ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE GUIDO CRISTIANO
Appellant
-and-
METROPOLITAN TORONTO POLICE SERVICE
Respondent
DECISION
Panel: Raymond G. Leclair, Member
Raymond J. Silenzi, Member
Hearing Date: October 11, 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:
Raymond G. Leclair, Member
Raymond J. Silenzi, Member
Appearances:
Harry G. Black, Counsel for the Appellant
George Monteith, Counsel for the Metropolitan Toronto Police Services Board
Hearing Date: October 11, 1996
- This is an appeal of an April 7, 1995 decision of the Metropolitan Toronto Police Services Board confirming two convictions of misconduct made by SuperintendenT Gary Madrick on January 26, 1994. It is also an appeal of the penalty of forfeiture Of two days' off imposed concurrently with respect to both offences.
Background:
On July 20, 1992, Constable Cristiano was charged with 4 counts of contravening the Code of Offences contained in Regulation 927 of R.R.O. 1990, as amended (the "Code").
The specific charges related to allegations of discreditable conduct contrary to section 1(a)(i), deceit contrary to section 1(d)(i), neglect of duty contrary to section 1(c)(iii) and insubordination contrary to section 1(b)(ii).
During the course of the disciplinary proceedings no evidence was brought forward with respect to the allegation of discreditable conduct. Further, Superintendent Madrick was not satisfied that there was sufficient proof tendered to support a conviction for neglect of duty. Accordingly, both charges were dismissed.
It is the remaining two charges which are the subject of this appeal.
Decision:
The allegation of deceit related to statements made in Constable Cristiano's notebook concerning his activities while on patrol on February 4, 1992.
At the original disciplinary hearing the officer acknowledged leaving his patrol area on that date during working hours to attend a chiropractor's appointment. Evidence confirmed that the chiropractor's office is a short distance out of the officer's patrol area. Constable Cristiano alleges that he had permission for this. There is some debate on this question, however, we don't believe it relevant to a finding in this matter.
Constable Cristiano was observed at about 10:24 a.m. attending his chiropractor's office and remained until 11:02 a.m. Later that date he recorded in his notebook:
0810 to 2265 Keele Street re: Court 10-7 Above
1030 Return to area
1040 10-8 Main routes re: slippery roads
1315 to Station re: reports shift.
It is apparent on the record that the officer made entries in his notebook which were clearly inconsistent with his activities.
In particular, Constable Cristiano did not return to his area at 10:30 a.m. as he documented. He made observations about the road conditions at a time when he was not on the road. No mention is made of his attendance at his chiropractor's office.
The officer argued that it was common practice, at least in some stations, to omit noting the exact particulars of where one was. Although this may be the case, we find it unacceptable to make notes which are both inaccurate and misleading.
The purpose of an officer's notebook is to provide a clear, creditable record of the officer's activities and observations of various matters which may be of vital use later to refresh his or her memory. Misstatements such as in this case only serve to undermine the usefulness and credibility of an officer's notebook for all officers.
It was argued by Mr. Black that this was a private matter, that it did not affect his client's duties and was not particularly noteworthy. However, we observe that only four days before, this officer had been admonished for being out of his patrol area and we would think that in order not to again be accused of such an indiscretion, he would have noted the matter in the official record of his duties.
We find that the record disclosed sufficient evidence for the hearing officer to have properly found the officer guilty of the charge of deceit in that he "knowingly makes or signs a false statement in an official document or book".
In an unrelated event, on June 24, 1992 two Tonfa Sticks were found in Constable Cristiano's locker, one bearing the badge number of another officer who had reported his Tonfa Stick lost.
Constable Cristiano, who was at the time suspended from duty with pay, was summoned to the station and asked to answer questions about this matter. He was advised that he was not being investigated with respect to possible criminal charges in relation to the sticks.
Constable Cristiano, his Association representative and his questioners got into a dispute regarding his obligation to answer questions concerning the equipment. After some discussion, as a reasonable compromise, Constable Cristiano was permitted to leave without providing any information, but was ordered to submit a written report within seven days.
Constable Cristiano subsequently failed to submit a report or provide a timely excuse or explanation for his lack of response. It is this failure that gave rise to the charge of insubordination. The relevant provision of the Code defines insubordination as "without lawful excuse, disobeys, omits or neglects to carry out any lawful order".
Constable Cristiano states that he did not provide the report on legal counsel's advice and, therefore, should not be penalized. We do not accept this argument. Even assuming Constable Cristiano acted on the advice of a lawyer, this does not excuse him from the consequences of his conduct. In this situation, he appears to have deliberately disobeyed, what would seem to us, to be a proper order without a timely response or lawful excuse.
Mr. Black also argues that to penalize his client would deny his right to counsel as guaranteed by the Canadian Charter of Rights and Freedoms and principles of natural justice. We do not find this to be the case. First, he was not arrested, detained or even the subject of a criminal investigation. Further, according to his own evidence, he was provided with the opportunity and sought legal counsel during the seven days he had to submit the report.
Mr. Black also asserts that the order directed to his client to provide a report was not lawful as he was under suspension. Counsel presented us with a copy of the Metropolitan Toronto Police Service's Regulations dealing with suspended members. Subsection 4.29.1 provides that "When a member is suspended from duty, he shall report to his Unit Commander each week-day by telephone or in person as directed by his Unit Commander". We are invited to understand that such reporting was the officer's only obligation during his suspension. Counsel draws our attention to section 71(4) of the Police Services Act, R.S.O. 1990, c. P.15, as amended which states "while suspended, the officer shall not exercise any of the powers vested in him or her as a police officer or wear or use
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clothing or equipment that was issued to him or her in that capacity". He also cites section 42(1) which lists the duties of a police officer, among others, as "(g) performing the lawful duties that the chief of police assigns". He suggests that read together, they imply that a suspended officer is exempted from any obligation to observe any order.
We do not accept this argument. It is not correct to suggest that while an officer is suspended, with full pay and benefits, the officer is under no obligation to comply with orders from his or her superiors which would otherwise have been lawful had the officer not been under suspension. The officer remains employed and must comply with the Service's legitimate requests.
On the facts of this case, the officer was simply being requested to prepare and submit a report regarding equipment belonging to the employer. Notwithstanding his suspension, he had a duty to comply.
We, therefore, dismiss the appeal against both convictions. Further, we see no reason to alter the penalty imposed, which we find to be in the lower range of the spectrum available to the hearing officer.
DATED THIS 4th DAY OF FEBRUARY, 1997
Raymond G. Leclair Raymond J. Silenzi Member, OCCPS Member, OCCPS