ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE ALLAN SIMMONS
Appellant
-and-
THUNDER BAY POLICE SERVICE
Respondent
DECISION
Panel: Karl Fuller, Member Karlene J. Hussey, Member
Hearing Date: Thursday, March 5, 1998
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: Karl Fuller, Member Karlene J. Hussey, Member
Appearances: Mr. Marc Bode, Counsel for the Appellant Mr. R. Edwards, Counsel for the Respondent
Hearing Date: Thursday, March 5, 1998
Constable Simmons has appealed to the Commission against the penalty of dismissal imposed on him by Deputy Chief L. Toneguzzi on July 15, 1997, pursuant to section 61(1) (a) of the Police Services Act, R.S.O. 1990, c. P.15, as amended.
In this case, the Appellant and the Respondent have made a joint submission as to the disposition of the appeal. The joint submission asks the Commission to reduce the penalty to resignation by Constable Simmons and failing a resignation, dismissal within seven days, as permitted by s. 61 (1) (b) of the Act.
The Motion:
Constable Simmons was charged with discreditable conduct contrary to sections 1(c)(i),(ii) and (iii) of the Code of Conduct contained in Regulation 927 of the Revised Regulations of Ontario 1990, as amended.
The Particulars of the Charge are as follows:
While on duty, Constable Simmons repeatedly attended in the early morning hours at the residence of Mr. & Mrs. O. at 701 Tarbutt Street, Thunder Bay, located in area 7 on the Thunder Bay Police area zones. On these occasions, Constable Simmons stopped his police cruiser where it was possible to view into the residence of Mr. and Mrs. O. Furthermore, on August 7, 1996, Constable Simmons also drove his police cruiser around to follow Mrs. O. on her early morning jogging route and then proceeded slowly past the house windows after she returned home. This conduct occurred outside Constable Simmons assigned duty area. This intimidation and harassing conduct caused the O.'s to fear for their safety.
The above actions resulted in Constable Simmons being out of his assigned work area and thereby did idle and without lawful excuse, at that time, neglect to perform the duty as a member of the Thunder Bay Police.
On May 23, 1997, Constable Simmons was found guilty of discreditable conduct by a decision rendered by Deputy Chief L. Toneguzzi. Constable Simmons appealed the decision to the Thunder Bay Police Services Board and the Board, by way of Motion, declined to hear the Appeal and referred the matter to the Commission.
In the process of preparing for the Appeal it appeared that a material part of the record was inadvertently destroyed. Any reconstruction of this matter would be difficult in light of these circumstances. The parties were faced with the option of a new hearing and this was not an alternative that either the Appellant or the Respondent wanted. Consequently, the parties arrived at a settlement allowing the finding of guilt to stand and to substitute a penalty allowing Constable Simmons to resign within seven days of the order made by the Commission. The minutes of the settlement were executed and Constable Simmons has also executed a letter of resignation to be held until the order is made.
In their joint submission the parties argue that this is the appropriate position to take for the following reasons:
This serves the interest of the public as the officer would be removed from the Police Service and any uncertainty created by an appeal would be eliminated.
The victim would be spared a repeat of the emotional and trying experience of testifying in a new hearing.
The Police Services Board would be spared the cost of a new hearing
Decision:
The penalty which is proposed by the parties is not out of the range of penalties imposed for serious disciplinary offences such as the matter for which Constable Simmons has been found guilty. We are in agreement with both parties that the substitute penalty does not compromise the integrity of the process and it satisfies both the public and private concerns relating to this matter.
In the circumstances, we accept the joint submission of the Appellant and Respondent to vary the penalty of dismissal and direct that Constable Simmons is dismissed in seven days unless he resigns before that time.
DATED THIS 24TH DAY OF MARCH, 1998.
Karl Fuller Karlene J. Hussey Member, OCCPS Member, OCCPS