P.C. David Marsden v. Metropolitan Toronto Police Service, 1994 CanLII 16022

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

P.C. DAVID MARSDEN Appellant

-and-

METROPOLITAN TORONTO POLICE SERVICE Respondent

DECISION

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

Hearing Date: Thursday, January 20th, 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 Appellant George S. Monteith, Counsel for the Metropolitan Toronto Police Force

Hearing Date: Thursday, January 20th, l994

1. This is an appeal pursuant to Section 63(8) of the Police Services Act from the finding of Discreditable Conduct on the second of two charges and the penalty for each of the charges of resignation within 7 days or dismissal, imposed by the Hearing Officer, Superintendent Wilson and subsequently confirmed by the Metropolitan Toronto Police Services Board.

The Facts:

2. On May 27th, l992 Constable Marsden, while off duty, returning from the United States, stopped in Niagara Falls, New York, purchased and drank some, or all, of a 26 ounce bottle of rye whisky. Constable Marsden later approached two on duty Niagara Falls Police Officers, identified himself as a Metropolitan Toronto Police Officer and inquired where he could purchase liquor after hours. Investigation revealed that Constable Marsden operated his private vehicle while under the influence of alcohol.

3. That same evening, in the company of a stranger, Constable Marsden approached one of the Niagara Falls Police Officers and reported that a suspect had attempted to sell him crack cocaine. Investigation revealed that a $25.00 quantity of a substance purported to be crack cocaine was purchased and smoked in Marsden's personal vehicle, either by Marsden or the passenger.

Background and Reasons for Decision:

4. Constable Marsden was not charged criminally because of a lack of evidence but was charged under the Police Services Act with Discreditable Conduct. He pleaded guilty to the first count which was based on an allegation that he had been driving a motor vehicle while under the influence of alcohol but he appeals the sentence as being excessive. Constable Marsden pleaded not guilty to the second count of Discreditable Conduct, which was based upon the purchase of crack cocaine. He appeals the finding of guilt, disputing his involvement or alternatively his liability due to the combination of alcohol, a newly prescribed medication, and his depressed mental state because of marital problems. Further, he appeals the sentence because he feels it is based on irrelevant or unproven matters and fails to recognize the Force's principle that alcohol is a treatable disease.

5. Constable Marsden has admitted to being an alcoholic since his late teens, who has "hit bottom" with these incidents and is now an active member of Alcoholics Anonymous on route to recovery. He has acknowledged his wrong doing and apologizes for his discreditable conduct but believes he should be given a chance to prove himself. In l987 he sought help from the Force's doctor for his drinking problem, but without an employee assistance program, was simply told to stop drinking and left to his own devices. He soon returned to his old habits. In March of l99l, Constable Marsden, via the Force, attended Bry-Lin Institute and completed its 28-day addiction program. He described it as a very negative experience because of his concerns about the facilities' apparent lack of attention to his epileptic condition and personal safety concerns regarding fellow patients. He did not complete his follow through treatment but remained sober until the evening of these incidents in May of l992. It is noteworthy that, during his l4 years or more with the Force, his record reveals no entries of misconduct, eight complimentary entries and some of the witnesses were unaware of his problem. It appears that he, for the most part, was able to drink, in the closet you might say, with little noticeable effect on his work. Mr. Monteith has characterized the officer's career as being average, the Hearing Officer as less than distinguished, which may be saying a lot for a person with this handicap. Mr. Black argues that his client's marital problems depressed him so that he faltered once more (some l4 months since his last treatment) and that his newly prescribed medicine then compounded his alcohol consumption with such unpredictable and debilitating effects that Constable Marsden should not be held responsible for his actions that evening or at least somewhat excused for his behaviour. Constable Marsden pleaded guilty to the discreditable conduct due to his alcohol impaired driving and the Hearing Officer rightfully accepted his plea. We are asked to review and reduce his penalty in this matter because it is excessive and out of the range normally meted out for such conduct by other officers, which unfortunately seems to be occurring somewhat regularly as to justify a uniform tariff of penalties. We were advised that the most severe penalty in other cases, that of the forfeit of l0 days off, followed even after criminal convictions and penalties, which was not the case here. The fact that he was not charged criminally is immaterial. This officer, with his known addiction and propensity to wish for more to drink after starting, stopped to purchase, not one drink at a bar, but a 26 ounce bottle of rye whisky and start drinking knowing he had miles to drive before arriving home. It is only lucky that he was not involved in a serious accident, and who knows what perils he may have caused along the way. The Hearing Officer chose to deal with the charge as part of the same incident as the second charge, involving illicit drugs, and dispensed a penalty based on the combined effect of this officer's behaviour. This may be appropriate and desirable, however each charge should be dealt with individually although one could warrant a more severe penalty because of associated behaviour which may or may not be the matter of another charge. Further, because of the Force's adopted principle that alcoholism is a treatable disease and its uniform tariff for such "common" occurrences, we agree the penalty is excessive and will reduce same to the maximum permitted, forfeiture of twenty days off.

6. The Hearing Officer found Constable Marsden guilty of discreditable conduct for not only participating in the purchase of crack cocaine but, in fact, also using the illegal substance himself. On these facts he would have been justified to impose the penalty that the officer resign or be dismissed, although outright dismissal would be warranted. However, although an appellate tribunal should be loath to overturn findings of fact by a trier in the first instance, we are unable to concur that there is, on the record, clear and convincing evidence to support this finding of guilt.

7. Mr. Black argued that his client's state induced by depression, alcohol and prescribed drugs removed any mens rea from his action and should be exonerated or partly excused. We do not agree that the offence of discreditable conduct requires an element of mens rea before the prosecution successfully proves its case and in any event would have been at a loss to evaluate same without properly qualified medical evidence.

8. Mr. Black argues that in fact his client was convicted and sentenced for a much more serious charge (that of using) than of which he had been charged (that of purchasing). In appropriate circumstances, where through the skillful work of the prosecution, it is clearly demonstrated that the officer has not only committed the wrongful act of which he or she is charged but, in fact, is proven to have committed more serious or aggravating deeds, that officer should be found guilty of such charge and sentenced with those aggravating factors clearly in mind. We do not find this such an example. All of the evidence and the only evidence in this matter is heresay - what the witness was told by the officer at one time or another. We do not cast any doubt upon the evidence of the officers Galie, Scuster and Spires who testified for the prosecution but find it ironic that an officer whose "usefulness as a police officer has been annulled" can be convicted and dismissed only on his word. No eyewitness, although available, were produced or any indication of their evidence if they would have been. Patrolman John Galie testified that Constable Marsden told him that evening "that a white male had just attempted to sell him crack cocaine", "that he did purchase a $25 piece of crack cocaine for the other male in the vehicle to smoke" and when he was given permission to search the vehicle that "the cocaine was gone".

9. Patrolman John Scuster testified that Constable Marsden told him that evening he had not purchased or smoked any of the drugs but that "the passenger, white male, did buy some cocaine and the passenger did smoke it" and that "the pipe that was used to smoke it was in one glove box".

10. Detective Sergeant Robert Spires testified that Constable Marsden told him on June lst, l992 during a "one-to- one" meeting requested by Marsden that "the occupant then purchased crack from this male, they smoked it in the car and started to drive again".

11. None of these experienced officers took verbatim notes of these conversations although they did have notes of the content of these discussions. Constable Marsden in his testimony denied ever taking any street drug, in fact ever seeing crack cocaine and that it was "quite possible that the passenger did purchase something from the man but at no time did I draw any money out of my wallet. I didn't see any transaction". When the pipe and two suspected rocks were tested, no trace of illegal substances was found. No further evidence was put forth on this subject but the Hearing Officer commented that this does not remove his culpability? All of the evidence comes from the mouth of a man the witnesses themselves describe as disoriented, unaware of the seriousness of events going on around him, in a daze, incoherent, a man who most probably drank 26 ounces of rye whisky that evening. Patrolman Scuster states that he thought Constable Marsden was telling him the truth and believed him but then states that he did not believe some of Marsden's statement. The evidence on the record does not convince us that Constable Marsden's guilt of smoking has been established on clear and convincing evidence. Likewise, the evidence on the record does not convince us regarding the purchase of a substance by the officer, but are convinced that there was clear and convincing evidence that his actions that evening were such that they were likely to bring discredit upon the reputation of the Force. This officer allowed himself to be taken into a known area of questionable activity, by unknown passengers he had invited in his private vehicle, was present in a vehicle when, the evidence clearly suggests a purchase and the consumption of illegal drugs took place, after having identified himself to the local police and passengers as a member of the Metropolitan Toronto Police Force. Actions clearly capable and acknowledged by Constable Marsden as a discredit to the Force. We agree that for a police officer to become involved as a participant in a drug scene is totally unacceptable, even if passively. For these reasons we will not reverse the finding of guilt by the Hearing Officer although we find there is no evidence that Constable Marsden used crack cocaine on the evening of May 27th, l992.

12. For these and the following reasons we agree that the penalty should be reduced. We are not convinced that Constable Marsden's usefulness as a police officer has been annulled. The Hearing Officer characterized Marsden's efforts as sporadic success in sobriety. Unless other evidence is available than the record presents, his unsupported attempt on his own to combat this treatable disease appears to offer great optimism if properly supported by structured support mechanisms. His work, save for some "sick day" absences seems to have been unaffected by his habit. One can only wonder what potential has been suppressed by this disease for this average officer. The prognosis of "severe supervision with continual evaluations" may appear "not an encouraging prognosis for a l5-year veteran officer" or alternatively an admission by the Force that this treatable disease is not taken lightly by the Force and will not be easy for the officer. His immediate supervisor's assessment of his usefulness was not challenged by the Force.

13. We agree with Morden, J.A.'s statement in Re Trumbley and Pugh and Fleming 1986 CanLII 146 (ON CA), 55 OR (2l) 570 at 589 (Ont.C.A.)

"A police discipline matter is a purely administrative internal process. Its most serious possible consequences make it analogous to a discipline matter in ordinary employer-employee relationships, even though the procedure governing it is clearly more formal. The basic object to dismissing an employee is not to punish him or her in the usual sense of the word (to deter or reform or, possibly to exact some form of modern retribution) but rather, to rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee".

14. We do not agree that the employer has shown this to be the case in this instance. Subsection 47(2) of the Police Services Act provides an obligation on the Force to accommodate a member's needs if this can be done without undue hardship. Although this is not a dismissal pursuant to Section 47, the fact that the member's treatable disease contributed to the situation, should entitle him to a chance to prove himself worthy to remain on the Force. We therefore accept his immediate supervisor's evaluation and reduce his penalty on the second charge to a demotion to a Fourth Class Constable for a period of at least one year. During this year he should be provided a closely supervised structured plan and goals with frequent (4-6 week) written evaluations of his performance and progress. During this period he should remain a member of Alcoholics Anonymous and provide the Force with written proof of his attendance and participation. Constable Marsden should consider seeking other appropriate professional advice and treatment to ensure his successful recovery. Constable Marsden should then be allowed to proceed through the ranks if he can sufficiently demonstrate that he is capable of being a fully functional and contributing member of the Force.

DATED THIS 14TH DAY OF APRIL, 1994.

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