Provincial Constable Gilbert A. Morin v. Ontario Provincial Police, 1996 CanLII 17304

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

PROVINCIAL CONSTABLE GILBERT A. MORIN Appellant

-and-

ONTARIO PROVINCIAL POLICE Respondent

DECISION

Panel: Diana A. Jardine, Member Karl R. Fuller, Member

Hearing Date: June 17, 1996

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: Diana A. Jardine, Member Karl R. Fuller, Member

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

Hearing Date: June 17, 1996

THE FACTS:

1This is an appeal under the Police Services Act, R.S.O. 1990, c. P.15 (the "Act") from a conviction of Discreditable Conduct made against Constable Gilbert A. Morin of the Ontario Provincial Police.

2The charge indicates that, contrary to section 1(a)(i) of the Code of Conduct contained in Regulation 927 of the Revised Regulations of Ontario, he did obstruct workers employed by the North Himsworth Township (the "Township") working in front of his property, and did on October 22, 1992, throw a worker's hat in a ditch.

3The facts in this case disclose that a dispute existed between the Township and Provincial Constable Morin over the ownership of a parcel of land adjacent to a public roadway. The Township had assigned a work crew to remove an amount of fill from a ditch adjacent to Constable Morin's driveway, in order to allow for required drainage of water. The Township held the view that it could, within its right, carry out ditching operations sufficient to permit the easy flow of run-off water and in so doing, protect the road surface from erosion.

4On October 21, 1992, OPP Sergeant Douglas Arthur was informed of a call from the North Himsworth Township advising that the Appellant was interfering with the road crew in front of his property. The sergeant responded and patrolled West Falls Road at the site of the dispute. On arrival he found Constable Morin standing in close proximity to the hoe bucket with a piece of stick laid out on the ground from his fence toward the ditch. This stick, measuring about four feet, represented the approximate area in dispute. Constable Morin advised that the crew was taking out fill too close to his property, and wanted to demonstrate that the workers were taking fill from within his property boundary. He explained that he needed to run his ride-on lawn mower between the fence and the ditch and would not be able to do so if the Township crew removed the fill as they were doing.

5Sergeant Arthur advised the Appellant that the dispute was of a civil nature which should be pursued through the courts, and further advised the Appellant that if he obstructed the work he could be charged. Over Constable Morin's objections, the work proceeded.

6The facts disclose that there existed two conflicting sets of belief with respect to ownership over the piece of land in dispute. On the one hand, the Township believed that it had the right to dig the ditch in the interest of maintaining the public roadway against damage resulting from run-off from Constable Morin's property. It relied on legal advice from the town solicitor, supported by an opinion from a member of the Ministry of Transportation, supporting the legal right of the Township to carry out the ditching procedures. The Appellant relied on the property survey drawing prepared by Richard D. Miller, an Ontario Land Surveyor, which attested to the fact that the ditch was located entirely on the Appellant's property.

THE ARGUMENTS:

7Mr. Temple for the Appellant, argued that there was not clear and convincing evidence presented at the hearing sufficient to convict the Appellant. He made a number of submissions, including the following.

1. That the Adjudicator erred in comparing the conduct of the Appellant to the alleged conduct of an environmental group or others in British Columbia or Temagami when no evidence of the alleged conduct was presented and counsel was not given an opportunity to make submissions as to the appropriateness of this comparison.

2. That the Adjudicator erred in holding that the Appellant did not have legal or quasi-legal advice prior to October 21, 1992, and in failing to hold that the Appellant had responded to the Township solicitor's letter and had indicated a willingness to have the matter submitted to the courts for decision.

3. That the Adjudicator erred in referring to the disappearance of two shovels when this was not a part of the charge to the Appellant, and when it was not explored by either counsel.

4. That the Adjudicator erred in failing to accept the expert evidence presented by an Ontario Land Surveyor that the Township was trespassing on the Appellant's property and that the Appellant had a right to object to the work that they were performing.

5. That the dispute was a private matter involving the use and enjoyment of private property and that the Appellant acted in good faith and in a professional manner in keeping with his position as both a tax payer and as a police officer.

THE RESPONDENT:

8Inspector Shard for the Respondent, presented a series of statements which either further clarify or expand upon the issues raised in testimony of his witnesses. In Part III of his Factum, he raised a number of principles relating to The Issues and the Law. These are as follows:

1. That where any factual finding is contested, the facts should not be disturbed unless they are either self-evidently wrong or contain a clear error so that they are void of evidentiary foundation.

2. That once the facts have been established, the issue becomes simply whether "discredit" is "likely".

3. That the Adjudicator is neither making a finding of fact, nor referring to any legal principle when he draws the analogy to the environmental protests, but is simply attempting to consider whether discredit is likely.

4. That the Adjudicator was correct in holding that the Appellant had no legal advice prior to October 21, 1992, and that this is relevant to the issue of "likely discredit".

5. That while the Appellant had at one point indicated a willingness to have the matter submitted to the courts, he had also indicated to the Township that they could "Go ahead and dig it out".

6. That the Adjudicator draws no conclusions about the missing shovels, and did not take the issue into consideration in considering Discreditable Conduct.

7. That the Adjudicator was correct in focussing on whether the Appellant's actions were "likely to bring discredit", and refusing to decide the civil issues.

8. That the police constable's conduct is measured by a much higher standard than that of the ordinary citizen.

9That the conduct may be the subject of a disciplinary hearing even when it involves a civil dispute or the matter has been settled in a court of competent jurisdiction, as the different proceedings are substantially different in nature.

10That the Adjudicator correctly considered the complete set of circumstances as they existed at the time of the alleged misconduct.

11That the necessity of the ditch was a relevant factor to be considered as it addresses the effects of the Appellant's actions upon his neighbours, the Township and the motoring public.

12That the Adjudicator's trip to the property did not cause the Appellant any prejudice in that it did not affect the decision.

REASONS FOR DECISION:

9. In formulating our decision it is necessary to take into account the nature of the conduct which either brought or would likely bring discredit upon the Ontario Provincial Police. Inspector Shard made the point that the test has to:

(a) be in the eyes of a reasonable person without reference to the actual discredit

(b) be determined at the time of the offence.

10. He directed our attention to the decision of the Ontario Police Commission in Johnson and Barrie Police, (1985), 2 O.P.R. 643. While the principles of discredit and likely discredit are well presented, we find that the conduct in the Johnson case was by far more serious than in Morin's, and that a reasonable person can easily determine that the reputation of the force was more likely to be tarnished in Johnson's case. The concept of reasonableness must include an examination of the actual conduct which would or would likely bring discredit.

11. In this case we have a police officer honestly believing that the Township committed an encroachment upon his property. He relied upon the evidence of survey stakes and a survey plan for the basis of the position which he took.

12. We note that the justification for the Township's actions throughout this incident in proceeding with the digging in front of Constable Morin's property was the legal opinion of the municipal solicitor. In fact, on October 6, 1992, Constable Morin addressed the Township council regarding his property, the road and the ditch and requested that the Township hold off on the ditching until the matter could be resolved legally.

13He also stated that he felt the municipal solicitor was in conflict. Furthermore, he also wrote the municipal solicitor on September 30, 1992, indicating that he objected to anyone coming onto his property to do the ditching and was prepared to go to court to have it decided. Evidence would indicate that neither the Township nor the municipal solicitor acted on Constable Morin's offer to have the matter decided through civil litigation.

14The opinion of the Ontario Land Surveyor who did the survey of Constable Morin's property was that he did not believe the road in question was a "forced road" and the general practice of municipalities in this situation was to first acquire an easement or to acquire titles to the land, or in a worse case scenario, expropriate. There is no evidence that the Township attempted to do any of these things.

15Of equal concern are the actions of the officers when called to the site on October 21, 1992. Even when Constable Morin showed pictures and surveys which indicated the crew was digging on his property and could be trespassing, the Township was allowed to continue their work. Constable Morin was advised that this was a civil matter and he should go to civil court.

16A rational person would have expected, in a situation where the civil actions of one party could be damaging the property of another, and there was some legitimacy to their position, that the attending police officer would have advised both parties to cease their actions until a court could make a ruling.

17The remaining issue is the actions of Constable Morin in removing the hard hat from his fence post. This act does not appear to have been aggressive in nature. Evidence indicates that one of the road crew, for unknown reasons, set his hard hat on one of the fence posts of Constable Morin's property instead of on the equipment or the ground. In reference to Constable Morin removing this hard hat, the equipment operator testified that:

"It was just a toss because the fence post was very close to the ditch there . . . the hat was not damaged"

18In conclusion, we find that Constable Morin did nothing more than any other citizen would do in preventing the encroachment on his property by the town.

19In fact, his conduct was of a far higher standard than might be expected under the circumstances. Overall, he displayed a reasonable level of calm, avoiding any form of insulting behaviour. At no time was he threatening or abusive to the town or the road crew in a manner which might bring discredit upon the force.

20We see the actions of Constable Morin as a citizen concerned over the destruction of his property, as someone who acted in a civil and professional manner throughout. His conduct was only that of a person expressing concern over the destruction of his property. We are not convinced that his actions either did, or were likely to bring discredit to the Ontario Provincial Police.

21In our view there is insufficient evidence to support a finding of Discreditable Conduct.

22We, therefore, allow the Appeal and quash the finding of guilt.