ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
IN THE MATTER OF disciplinary proceedings against Palmerston Police Chief Barry Reginald Moyle.
DECISION
Panel: Murray W. Chitra, Chair Alok Mukherjee, Member
Hearing Date: Wednesday, January 25, 1995 and Thursday, May 4, 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 Alok Mukherjee, Member
Appearances:
James R. Caskey, Counsel for Chief Barry Reginald Moyle Michael E. Mitchell, Counsel for Palmerston Police Services Board
Hearing Dates: Wednesday, January 25, 1995 and Thursday, May 4, 1995
- This is a decision on a preliminary motion brought by Mr. James R. Caskey, requesting that the charges against Chief Moyle be dismissed for failure to be brought in a timely manner.
Background:
On October 17, 1994, the Palmerston Police Services Board charged Chief Barry Reginald Moyle with Discreditable Conduct, Neglect of Duty and Deceit contrary to section 56(a) of the Police Services Act, R.S.O. 1990, C.P. 15 as amended (the "Act"). The specific allegations were that Chief Moyle contravened subsections 1(a)(viii), 1(c)(iii), 1(d)(i) and 1(d)(ii) of the Code of Conduct contained in R.R.O. 1990, Regulation 927 as amended (the "Code").
At the same time a second charge was laid alleging further Discreditable Conduct, Neglect of Duty, Deceit and Corrupt Practice in contravention of subsections 1(a)(viii), 1(c)(iii), 1(d)(ii) and 1(f)(v) of the Code.
The particulars of the first charge are that between September 1, 1990 and March 31, 1994 Chief Moyle reported over-time not worked and accepted payment therefor.
The particulars of the second charge are that between July 1, 1990 and May 31, 1993 Chief Moyle made telephone calls that were not part of authorized police business, charged the said calls to Palmerston Police Service, and carried on private and personal business while on duty.
Copies of these charges, a Statement of Particulars and a Notice to Attend Hearing were served on Chief Moyle on October 18, 1994. He was directed to appear before the Palmerston Police Services Board (the "Board") on November 2, 1994. However, on October 20, 1994 Counsel for Chief Moyle notified the Board that pursuant to subsection 62(2) of the Act, his client was electing to have the matter heard by the Ontario Civilian Commission on Police Services.
On January 25, 1995 Chief Moyle appeared before us to plead to the charges. At that time Mr. Caskey raised objections as to the timeliness of the laying of charges in the first instance. At the request of Mr. Michael Mitchell, proceedings were adjourned to permit him to gather background information on why disciplinary proceedings were delayed. Since that time we have been provided with an Affidavit by Mr. Larry Adams, Secretary to the Palmerston Police Services Board, dated March 20, 1995. As well, we have received a transcript of a detailed cross-examination on that Affidavit which took place on April 27, 1995.
With the benefit of this material it is possible to understand the context in which the charges were laid.
The Facts:
The decision of the Board to charge Chief Moyle with misconduct resulted from an inspection of the Palmerston Police Services by the Ministry of the Solicitor General and Correctional Services (the "Ministry"). This inspection was carried out in or around June 1993 on the request of the Board which was concerned about certain budget, financial and personnel matters related to the Police Service. It covered the year 1992.
A preliminary report was provided to the Board at a special meeting held on July 5, 1993. Findings of the inspection which were deemed to have a direct impact on the performance of Chief Moyle were communicated to his Counsel by the Counsel for the Board on August 19, 1993. Chief Moyle was requested to provide any explanation, if he wished, with respect to the matters set out before the Board was advised as to its course of action.
It is clear that by this time the Board had substantial knowledge of alleged wrongdoing on the part of the Chief and was considering the possibility of disciplinary proceedings against him.
Subsequent to the inspection by the Ministry, the Board was advised on or about August 1993 that the Ontario Provincial Police (the "OPP") was investigating the findings to ascertain whether criminal activity was involved. This appears to have stopped any further consideration of disciplinary proceedings. After an investigation by the Anti-Rackets Branch, lasting almost eleven months, the OPP laid criminal charges against Chief Moyle on July 9, 1994. He was charged with two counts of Fraud Over $1,000.00, two counts of Uttering False Documents in relation to his administration of the provincial funding for the R.I.D.E. Financial Assistance Program, one count of Fraud Over $1,000.00 and one count of Uttering False Documents in connection with the Employment Equity Program. These remain outstanding.
No criminal charges were laid by the OPP respecting alleged unauthorized telephone calls and impropriety with respect to overtime claims by the Chief.
It was at this point in time, on or around August 1994, that the Board decided to undertake further investigation regarding the alleged unauthorized telephone calls and overtime claims. The two disciplinary charges, laid in October 1994 by the Board, were the result of these further inquiries.
The Arguments:
- At the preliminary hearing on January 25, 1995, Mr. Caskey, for the Appellant, moved that the charges be quashed since they were not laid in accordance with subsection 60(12) of the Act. He maintained that a holding of a hearing to determine whether a chief of police is guilty of misconduct, can only take place when the requirements of this subsection have been met. The section provides:
"60(12) If six months have elapsed since the facts on which an allegation of misconduct is based first came to the attention of the chief of police, no notice of hearing shall be served unless the board (in the case of a municipal police officer) or the Commissioner (in the case of a member of the Ontario Provincial Police) is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing."
This provision applies to the discipline of chiefs of police with the necessary modifications (see subsection 62(2)).
Mr. Caskey drew our attention to the considerable lapse of time between the alleged offences coming to the attention of the Board and the serving of the Notice of Hearing. He argued that there was no reasonable explanation or justification for the delay. Further, he asserts that any explanation or justification for the delay should have been available at the time the decision to delay was taken, and not retroactively. Finally, he argues the reasons for any delay must be cogent and relevant in law.
Turning to the evidence submitted by the Respondent on the motion to quash charges, Mr. Caskey questioned the relevance of portions of the Affidavit from Larry Adams, Secretary of the Board. He drew attention to paragraphs 15 and 16 of the Affidavit and pp. 48-52 of the transcript of the cross-examination of Mr. Adams to suggest that:
The Palmerston Police Services Board had knowledge of the alleged misconduct for a long time (i.e. at least l5 months before disciplinary charges were brought).
The Board's rationale for the delay - namely, waiting to see whether the OPP will lay criminal charges on these allegations - was questionable.
The Board chose deliberately to leave the threat of disciplinary action hanging over Chief Moyle's head.
At no point did the Board consider whether it was reasonable to delay service of the Notice of Hearing.
Mr. Caskey concluded that the Board's action was not only in violation of subsection 60(12) of the Act, but wrong under the Act even on a factual basis.
Mr. Caskey reiterated his view that a conclusion as to whether there was a reasonable reason for delay should have been drawn by the Palmerston Police Services Board within the stipulated six-month period. The Board could not decide in October 1994 what was a reasonable course of action in July or August of 1993. To this he added two further arguments:
He argues that there is a distinction to be made between the laying of charges and the serving of a Notice of Hearing. He asserts that subsection 60(12) provides no leeway whatsoever for the laying of charges, (i.e. they must be laid within six months of matters coming to the attention of the Board) only the serving of a Notice of Hearing.
The Act recognizes the possibility of disciplinary and criminal charges overlapping. In particular, subsection 60(11) requires the continuation of a hearing where a charge had been laid even where a criminal proceeding was taking place subject to a Crown Attorney directing a stay.
" ... we are highly impressed with the views expressed by Mr. Justice Galligan for the Divisional Court in Re Giles and Halton Regional Police Force et al, 1981 CanLII 1955 (ON HCJ), 33 O.R.(2d) 666, where he points out that the procedure laid down in and under the Police Act must be taken as a code of procedure governing the rights of a person who is charged with a disciplinary offence. No action of any significance taken against a member of a police force in Ontario that does not comply with the procedure laid down may be accepted."
Finally, he referred to a number of criminal cases, in support of the proposition that the Board had a duty to dispose of the matter in a timely fashion. On behalf of the Board, Mr. Mitchell argued that the Commission does not have jurisdiction to determine whether or not to quash the charges. It was his view that jurisdictional challenges arising from subsection 60(12) of the Act should properly be made before the Divisional Court.
Alternatively, Mr. Mitchell argued that:
While the Regulations provide a detailed account of what charges may be laid and how, they also contain a "forgiving" section, (i.e. reasonable to delay under the circumstances).
Criminal cases pertained to the requirement to hold an expeditious hearing relate to delay after a charge had been laid.
Larry Adams' Affidavit fairly puts forward all events related to Chief Moyle. The Affidavit shows the position in which the Palmerston Police Services Board was placed, though not by its volition. It shows further that the Board had attempted to proceed in a proper and reasonable manner.
Chief Moyle had been kept fully advised through his Counsel.
In view of the circumstances in which the Board found itself, and the fact that charges could be laid only after there was a determination as to guilt or innocence, it was reasonable in the Board's mind to delay.
There was no separation between the laying of charges and the Notice to Attend Hearing in the Act, as suggested by Mr. Caskey. The Act contemplated the two proceeding together.
In answer to the question from the Chair as to when, in his view, the six-month period stipulated in the Act began in this case, Mr. Mitchell replied that although the Board had been advised by the Advisors from the Ministry that there might be certain irregularities, it had been told to wait until other investigations were completed. Further, even when the Board did have some indication of possible abuses with respect to overtime and telephone calls, it did not have knowledge of the full extent of such abuse until further investigation had been conducted.
In view of this, Mr. Mitchell proposed that the point when charges were laid (i.e. October 17, 1994) should be the point from which the six month runs.
Rebutting Mr. Mitchell's arguments, Mr. Caskey submitted that:
The Commission did have jurisdiction to make a decision on his motion and had so ruled in the past.
Palmerston Police Services Board had extensive information about the allegations regarding telephone calls as is evident from the cross-examination of Larry Adams. There was no reasonable ground for it to delay notifying Chief Moyle.
The Decision:
Before a decision can be given on this motion, there are three questions that must be answered.
Does the Commission have jurisdiction to consider such a motion?
Does subsection 60(12) of the Act allow for delay only in respect of the Notice of Hearing, and not the laying of charges?
How are we to read the phrase, "facts on which an allegation of misconduct is based first came to the attention" in the said subsection of the Act?
Our answer to the first question is in the affirmative. Insofar as Chief Moyle has elected to have the Commission hold the hearing instead of the Board, as provided for in subsection 62(2) of the Act, the Commission can be required to, and must have the ability to, make all the rulings that the Board may be asked to make. This includes a ruling with respect to basic procedural matters as in the present motion. It is clear to us that, having replaced the Board in this hearing, the Commission has acquired the jurisdiction to decide the motion.
Our answer to the second question is in the negative. We consider the distinction made by Mr. Caskey to be an artificial one. It is possible that the laying of a charge and the serving of a Notice to Attend Hearing appear to be two separate procedures, while the language of subsection 60(12) of the Act only refers to "Notice of Hearing".
It is in our mind a reasonable interpretation that, the ambiguity of the language notwithstanding, the Act contemplates a Notice of Hearing to include the presence of a charge inasmuch as one flows from the other.
With respect to the third question, we conclude that a broad rather than a narrow reading of the language is to be preferred. In our opinion, the purpose of subsection 60(12) is to prevent delay and to ensure a speedy process. This is supported by the decision of the Board of Inquiry in VanPuyven and Niagara Regional Police Force (dated October 4, 1993), while overturned by the Divisional Court on an unrelated question. At page 3 of its decision the panel states:
"The purpose of subsection 60(12) should be considered. It is designed to protect officers from delay in holding an internal hearing. No such protection arises when a Board of Inquiry is ordered. It is reasonable to suppose that the pressure of and preparation for an internal hearing by one's "boss" is a greater concern than that where an independent tribunal is involved."
If, therefore, a Chief of Police or a Board come into possession of facts which, in their judgement, is likely to lead to disciplinary action, it is incumbent upon them to give notice to the person within the time set out. This must be more than a hint of wrongdoing. It must be a sufficient body of factual information, so as to create a reasonable belief that misconduct has occurred.
However, the section is not draconian. It recognizes that there may well be circumstances in which it is not advisable to serve a Notice of Hearing within the time period set out. In those circumstances, it is not enough to keep the determination as to the reasonableness of delaying procedure in the decision maker's mind. That determination must be made at the time and should be reflected on the record.
When it is reasonable to delay is a matter for the Board. However, a Board cannot be arbitrary or subjective. Any delay must be based upon a sensible explanation which bears scrutiny and supports a deviation from the normal time frame of the Act. The onus is on the Board to satisfy us of the soundness of its decision.
Turning now to the matter at hand, it is clear to us from a review of the evidence that the Board came into possession a clear body of factual information supporting allegations of alleged misconduct by Chief Moyle respecting telephone use and overtime l5 months before it brought disciplinary charges and served a Notice of Hearing on him. Its subsequent internal investigation into the use of telephone merely supplemented the information it had.
It is also clear that while the Board awaited the course of action that the Ontario Provincial Police would take, it did not discuss whether the delay was reasonable. The arguments made before us with respect to the delay are arguments made after the fact.
Further, the Board had a number of choices available to it. They were:
(1) Proceeding with disciplinary charges against Chief Moyle in August of 1993;
(2) Waiting up to six months after August of 1993 to determine whether or not criminal charges would be brought and if not laying disciplinary charges to preserve the limitation period; or
(3) Awaiting the outcome of the criminal investigation and charges and basing any disciplinary action on convictions arising from that process.
In this case the Board did none of the above.
It set aside disciplinary considerations pending the outcome of criminal investigation. Fifteen months later it chose to act on those matters which did not become the subject of a criminal proceeding. Presumably it reserves the right to take further disciplinary action if any convictions are obtained on the six outstanding criminal charges.
In the circumstance, it does not strike us that this is either a fair or reasonable position to take or that the requirements of subsection 60(12) have been met.
Accordingly, It is therefore ordered, that the charges of misconduct laid against Chief Barry Reginald Moyle on October 17, 1994 be quashed.
DATED THIS THE 19TH DAY OF JUNE, 1995.
Murray W. Chitra, Chair Alok Mukherjee, Member
per Murray W. Chitra, Chair