Sergeant J.A. Piccione v. Ontario Provincial Police, 1995 CanLII 15416

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

SERGEANT J.A. PICCIONE Appellant

-and-

ONTARIO PROVINCIAL POLICE Respondent

DECISION

Panel: Murray W. Chitra, Chair Karlene J. Hussey, Member

Hearing Date: November 13, 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: Murray W. Chitra, Chair Karlene J. Hussey, Member

Appearances: W. Michael Temple, Q.C., Counsel for the Appellant Inspector Michael Shard, Counsel for the Respondent

Hearing Date: November 13, 1995

Decision

1On December 7, 1994, Sergeant Joseph Piccione of the Ontario Provincial Police was found guilty of the disciplinary offence of Damage to Clothing or Equipment contrary to subsection 1(h)(i) of the Code of Conduct contained in Regulation 927 of the Revised Regulation of Ontario as amended.

2The specific allegation against Sergeant Piccione was as follows:

"On January 15, 1994, while on duty, you were driving an OPP vehicle on Grey Road #1 in Kepple Township. A vehicle that you had been following driven by James Bell slowed and started to turn left onto Sideroad 20. You were operating the OPP vehicle in such a manner that you were unable to slow properly behind the Bell vehicle and collided with the rear end of the Bell vehicle, resulting in damage to the OPP vehicle."

The Appeal:

3Sergeant Piccione appeals the disciplinary decision on the following grounds:

1. The Adjudicator erred in failing to accept the evidence of the expert witnesses that the accident was not caused by negligence of the Appellant, particularly when the Prosecutor had not employed OPP resources to prepare a reconstruction of the accident scene.
2. The Adjudicator erred in failing to consider the evidence of the Investigating Officer, Sergeant Barry Thorn that he recommended that corrective action not be taken against the Appellant and that he did not have reasonable and probable grounds to charge the Appellant with an action under the Highway Traffic Act.
3. The Adjudicator erred in accepting some of the evidence of the driver and other occupants of the Bell vehicle which was established in cross-examination to be unreliable and in failing to accept the evidence of the Appellant, an experienced Police Officer.

4There was not clear and convincing argument presented at the hearing to support the conviction of the Appellant. The Adjudicator erred in concluding that the accident appeared to result from carelessness on the part of the Appellant and in effect holding that there was an onus on the Appellant to prove that the accident was not caused by carelessness on his part

Background:

1. On the morning of January 15, 1994, Sergeant Piccione left the detachment in Wiarton driving a Ford cruiser. It was a bright, clear, sunny day but extremely cold with the temperature registering 26 degrees below zero. Prior to leaving the detachment Sergeant Piccione had a conversation with two other officers about the Ford cruiser not handling well in the snow. He indicated that he needed to know how that vehicle handled in such conditions since he was assigning it to other officers.
2. He headed south on Highway 6 and made a left turn onto Grey Road #1 and travelled in an easterly direction. The road was snow-covered. There was a vehicle ahead of the Ford cruiser, driven by James Bell, going in the same direction. Sergeant Piccione stayed behind the Bell vehicle for 8 kilometers travelling at a speed in the range of 60 to 70 kilometers per hour. Sergeant Piccione's evidence was that the Bell vehicle "was in sight at all times except there was a cloud of snow that the car was blowing up from its tires the whole time travelling behind it." The Bell vehicle was, therefore, obscured from his view for the entire travelling time, from the road level up to the trunk.
3. The vehicle slowed and started to turn left onto Sideroad 20 and Sergeant Piccione described a puff of snow which totally obscured his view of the Bell vehicle. He applied his brakes and the cruiser went into a skid for approximately 120 meters and collided with the rear end of the Bell vehicle. Damage to the cruiser was estimated at four thousand, six hundred and thirty-five dollars.
4. On January 10, 1994, five days before the accident, the Ford cruiser had been taken to a garage for routine maintenance. At that time there was a visual inspection and some repair work done on the brake system. Two months after the accident, on March 16, 1994, the Ford cruiser was again taken in for routine maintenance and at that time the brake pads were replaced. Apart from the uneven wear (the left pad was more worn that the right) there were no other observations noted to indicate any other problems with the braking system of the Ford cruiser.

The Arguments:

5In his oral submissions, Counsel for the Appellant argued that even though the roads were snow covered and that visibility was impaired by the blowing snow, the Appellant drove a safe distance, approximately one and a half to two telephone poles, behind the Bell vehicle. Further, an expert witness at the original disciplinary proceeding established, through his evidence on stopping distance, that the Appellant was driving safely. The expert witness also testified that the uneven wearing of the brake pads observed at the March inspection may have contributed to the accident and that there could have been a mechanical defect in the braking system which may have caused them to lock prematurely. Combined with the road conditions, the defective brakes may have compounded the problem. Counsel for the Appellant also submitted that it was crucial that an examination should have been made of the braking system immediately following the accident and the Prosecution failed to have done this.

6Counsel for the Respondent noted that the Bell vehicle signalled well ahead of the turn, that James Bell had no difficulty slowing and turning his vehicle and that the Investigating Officers who arrived at the scene had no difficulty stopping their vehicles. The road at the scene of the accident was flat and level and appeared to be well ploughed. The visibility was good in either direction. There was no urgency in Sergeant Piccione driving that particular vehicle given that he was supposedly testing it. At no time during his journey on Grey Road #1 did he test the brakes. There was no evidence that there was any problem with that vehicle and the Investigating Officer testified that from the skid marks he was certain that the brakes on the Appellant's cruiser were working. The findings of the Investigating Officer were that the accident was caused by Sergeant Piccione not adjusting to the road conditions and that his speed was too fast for the conditions.

7Counsel for the Respondent further argued that the Appellant, by reason of his experience and training, is subject to a higher degree of care than an ordinary citizen. In support of this proposition he referred to W. Powell, (1973) Ontario Police Reports 96 (OPC) and D.L. Stewart, (1976) Ontario Police Reports 270 (OPC). He submitted that the Appellant failed to exercise the care required under the circumstances and thereby caused the collision. He also argued that the degree of carelessness required to support a finding on disciplinary misconduct is not the same as is required to prove carelessness under the Highway Traffic Act and cited as authority for this position Hayward, (1979) Ontario Police Reports 432 (OPC) and Beuk, (1975) Ontario Police Reports 198 (OPC).

Reason for Decision:

8We have carefully considered the submissions of the Appellant on the weight which should be given to the testimony of the experts and after reviewing the transcript we are persuaded that there was no clear error in the Adjudicator's findings that this evidence was not particularly helpful in determining whether the Appellant operated the vehicle with the degree of care necessary under the circumstances. We are also not able to conclude from that testimony that mechanical failure in the OPP cruiser played a role in causing the accident. On this matter we found the expert evidence to be inconclusive and speculative.

9A reconstruction of the accident done at the time it occurred would have been helpful. However, there was more than enough other evidence available to permit the Adjudicator to reach the conclusions that he did.

10The Appellant travelled behind the Bell vehicle for a distance of 8 kilometers on Grey Road #1 which was sufficient time to determine the road conditions and to establish a safe stopping distance for those conditions. The vehicle he was driving was unfamiliar and he was aware from his conversation earlier that morning that it handled poorly in the snow and he, therefore, needed to exercise additional care. He was not under any time constraints nor pressure from any other vehicle on the road as there was none except for the vehicle ahead of him.

11He observed all along that there was a problem with blowing snow affecting his visibility and at no time during the journey was he able to see the brake lights of the vehicle ahead. That ought to have alerted him to be more watchful for any changes in the speed of that vehicle. James Bell testified that he started to slow down well ahead of his turn. Careful observation should have prepared him for the gap closing between the cars and Sergeant Piccione should have adjusted his driving accordingly and in a timely fashion. The fact that a puff of snow totally obscured his vision of the Bell car should not have surprised the Appellant and with the snow blowing for the entire journey along Grey Road #1 he should have anticipated that the car ahead might not be in view at all times.

12We agree with the Respondent that the Adjudicator was required to determine whether a misconduct under the Police Services Act had occurred and that the recommendations of the Investigating Officer were irrelevant to the proceedings.

13We are satisfied that there is clear and convincing evidence to support a finding of Damage to Clothing or Equipment. The appeal is hereby dismissed.

DATED THIS 22ND DAY OF DECEMBER, 1995.

Murray W. Chitra, Chair Karlene J. Hussey, Member

per Murray W. Chitra, Chair