ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
PARIS POLICE SERVICES BOARD
-and-
CHIEF ROBERT MITCHELL
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman Dean E. Peachey, Member
Hearing Date: Monday, May l6th, 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
REASONS FOR DECISION
On January l4th, l994 Chief Mitchell was chargedwith two disciplinary offences. Pursuant to Section 62(2) ofthe Police Services Act the Chief chose to have the trial conducted by this Commission rather than the Board.
We shall deal with the charges separately.
Count l: You stand charged that you did as amember of the Paris Police Service on the 4th day of December l993 at or about thehour of l0:30 a.m. in the Town of Paris in the County of Brant commit a majoroffence and are thereby guilty of misconduct contrary to Section 56(a) ofthe Police Services Act l990 and more specifically Section l(c)(iii) of theCode of Conduct in R.R.O. l990 Reg. 927as amended by O.Reg. 55l/92.
STATEMENT OF PARTICULARS
With respect to the said charge, it isalleged that you did at the time andplace indicated above allow unauthorizedpersons to be transported in a policevehicle other than for reasons relatingto police investigation or acts of mercy.
Chief Mitchell was arraigned on this Count andbefore entering a plea, his Solicitor moved to quash thecharge.
Mr. Caskey's first argument is that the Chief ischarged with "a major offence" and that there is no suchthing. That expression comes from the former disciplinesystem under the Police Act (repealed on December 3lst,l990). That system provided for treating an offence as majoror minor. The system created by the proclamation of thePolice Services Act, and the repeal of the Police Act,provides for an informal discipline system for minor mattersand the laying of a charge, as in the present instance, formore serious matters.
We note that the Charge Sheet includes a noticepursuant to Section 6l(4) of the Police Services Act indicating that "... you may be dismissed from the force ordemoted." In our view the use of the expression "majoroffence" amounts to no more than an indication that the prosecution is treating the matter seriously and accordinglyit can be cured by amendment.
Mr. Caskey's next arguments relate to the sufficiency of the charge as worded.
He argues that the wording of the charge and theStatement of Particulars do not disclose an offence and,further, he argues that the particulars are insufficient.
Section 4(9) of the Regulation provides:
"Every statement of the particulars of anoffence in a Charge Sheet shall includesufficient details to enable the accused to determine exactly the offence withwhich he or she is charged so that theaccused may prepare his or her defenceand direct it to the occasion and events indicated in the charge."
The charge refers to Section l(c)(iii) of the Codeof Offences (referred to in the charge as the "Code ofConduct").
Paragraph (c) of Section l specifies various meansof committing the offence of Neglect of Duty. Subparagraph(iii) reads as follows:
"fails to work in accordance with orders,or leaves an area, detachment, detail orother place of duty, without due permission or sufficient cause,"
Since the particulars refer to the transportationof "unauthorized persons", it seems probable that the intention was not to charge Chief Mitchell with leaving theplace of duty but rather with failing to work "in accordancewith orders". There is, however, no indication of what orderis alleged to have been breached. It seems to us that there is probably something in a Board By-law or the StandingOrders of the Force but whatever and wherever the prohibitionis, it is not mentioned in the charge.
With respect to the particulars of the allegation,we note that the only location alleged is "in the Town ofParis". We take judicial notice of the size of the Town andconclude that that is a sufficient description of the geographical location although such a description may not besufficient in a larger community. Mr. Caskey further pointsout that the charge does not identify the persons alleged tohave been transported nor the vehicle in which they werealleged to have been transported.
We conclude that the charge is defective both forlack of particulars and because it does not disclose anoffence. Accordingly, we quash the charge.
Count 2:
"You stand charged that you did as amember of the Paris Police Service on the 4th day of December l993 at or about thehour of l0:45 a.m. in the Town of Paris in the County of Brant commit a majoroffence and are thereby guilty of misconduct contrary to Section 56(a) ofthe Police Services Act, l990 and morespecifically Section l(c)(i) of the Codeof Conduct in R.R.O. l990 Reg. 927 asamended by O.Reg. 55l/92."
STATEMENT OF PARTICULARS
With respect to the said charge it is alleged that at the time and place outlined above you failed to respond to an emergency situation to provide back upfor a police officer who had requestedassistance in the apprehension of fourmale suspects driving a stolen motorvehicle.requestedassistance in the apprehension of fourmale suspects driving a stolen motorvehicle
This Count also includes a notice pursuant toSection 6l(4) of the Police Services Act indicating that "youmay be dismissed from the force or demoted."
Chief Mitchell was arraigned on this Count and,before plea, Mr. Caskey moved to quash this Count as well.His first submission relates to the allegation of a "majoroffence". For the reasons we discussed with respect to thesame argument related to Count l, we disallowed Mr. Caskey'smotion and amended the charge so that "a major offence" nowreads "an offence".
Mr. Caskey further argued that the particulars areinsufficient, again relying on Section 4(9) of the Regulation. He argues that the "emergency situation is notdescribed nor is the identity of the police officer seekingassistance."
The offence charged is called "Neglect of Duty" andthe mode of committing that offence described in Paragraph(c) Subparagraph (i) is:
"Without lawful excuse, neglects or omitspromptly and diligently to perform a dutyas a member of the police force".
The alleged defalcation is the failure to providebackup in an emergency situation. The deficiencies to which Mr. Caskey refers we believe are matters of evidence whichneed not be alleged in the charge and accordingly we disallowed his motion and proceeded to hear evidence.
Mr. Mitchell, acting as the prosecutor, filed threeexhibits and called seven witnesses. The exhibits are:
Exhibit No. l: Certified copy of By-law l-79 of Paris PoliceServices Board
Exhibit No. 2: Paris Police Force Standing in Routine OrderNo. 6-9l "radio procedure"
Exhibit No. 3: Dispatchers log and duty log for December 4,l993 (with appropriate deletions as per theYoung Offenders Act.)
SUMMARY OF CIRCUMSTANCES
On Saturday morning, December 4, l993, Chief Mitchell was driving a marked police van at the head of theannual Santa Claus Parade. The van was not radio equippedbut Chief Mitchell was carrying a portable radio. At l0:3l a.m. Chief Mitchell radioed to dispatch that the parade wasbeginning. At approximately the same time, Constable Mills,who was on duty in a regularly equipped patrol car wasapproached by a civilian who reported a vehicle approachingParis being driven erratically with four male occupants.Constable Mills relayed this information to dispatch and wassubsequently informed by the dispatcher that the suspect vehicle had been reported stolen in Brantford.
At l0:52 a.m. Constable Mills reported to dispatchthat he had located the suspect vehicle in traffic near theparade route and requested back-up assistance. The dispatcher assigned Constable Alway, who was also on patrolin a marked vehicle, to render assistance, which he did. In order to get to the scene he drove up the "wrong side" of themain street approaching the front of the parade. His roof lights were flashing. He passed the van driven by ChiefMitchell before turning into a cross street and arriving toassist Constable Mills with the arrest of the four occupantsof the vehicle.
Auxiliary Sergeant Linn was on duty in charge ofeight auxiliary constables who were in charge of traffic andcrowd control on the parade route. He also was assigned bythe dispatcher to render assistance which he did.
The evidence also indicated that on a normal Saturday there would be two constables on patrol, and onlytwo. But that because of the parade the Chief was on duty aswell as Auxiliary Sergeant Linn and eight auxiliaryconstables, in addition to Constables Mills and Alway.
The suspects were transported to the policestation. During these events there was no radio communication from Chief Mitchell. At approximately l:00p.m. Chief Mitchell entered the police station, exchangedgreetings with the officers present, returned the keys forthe van and the portable radio that he had been using, andleft the station without further comment or conversation.
Subsequent to the Chief's departure Constable Millsexpressed displeasure to his superior, Staff Sergeant JohnCain, that the Chief had not provided or offered anyassistance when Mills had requested backup, even though theChief was closer than Constable Alway to the location wherethe assistance was required. Staff Sergeant Cain advisedMills of the procedure for putting his concern in writing.Constable Mills did so, setting in motion the processpursuant to which the charges were laid.
The dispatcher on duty, Heather Stenton, testifiedthat when she received the request for assistance she assigned Constable Alway and Auxiliary Sergeant Linn. She specifically testified she did not ask the Chief to provideassistance. Mr. Mitchell, arguing for the prosecution,points to Exhibit 2, which is Standing Order No. 6-9l and isheaded "Radio Procedure". Section 2 of that Procedure says,in part, "all radio equipped vehicles shall be under thedirection of the Radio Dispatcher or Station Duty Officer...". He also referred to Exhibit l which is By-law l-79,Part III, Section 4(ii).
(j) This section of the By-law also refers to"radio equipped vehicles" and the particular paragraph relied on requires amember to contact the dispatcher at leastonce every 30 minutes.
One can argue that the vehicle in question was not "radioequipped" although the Chief could be said to be "radioequipped" because he had a portable in his possession.Even accepting Mr. Mitchell's argument that a radioequipped driver creates a radio equipped vehicle, theelapsed time between the Chief's message to dispatch thatthe parade was beginning and the arrest of the suspectsis only 2l minutes and thus there is no breach of the 30minute rule. In addition to that, of course, the Chief was performing an assigned duty (although perhapsassigned by himself) and was fully engaged therein; thedispatcher did not request assistance from him but assigned two other officers. The Chief was not asked to render assistance so it is difficult to see how he could be convicted of failing to render that assistance.
The prosecution did not provide convincing evidence thatthe Chief contravened standard police procedures or failed to exercise good judgement. The prosecutioncalled as a witness Richard Wayne Howard, Chief of Policein St. Thomas, Ontario, who was assigned to investigatethe complaint against Chief Mitchell. Chief Howard has been Chief of Police for 7 years and a police officer for 25. He testified under cross-examination that in his opinion it would have been unwise for Chief Mitchell toleave his assigned duty as head of the parade under thecircumstances described. He indicated that given thepotential for a vehicle chase to develop that it wasimportant to maintain a highly visible police presence onthe parade route. He indicated that for this reason he did not recommend a charge of Neglect of Duty upon theconclusion of his investigation.
There is some dispute over whether the Chief heardall or any of the radio communications. We believe that this question is insignificant, however, since the dispatcher madeno attempt to reach the Chief nor did she have any intentionof directing him to render assistance and abandon the parade.
We heard from Mr. Maurice Hodgson, a Police Services Advisor with the Ministry of the Solicitor General,that under the circumstances it would be reasonable to expectthat upon seeing a police cruiser approaching with emergencyequipment flashing that an officer would use whatever meansat his disposal to ascertain the cause of the alarm. We agree. Although we do not know exactly what the Chief wasaware of at the time we are of the opinion that if the Chief was indeed aware of the events transpiring that he displayeda distinct lack of curiosity in finding out what was happening. If he was unaware of the radio communications, asseems probable, he may well have made a mental note toinquire into the conduct of this officer. Given the nature of the charge, however, we cannot convict him of this chargebecause of a lack of curiosity.
In conclusion, it is clear to us that relationswere strained within the Paris Police Service, and that theformal procedure of a complaint, investigation and hearinghave likely done nothing to assist that situation. Without limiting the role of formal complaints we encourage policeservices to use informal mechanisms to to express concerns andencourage communication and resolution.
DATED THIS 16TH DAY OF JUNE, 1994.
per W.D. Drinkwalter, Q.C., Chairman