to grips with his problems. His deliberate preparations for a drinking spree on his return trip to the alcoholic clinic are not convincing of attempt or intent to reform. (p. 718)
- In the matter of Constable Watson, the Commission, had this to say on the question of whether the penalty imposed was in line with the penalties imposed earlier by other police forces for similar offences:
Accepting that this is the case we believe that there are very good reasons for this change in policy and change in attitudes. In recent times the public's attitude toward drinking/driving offences has changed radically. The public is no longer prepared to treat drinking and driving as a minor slip or a minor offence. In view of this change in public attitude, the police forces of Ontario have changed their attitude with respect to the severity of these offences and we can but applaud them for that. (p. 815)
The Decision:
Adjournment of This Hearing
Mr. Temple submits that this appeal should await the result of the appellant's appeal of his conviction under the Criminal Code.
We take his point that the issue of prosecutor's discretion under Section 60(ll) of the Police Services Act only applies at the tribunal hearing stage, and not at this stage. Whether or not an adjournment can be allowed pending an appeal is, accordingly, a matter for the Commission's discretion.
That being said, there are certain considerations, related to law and policy, that we must address.
With respect to the law, the question to be asked must be the one which the Commission asked in Tkacz, namely, whether the "matter" upon which the hearing officer's decision was based has in fact been determined. The "matter" in this case is the criminal conviction of Sergeant Norton. As of this date, that conviction stands. Mr. Temple has agreed that a prima facie case has been made.
With respect to policy, we take the view that this is a matter of employer-employee relations.
Once a certificate of conviction has been registered, the employer is right to proceed with disciplinary proceedings. To allow otherwise in this case, in the absence of special or unique circumstances, would hamper the employer from exercising that right.
Further, we are not persuaded that the exercise of that right will be prejudicial to Sergeant Norton. His right to a recourse is not permanently extinguished. He will have recourse available through civil action to recover any lost pay, in the event that his appeal of the criminal conviction is allowed.
For all these reasons, the appeal for an adjournment of this hearing is dismissed.
An Appropriate Penalty
Turning now to the question of an appropriate penalty, Mr. Temple suggests that a loss of three days' pay would be more appropriate.
We are mindful of Sergeant Norton's record. Although Sergeant Norton committed several infractions in the 1970's, he has had a clean record of service subsequently, with one exception in 1984. He has won several citations and awards. He has conducted educational programs for young people on the issue of drinking and driving. His colleagues have testified that he is a good officer.
We also acknowledge the fact that he was having personal difficulties at the time of the occurrence, and has made efforts to overcome them.
Nevertheless, we do believe, as a matter of public policy, that the OPP, and other police services, must take the most serious view of drinking and driving. The penalty for a member of a police organization who engages in such a course of action must be exemplary, both for the individual and for other members of the organization.
The message must go out that police organizations take seriously the current public view of drinking and driving.
Accordingly, we confirm the penalty of loss of five days' pay imposed by the Adjudicator on Sergeant Norton. Further, we order that this penalty be paid upon the rendering of this decision.
DATED THIS 30TH DAY OF NOVEMBER, 1994.
Murray W. Chitra, Chair
Alok Mukherjee, Member
per Murray W. Chitra, Chair