Staff Sergeant A.M. Millar v. Ontario Provincial Police, 1995 CanLII 15415

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

STAFF SERGEANT A.M. MILLAR

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: Dean E. Peachey, Member Bob Saracino, Member

Hearing Date: October 5, 1995

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: Dean E. Peachey, Member Bob Saracino, Member

Appearances: Heather Hutchison, Ontario Provincial Police Association, Counsel for the Appellant Inspector Michael Shard, OPP, for the Respondent

Hearing Date: October 5, 1995

1. This is an appeal with respect to a finding of Discreditable Conduct made against Staff Sergeant Millar.

Summary of Facts:

2. On October 5, 1995 Staff Sergeant A.M. Miller of the Ontario Provincial Police was found guilty of Discreditable Conduct for utilizing an OPP vehicle for personal use. The prosecution alleged that on three occasions Staff Sergeant Millar used an OPP vehicle to conduct personal visits with a woman living in the White Dog community. According to the prosecution, on two occasions Staff Sergeant Millar drove from the Minaki Detachment where he was based, to White Dog, and that on a third occasion in April 1991, he drove an unmarked OPP vehicle from Sioux Lookout to White Dog to visit the woman.

3. Staff Sergeant Miller first met this woman when she had a contract to serve as part-time caretaker for the OPP office in White Dog. As Minaki Detachment Commander he assumed responsibility for the contract regarding the White Dog office. At that time the woman lived adjacent to the trailer that housed the OPP office in White Dog.

4. At his disciplinary hearing, Staff Sergeant Millar stated that on several occasions he visited the woman at her residence for both business and social conversation. He stated that these visits were in conjunction with other business that took him to the White Dog reserve, such as attending Band Council meetings. He indicated that he frequently visited various individuals in the community in his capacity as Detachment Commander to foster rapport between the OPP and the community. He acknowledged making one overnight visit to the woman's residence, but contended that it occurred on February 27, 1991, and that he travelled from Sioux Lookout to White Dog in his personal vehicle, arriving in White Dog after midnight, and leaving at approximately 5:00 a.m. to go to the Minaki Detachment.

5. Evidence at the hearing included testimony from the woman that on one occasion, Staff Sergeant Millar called at approximately 10:00 p.m. to say that he would be driving from Sioux Lookout to visit her that night. She indicated that he arrived around midnight, and stayed until early morning, driving an unmarked OPP car that she had previously seen used by him and other OPP officers. She said that Staff Sergeant Miller told her he had been working in Sioux Lookout for three days. She was uncertain of the date of this visit, and guessed that it took place in the summer of 1991, perhaps in July.

6. A fellow officer in the Minaki Detachment testified that one night in the spring of 1991 when he had been informed by Staff Sergeant Millar's residence that Staff Sergeant Millar was in Sioux Lookout, he was surprised to see Staff Sergeant Millar driving in an unmarked OPP vehicle at an intersection outside of Kenora, heading in the direction of White Dog. He further testified that Staff Sergeant Millar arrived at the Minaki Detachment at 6:00 a.m. the next morning looking tired and wearing wrinkled clothing. He indicated that it was unusual for Staff Sergeant Millar to arrive at the office so early in the morning.

7. Staff Sergeant Millar's notebooks and daily planners were entered as evidence at the disciplinary hearing. They indicated that on February 27, 1991 he attended an evening police association meeting in Sioux Lookout. He was contacted by telephone at 2:00 a.m. on February 28 by Kenora OPP radio regarding an assault investigation, and that he appeared at the Minaki Detachment for work at 8:00 a.m. on February 28.

8. His records further indicated that he conducted an investigation in Sioux Lookout on April 4th, 5th, and 10th, 1991, and that on April 10th he was off duty in his residence at 10:30 p.m.

9. The Hearing Officer found that on three occasions Staff Sergeant Millar used an OPP vehicle to travel in to White Dog First Nations Territory to visit the woman, including an overnight visit on April 10-11, 1991, and that these actions constituted personal use of a government vehicle.

The Arguments:

10. The particulars of the Notice of Hearing alleged that on three occasions, from approximately February to April 1991, Staff Sergeant Millar drove to the woman's residence utilizing an OPP car. The Appellant argued that the particulars of the Notice of Hearing were vague, making it difficult for the Appellant to defend himself regarding the allegations.

11. The Appellant argued that insufficient evidence was presented for a conviction, and that this was especially true for two of the three visits. The Appellant noted that the woman's description of when and how many times he visited her was vague, and that in particular her recall of the dates involved - when she first met Staff Sergeant Miller, date of the overnight visit, etc. - did not match other evidence presented. The Appellant argued that the prosecution had failed to prove that all of the visits were personal in nature, and failed to prove that any visits occurred within the dates set forth.

12. The Respondent conceded that any unauthorized vehicle use for two of the visits may have been insignificant, and that it was only the third (overnight) visit that constituted any significant misuse of a police vehicle. The Respondent argued, however, that while the Hearing Officer's decision had focused primarily on the third visit, that any one unauthorized use was sufficient for a conviction.

13. The Respondent argued that the matter essentially boiled down to whether the overnight visit which Staff Sergeant Millar admitted making had occurred on February 27-28 when Staff Sergeant Miller was in Sioux Lookout in his own car to attend an association meeting, or on April 10-11 when he was there conducting an investigation in an unmarked OPP vehicle. The Respondent maintained that the Hearing Officer's review of all the evidence led to the only correct conclusion that the visit had occurred on the latter date, and therefore involved the use of a police vehicle.

Decision:

14. We find that the Hearing Officer erred in finding that "on approximately three occasions Staff Sergeant Millar used an OPP vehicle to travel to White Dog First Nations Territory in order to visit with [woman's name]." The prosecution may have demonstrated that on three occasions Staff Sergeant Millar visited the woman while driving a police vehicle, but it did not present any evidence to rebut his testimony that on two of these occasions he drove to White Dog to conduct police business and that any contact with the woman was incidental to the purpose of the trip.

15. We are further of the opinion that any personal use of a vehicle by stopping at an individual's house during a time when the officer had legitimate reasons for being in the proximity of the house is negligible, and that reference to it would appear to trivialize the police disciplinary process. We are left to wonder what led to invoking disciplinary charges under the Police Services Act for such allegations.

16. However, we uphold the Hearing Officer's finding that one of the visits occurred on April 10-11, 1991 and involved driving a police vehicle from Sioux Lookout to White Dog for strictly personal reasons. We find that the Hearing Officer's review of the relevant evidence was thorough, and his logic in concluding that the visit in question occurred on April 10-11 was not faulty.

17. If a Hearing Officer finds that any one or more of the allegations enumerated in the Notice of Hearing is proven, then the Hearing Officer can find Discreditable Conduct. Leone and Catalano, (Board of Inquiry, November 1992, unreported).

18. We may question whether the engagement of disciplinary charges under the Police Services Act and the resulting appeal is the most effective and efficient manner of correcting the situation, or the wisest expenditure of public resources. However, the choice of whether or not to correct the behaviour by laying charges or by some other method is not ours to make. We restrict our action to determining whether or not the charge was proven.

19. We therefore dismiss the appeal.

DATED THIS 15TH DAY OF DECEMBER, 1995.

Dean E. Peachey, Member

Bob Saracino, Member

per Murray W. Chitra, Chair