Ontario Civilian Police Commission
In the matter of The Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
Constable Gerard Rooney
Appellant
-and-
Sault Ste. Marie Police Service
Respondent
Decision
Panel: Raymond G. Leclair, Member Raymond J. Silenzi, Member
Hearing Date: June 25, 1997
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: Anthony P. Marrato, Counsel for the Appellant Frank S. Sarlo, Counsel for the Respondent
Hearing Date: June 25, 1997
1Constable Gerard Rooney was charged with insubordination in that he, without lawful excuse, disobeyed, omitted or neglected to carry out a lawful order, contrary to the Police Services Act of Ontario, Regulation 927, Code of Conduct, in that he stored his issued firearm at the Police Services Building in an insecure locker, contrary to Policy Order 95-01, Section 5.2 which states:
Every officer who stores his/her firearm at the Police Services Building, shall store the firearm in a secure locker or desk drawer which shall be locked.
Background:
2In June of 1996 Constable Rooney stored his issued firearm in an insecure locker of the Sault Ste. Marie Police Services' building. As a result of this incident, Constable Rooney was found guilty and was offered informal discipline pursuant to Article 5.1(c) of Policy Order #88-55. The penalty was forfeiture of time off, 24 hours.
3Constable Rooney rejected the informal discipline and subsequently was charged with Insubordination in August of 1996.
4A formal hearing followed. Constable Rooney was convicted and a penalty of 24 hours forfeiture of time off was assessed against him. The officer appeals both the conviction and penalty, on the grounds that:
- the offence is a strict liability offence and as he had no intention to disobey the order and had a lawful excuse, he should not have been convicted.
- The penalty was inconsistent and excessive in the circumstances.
Decision:
5This is a situation of a loaded firearm being left unsecured by an officer after his tour of duty. Although the firearm is in a restricted area of the Police Services Building, it could be accessible to non-authorized individuals, either legitimately in the building or to someone who gained access for other purposes. Anyone who has the control of a firearm in Ontario is required to see to its proper storage and handling. Police officers are issued their firearms as essential equipment to perform their duties. It does, however, remain their individual responsibility to ensure that their firearm is secure, as confirmed by the Policy Order.
6Constable Rooney's locker was found closed with the lock in the proper place to secure the locker and in the proper position, so that if simply pushed up it would be locked. Although, at a glance, the locker appeared to be secure, on closer observation, it was evident that the lock had not been properly closed in order to prevent it from being opened without the combination. The officer stated that he had no intention to leave his locker open and the prosecution readily accepted that there was no element of intention in this case. The officer had not, however, complained that his lock did not operate properly and never requested that a new lock be issued to him. In fact, the service had the lock professionally tested and the results confirmed that it was working properly.
7Constable Rooney put forward evidence by an expert locksmith that the lock was of inferior quality to what could be purchased and not one that he would recommend for the safe storage of firearms. He indicated that this type of lock is used by thousands of school students on their lockers and preferred because of its ease of use and reliability once closed.
8Constable Rooney was upset that he was being punished for something which he indicated could happen any day because of mechanical or human error. He believed that the proper response was for the service to implement changes to the storage process to improve the security and not to prosecute individual officers whose firearms are found not to be properly secured. The prosecution pointed to an enforcement campaign of unannounced regular inspections and discipline to show that the objective had been achieved by general deterrence. Although Constable Rooney may be right in that there are better ways of securing firearms which could eliminate or reduce the mechanical or human error elements, we believe that is a matter for labour management negotiations. (He also has other options to secure his firearm and therefore cannot complain about the problems with this method if he chooses to avail himself of it.)
9We agree that this is a strict liability offence as described by Dickson J. In Regina v. Sault Ste. Marie (1978), 1978 CanLII 11 (SCC), 2 S.C.R. 1299, at page 27:
In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence