Provincial Constable W.G. McNab v. Ontario Provincial Police, 1997 CanLII 22041

Background:

1. Constable McNab brings this appeal under the Police Services Act, R.S.O. 1990, c. P. 15 as amended (the “Act”), from convictions on four counts of Discreditable Conduct contrary to section 1(1)(i) of the Code of Conduct contained at R.R.O. 1990, Reg. 927 (the “Code”) imposed by Superintendent R.J. Fitches (the “Hearing Officer”) on March 4, 1996.

2. Count One alleges that Provincial Constable McNab associated with D.M.1, a person whom he knew or ought to have known had a criminal record.

3. Counts Two and Three allege that in 1993 and 1994, Constable McNab registered his address as Haileybury, a northern Ontario community, on his vehicle license renewal application knowing this information to be untrue. Constable McNab was found guilty of the 1994 offence in Provincial Court and was fined $100.00.

4. Count Four alleges that during a trip to Florida with D.M. driving, Constable McNab attempted to influence the enforcement actions of an Ohio State Trooper who had stopped them for speeding.

5. In addition, Constable McNab appeals the penalties imposed for these offences by the Hearing Officer on April 1, 1996. The penalties in question were forfeiture of 5 days time on the first count and loss of 5 days pay for each of the remaining offences.

The Facts

Count One:

6. Constable McNab first met D.M. in 1992. D.M. had sold a number of cellular phones to O.P.P. officers working at the Downsview detachment. D.M. had posters up around the detachment indicating that he was a Cantel agent. At some point a number of officers discussed the need to ensure that they were in the right price plan.

7. As a result, a memorandum dated April 21, 1992 signed by Superintendent A.D. Crake was posted at the detachment advising officers that they were not entitled to a “government rate” on cellular phones purchased for personal use.

8. Subsequently on October 22, 1992 Superintendent A.D. Crake sent a second memorandum entitled “Personal Cellular Telephones”. It read:

It has come to my attention that an individual has been attending at O.P.P. detachments and selling cellular telephones at a reduced rate to members.

This individual, identified as D.M., apparently has an extensive criminal record which includes a conviction for smuggling cellular telephones.

I am instructing that this person not be allowed to enter the non-public area of any detachment, and that he not be permitted to solicit business in O.P.P. buildings. Furthermore, members are reminded of the contents of my memo of 21 Apr. 92, concerning reduced cellular rates for O.P.P. employees (copy attached).

Please ensure employees under your command are made aware of the contents of this memorandum.

9. A copy of this memorandum was posted at the Downsview detachment. Constable McNab claimed that he didn’t see the memo until October or November of 1994.

10. Several months prior to this Constable McNab, another constable, and D.M. went to Florida on a vacation to attend a “bike week” at Daytona Beach. Before the trip, a number of contacts between Constable McNab and D.M. had taken place to discuss the need to arrange for a bike trailer.

Counts Two and Three:

11. Constable McNab on two separate occasions completed a Ministry of Transportation vehicle permit renewal using a northern Ontario address which was once the residence of his brother. At the time of the applications, Constable McNab was, in fact, residing in North York. The normal $90 fee was waived on both occasions. The fees would not have been waived if the correct North York address was given. In defending his actions, Constable McNab stated that he was not aware that the Haileybury address was a “northern” address. He explained that on occasion police officers have used false identification in order to protect their identity. He became aware of the practice while posted at Guelph detachment. The Respondent’s factum indicates that in each such case, each officer had to discuss the matter with the Ministry of Transportation officials before making the arrangements, and the arrangements appeared to have been coordinated by someone within the Police Service.

Count Four:

12. While driving through Ohio, on the return trip from Florida, D.M. was pulled over for speeding by a State Trooper. Constable McNab was the owner of the car and was sitting in the rear seat directly behind D.M. Constable McNab directed the driver to retrieve the insurance paper and indicated to the Trooper that the insurance slip had expired and that he had a current slip at home. In evidence, Constable McNab stated that he told the trooper that he was a police officer in Ontario, and that if someone didn’t have a current insurance slip on them, they are given 48 or 24 hours notice to bring it in. He offered to fax the certificate directly to the officer if he wanted him to do so. The testimony of the Appellant’s conversation conflicted with that of Constable Amerlinck (the other officer seated in the front passenger seat.) Constable Amerlinck, in evidence, reported Constable McNab as saying to the Trooper, “Would it make a difference if I were a police officer?” This was done after the Trooper took papers from the driver and was heading back to his cruiser.

Decision:

13. The issue that needs to be clearly established is whether Constable McNab, having full knowledge of the correct course of action, willfully engaged in conduct that was discreditable. The first of these relates to his association with D.M. who had criminal convictions registered against him. Significant among these was the conviction for transporting a concealed weapon across the USA-Canada border.

14. Testimony revealed that written instructions were sent from the District Commander, as early as October 22, 1992 directing that D.M. should not be allowed on the public premises of the Downsview detachment. Evidence was presented to confirm, in addition to the memo being posted in the usual manner, that the Command Officer had spoken directly to Constable McNab. The substance of this conversation is in dispute given the passage of time.

15. Notwithstanding this, the evidence shows a clear association between D.M. and Constable McNab which lasted for a substantial period of time. Their association included visits to each other’s residence, social visits to bars and the use of each other’s motor vehicles on occasion. There is also evidence to support some knowledge on Constable McNab’s behalf of D.M.’s character. In particular, Constable McNab was interviewed by the Metro Toronto Police Anti-Rackets Unit on October 3, 1994.

16. Despite this, however, we find there is insufficient factual evidence to establish on a clear and convincing basis that Constable McNab was aware of the criminal conviction or other criminal involvement by D.M. The testimony of Detective Sgt.

Burns, Coordinator of Metro Toronto Anti-Rackets project states:

17. There is no information revealed through the investigation by ‘Project Free Trade’ that would indicate the relationships of Provincial Constable McNab with D.M. were anything more than social in nature, or that they were aware of D.M. being involved in the unlawful marketing of stolen automobiles.

18. In fact the Hearing Officer, in his penalty summation, referred to the lack of evidence that Constable McNab continued his friendship with D.M. once he was told of the ongoing criminal investigation. The Hearing Officer stated, as well, that there was no evidence that Constable McNab did anything which could be construed as aiding D.M. in his criminal activities.

19. We therefore quash the finding of guilt on Count One and the penalty of loss of 5 days time.

20. Upon reviewing the explanation given for the use of a northern Ontario address for registering his motor vehicle, we do not find Constable McNab’s argument to be credible. As a police officer, he is in a position of advantage in knowing of the variation in registration fees and the basis upon which those assessments are made. It is our view that Constable McNab used a northern Ontario address in order to avoid paying the prescribed registration fee, and thereby, gain a financial benefit. This conclusion is supported by his 1994 conviction. We uphold the finding of guilt on Counts Two and Three.

21. We accept the evidence by Constable Amerlinck concerning the comments which Constable McNab made to the Ohio State Trooper. Constable McNab’s comments appear to have the potential of influencing the Ohio State Trooper’s actions relative to D.M.’s speeding offence. We therefore uphold the finding of guilt on Count Four.

Disposition:

22. We confirm the disposition of 5 days (40 hours) pay on each of Counts Two, Three and Four, and the appeals against penalty are therefore denied.

23. One prominent consideration in determining an appropriate disposition is the seriousness of the misconduct. Although the three offences in this case do not fall at the most serious end of the spectrum of misconduct, each nonetheless involves considerable ethical impropriety. Provincial Constable McNab’s conduct in respect of the three offences is incompatible with the duties of a police officer and harmful to the integrity of the Ontario Provincial Police, and it would be inappropriate to reduce an already lenient penalty. If the opportunity were available to us, we would have increased the penalty.

DATED THIS 6TH DAY OF JUNE 1997.

Karl R. Fuller Bob Saracino Member, OCCPS Member, OCCPS