Ontario Civilian Police Commission
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE MURRAY RONALD HEWITSON Appellant
-and-
MEAFORD POLICE SERVICE BOARD Respondent
DECISION
Panel: Murray W. Chitra, Chair Raymond G. Leclair, Member
Hearing Date: Tuesday, October 2, 2001 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 Raymond G. Leclair, Member
Appearances: D. Grace, Counsel for Constable Hewitson J.H.E. Middlebro', Counsel for the Meaford Police Service Board
Hearing Date: November 28th, 1994
Background:
1Constable Murray Ronald Hewitson was charged on February 14th, 1992 with four counts under the Criminal Code for alleged assaults on his wife on the 21st day of July, 1991 and the 1st day of January, 1992, uttering a threat and possession of an offensive weapon relating to an incident with his wife on the 16th day of November, 1991. As a result, on November 2, 1992 he was suspended with pay from his employment with the Meaford Police Service.
2On the 4th day of March, 1993 Constable Hewitson was convicted in Provincial Court on all four counts and sentenced on the 2nd day of April, 1993 to 90 days imprisonment to be served intermittently and to two years probation on each count to be served concurrently. He appealed this decision.
3On the 11th day of June, 1993 Constable Hewitson was charged with four counts under the Police Services Act. The specific allegations were of Discreditable Conduct "in that you were found guilty of an indictable offence or an offence punishable upon summary conviction under the Criminal Code (Canada) contrary to Section 1(a) (vii) of the Code of Conduct contained in Regulation 927".
4These disciplinary proceedings had been delayed pending the outcome of the criminal proceedings. Section 60(ll) of the Police Services Act provides:
"60(ll) If a 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 that it should be stayed until the conclusion of court proceeding."
5Such a request had been received on July 6, 1992.
6The Adjudicator for the disciplinary hearing was Deputy Chief Gordon Miller. On February 7, 1994 he found Constable Hewitson guilty on all four counts and directed that he be dismissed within seven days unless he elected to resign.
7Constable Hewitson appealed this decision to the Meaford Police Services Board. The Board, pursuant to section 64 of the Police Services Act requested the Commission to hear the appeal.
8Before the disciplinary appeal could take place, the Ontario Court of Appeal heard Constable Hewitson's criminal appeal. On the 30th day of June, 1994 the Ontario Court of Appeal quashed two of the convictions and ordered a new trial on the remaining two charges.
The Hearing:
9Constable Hewitson's disciplinary appeal was scheduled to be heard on November 28, 1994. On the morning of our hearing the parties attended before us and advised us that they had reached an agreement with respect to this appeal and requested that we accept their resolution of this matter.
10Counsel for Constable Hewitson requested that we re-instate his client and the Board's counsel confirmed that the Board did not oppose the application. At the heart of the matter appears to be the fact that the Crown has chosen not to proceed with a new trial on the two remaining charges. After hearing from counsel and reviewing the agreement, we advised that we would accept the application.
Arguments:
11Before dispensing of this matter we wish to comment on certain arguments raised by the parties in the notice of appeal.
12Constable Hewitson's counsel in his written submission to the Commission argues that the Adjudicator erred in not adjourning the hearing under the Police Services Act pending the resolution of the appeals under the Criminal Code charges.
13Clearly, given the wording of section 60(ll) a disciplinary proceeding involving criminal charges must be stayed pending the outcome of the trial, if the Crown so requests. However, there is nothing in the Act which extends this principle to the appeal of criminal convictions. Discipline can proceed pending a criminal appeal.
14Obviously there will be cases where a criminal appeal is successful. If any prior disciplinary action is based solely upon convictions which are overturned, then that disciplinary decision cannot be supported and must fall.
15There will be situations where the Crown does not invoke section 60(ll) and disciplinary proceeding take place in the normal course. Evidence is submitted, submissions made and the Adjudicator renders a decision. In such cases, a subsequent successful criminal appeal does not as a matter of course render the earlier disciplinary decision without foundation.
16It was also to be argued that the penalty was excessive in view of the fact that the conduct in question did not occur while the officer was on duty. It is clearly established that an officer may be disciplined for off-duty conduct. We do not accept the notion that criminal conduct engaged in during personal time is by definition less serious and as a matter of principal warrants a lesser penalty.
17Decision:
18We hereby re-instate Constable Hewitson as requested by the parties and for the reasons set out above.
DATED THIS 30TH DAY OF NOVEMBER, 1994.
Raymond G. Leclair, Member
Murray W. Chitra, Chair
per Murray W. Chitra, Chair