ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE MATTHEW JEARY

Appellant

-and-

WATERLOO REGIONAL POLICE SERVICE

Respondent

DECISION

Panel: Murray W. Chitra, Chair

G. Douglas Smith, Member

Charles B. Rycroft, Member

Hearing Date: Tuesday, January 11, 2000

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:

Murray W. Chitra, Chair

G. Douglas Smith, Member

Charles B. Rycroft, Member

Appearances:

Ian J. Roland, Counsel for Appellant

Christopher G. Riggs, Q.C., Counsel for Respondent

Anthea E. Millikin, Counsel for Respondent

Hearing Date: Tuesday, January 11, 2000

1. This is an appeal from three findings of insubordination contrary to section 2(1)(b)(ii) of Reg. 123 R.R.O. 1998 (the "Code") made pursuant to the Police Services Act, R.S.O. 1990, c. P.15 as amended (the "Act").

2. These findings were made following a hearing conducted before Superintendent Brian Koepke (the “Hearing Officer”) whose decision was rendered on April 15, 1999.

3. There is no appeal arising from the penalties imposed.

Background:

4. There is no dispute as to the events leading to the allegations made against the Appellant. An agreed statement of facts was presented to the Hearing Officer. It can be summarized as follows:

• Matthew Jeary (“Jeary”) is a sworn member of the Waterloo Regional Police Service (the “Service”) and holds the rank of first class constable. Jeary has been a constable with the Service since November 22, 1991. On November 22, 1991 Jeary signed a declaration that he would abide by the rules and regulations of the service. On May 28, 1998 Jeary was assigned to uniform patrol duties at Division 3 and was scheduled to work from 16:45 hours to 02:45 hours.

• Sergeant Sharma (“Sharma”), Jeary’s field supervisor, stated that prior to May 28, 1998 Jeary had voiced his displeasure about the Service’s directive on beards. Jeary told Sharma that it should be his right to wear a beard if he wanted to do so. Jeary further stated that every other police department in Ontario except Waterloo allowed their officers to wear beards.

• Sharma counselled Jeary to deal with his displeasure by approaching the Police Association on the matter. Sharma cautioned Jeary against taking a militant approach and advised him that disciplinary reaction could be the result.

• On Thursday, May 28, 1998 Jeary reported to work at 16:40 hours, and attended a briefing conducted by Sharma wearing a four to six-day growth of beard. Jeary was dressed in police uniform at the time. The beard was neatly kept and trimmed around the edges.

• Sharma brought Jeary before Staff Sergeant

Nagelesen (“Nagelesen”), Jeary’s platoon supervisor at 17:20 hours. Nagelesen provided Jeary with a copy of the Service’s Personal Appearance Directive 97-58 and had Jeary read it. Jeary indicated his understanding of the directive.

• Nagelesen ordered Jeary to shave off the beard. Jeary in a respectable manner said, “I don’t believe this is a lawful order sir and I won’t do it”. Jeary was polite, professional and respectful in his dealings with both Sharma and Nagelesen.

• Nagelesen placed Jeary under suspension and told Jeary to change and go home. Jeary completed some outstanding reports in civilian attire for an hour or so and then left the Division.

• Superintendent W. Stevens (“Stevens”) the Commander of Division 3 contacted Jeary at home on Friday, May 29, 1998 and requested Jeary’s attendance at Division 3.

• At 12:00 hours, Stevens met with Jeary at Division 3. Jeary advised Stevens that the issue of beards had been dear to his heart for several years and that he wore one prior to joining the police service seven years ago. Stevens advised Jeary of the regulations relating to personal appearance. Jeary indicated he was aware of the regulations but maintained his stand on the issue even if it meant discipline under the Act.

• Stevens ordered Jeary to shave his beard. Jeary said he would not shave off his beard. Stevens advised Jeary he would remain under suspension until further notice.

• Jeary remained under suspension for four consecutive, ten-hour shifts. Jeary attended at Division 3 on Sunday, May 31, 1998 and indicated his desire to return to work to Nagelesen. Nagelesen referred Jeary to Stevens.

• Jeary’s suspension was ended by Stevens on June 2, 1998. Jeary returned to work on Monday, June 8, 1998 after a period of annual leave. Jeary was clean-shaven and resumed normal duties.

• Jeary was not given permission by the Chief of Police to wear a beard and did not provide either medical or religious grounds to the Service to be considered for an exemption of the directive.

Allegations:

5. As a result of his conduct, Constable Jeary was the subject of three allegations of insubordination contrary to section 2(1)(b)(ii) of the Act.

6. These alleged contraventions can be summarized as follows:

• That on May 28, 1998, Jeary attended for duty in uniform wearing a beard contrary to standing order 97-58 of the Chief of Police.

• That on May 28, 1998, Constable Matthew Jeary having attended for duty wearing a beard contrary to standing order 97-58 of the Chief of Police and after having been ordered by Staff Sergeant Nagelesen to shave off his beard, refused to comply with the order.

• That on May 29, 1998 Constable Matthew Jeary having met with Stevens, and after being ordered by Stevens to shave off his beard refused to comply with that order.

The Hearing:

7. The Appellant’s disciplinary hearing took place on November 30, 1998 and on February 15, 1999. He denied the allegations of misconduct.

8. The Hearing Officer accepted an agreed Statement of Facts and heard testimony from the Appellant and other witnesses. In addition, fifteen exhibits were received. Mr. Ian Roland acted as Counsel for the Appellant at the hearing. The Service was represented by Ms. Anthea E. Milliken.

9. On April 15, 1999 the Appellant was found guilty of all three charges.

The Appeal:

10. Mr. Roland, on behalf of Constable Jeary appeals the Hearing Officer’s findings. Ms. Millikin appears for the Respondent.

11. At the commencement of the proceedings Mr. Riggs, also on behalf of the Respondent, brought a motion seeking to have the appeal adjourned.

Motion:

12. The request for an adjournment relates to other proceedings. In December of 1998, the Waterloo Regional Police Association (the “Association”) requested that a conciliation officer be appointed under section 123 of the Act. The matter identified as being in dispute was the Board’s “beard policy” which gave rise to the disciplinary action against Constable Jeary. The specific allegation was that the policy was in violation of section 2.01 of the Collective Agreement between the Waterloo Regional Police Services Board (the “Board”) and Association.

13. When conciliation failed, Ms. Paula Knopf was appointed as an arbitrator pursuant to section 124 of the Act. The matter was argued in Cambridge on October 27, 1999. A decision was released on November 23, 1999. A second decision was released on December 3, 1999 correcting a number of typographical errors.

14. On January 7, 2000 the Service filed an application for judicial review of the arbitrator’s decision. The essential challenge relates to the authority of the arbitrator to make a ruling with respect to the legality of the policy. This disciplinary appeal commenced four days later.

15. Mr. Riggs argued that the application for judicial review raises an important issue for police services boards. He suggested that this appeal be deferred until such time as Divisional Court can provide some guidance on the relationship between the provisions of the Act, the collective agreement and the jurisdiction of the Commission and an arbitrator on matters of disciplinary policy and disciplinary application. He pointed out the unsatisfactory situation that would arise if the Commission and arbitrator were to issue conflicting decisions.

16. Mr. Roland opposed the request for an adjournment. He argued that section 70(2) of the Act requires that we proceed with a hearing. He pointed out that we have jurisdiction to decide matters in dispute regardless of the decision of the arbitrator or any ruling of the court.

17. He suggested that the potential of conflicting decisions should not concern us. In this regard, he drew our attention to United Steelworkers of America, Local 14097 v. Franks and Domgroup; Attorney General of Ontario, Intervenor (1990), 1990 CanLII 6666 (ON CTGD), 75 O.R. (2d) 382 (Ont. Div. Ct.) and Shaw Cable Systems (B.C.) Ltd. et al. v. British Columbia Telephone Co. et al. (1995), 1995 CanLII 101 (SCC), 125 D.L.R. (4th) 443 (S.C.C.).

18. He argued that there are many situations where tribunals have concurrent jurisdiction and conflicting decisions can arise. These are acceptable so long as they are not “operationally irreconcilable”. He suggested that Divisional Court would be assisted by our ruling.

19. Mr. Roland also stated that the Service will not be prejudiced by our decision, there is nothing to be gained by delay and there is no practical or legal reason not to proceed.

20. We considered these submissions and concluded that this appeal should proceed. Section 21 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 as amended states:

21.A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.

21. We are not satisfied that an adjournment is necessary to permit us to hold an adequate hearing.

22. Both parties agree that the matter is properly before us. Further, both parties agree that we have the authority to determine the issues in dispute. This would not be altered by any ruling of the Divisional Court with respect to Ms. Knopf’s decision.

23. Accordingly, we ruled that the appeal should proceed.

Appellant's Position:

24. Mr. Roland, on behalf of the Appellant, challenges the decision of the Hearing Officer upon grounds, which can be summarized as follows:

25. The Board by-law prohibiting the wearing of beards and goatees by uniform officers was an unreasonable employer rule that improperly infringed upon the Appellant’s personal freedom. The Service did not meet its onus to establish that the rule had any legitimate operational or business reason or purpose. As a result, the bylaw could not be a basis for a lawful order.

26. The Hearing Officer had a duty to decide the “reasonableness” of the prohibition against the wearing of beards or goatees but failed to do so, improperly deferring to a “higher authority”.

27. In any event the Ontario Civilian Commission on Police Services (the “Commission”) as a “higher authority” must determine the “reasonableness” of the Board beard policy. In this respect, the Service’s beard policy is unreasonable by any standard of employment law and hence cannot constitute a legitimate or “lawful” basis for an order requiring the Appellant to shave off his beard.

28. During the course of his argument Mr. Roland referred us to the following authorities: Brown, D. and Evans, J., Judicial Review of Administrative Action in Canada (Toronto: Canvasback, 1998), O.P.S.E.U. v. Ontario (Minister of Natural Resources) (1990), 1990 CanLII 6626 (ON CTGD), 47 Admin. L.R. 83 (Ont. Div. Ct.), Sergeant Richard G. Chapman and Nepean Police Service (1974), 1 O.P.R. 176 (O.P.C.), Constable Dennis Alexander and Metropolitan Toronto Police Service (1973), 1 O.P.R. 138 (O.P.C.), Re Thompson and Town of Oakville (1964), 1963 CanLII 254 (ON HCJ), 1 O.R. 122 (H.C.), Nicholson v. Haldimand-Norfolk Regional Police Commissioners 1978 CanLII 24 (SCC), [1979], 1 S.C.R. 311 (S.C.C.), Re Trumbley and Fleming (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2d) 570 (C.A.), Re Lumber & Sawmill Workers’ Union, Local 2537 and KVP Co. Ltd. (1965), 1965 CanLII 1009 (ON LA), 16 L.A.C. 73, Re International Association of Fire Fighters, Local 626, and Borough of Scarborough (1972), 1972 CanLII 1981 (ON LA), 24 L.A.C. 78, Canadian Union of Public Employees, Metropolitan Toronto Civic Employees’ Union, Local 43 and Metropolitan Toronto (Municipality) (1990), 1990 CanLII 6974 (ON CA), 74 O.R. (2d) 239 (C.A.), Brown, D. and Beatty, D., Canadian Labour Arbitration, 3rd ed. (Aurora, Ontario: Canada Law Book, 1999), Re Sudbury Public Library Board and C.U.P.E., Local 207 (1996), 1996 CanLII 20354 (ON LA), 55 L.A.C. (4th) 219, Re Co-op Centre Ltd. and R.W.D.S.U., Local 1065 (1991), 1990 CanLII 12942 (NB LA), 17 L.A.C. (4th) 186, Re Dominion Ltd. and U.S.W.A. (1976), 1976 CanLII 2190 (ON LA), 11 L.A.C. (2d) 401, Re Canadian Freightways Office & Technical Employees’ Union (1995), 1995 CanLII 18278 (BC LA), 49 L.A.C. (4th) 328, E. & J. Gallo Winery (1983), 80 L.A. 765, Union Carbide Corp. (1984), 82 L.A. 1084, Constable Gary W. Parsons and Halton Regional Police Service (1989), 2 O.P.R. 805 (O.P.C.), Constable Ralph Hopiavuori and Waterloo Regional Police Service (1982), 2 O.P.R. 582.21 (O.P.C.) and The Queen v. Spence and Bradshaw (1953), 1952 CanLII 48 (SCC), 1 D.L.R. 241 (S.C.C.).

29. As well, Mr. Roland brought to our attention information relating to the history and public response to the by-law, copies of beard policies for other police services and general statistics on the permissibility of the wearing of beards by police officers across Ontario.

30. Mr. Roland sought an order that the appeal be allowed and that the three counts of insubordination be dismissed. There was no order sought regarding the penalties imposed.

Respondent's Position:

28. Ms. Millikin on behalf of the Respondent made a number of submissions, which can be summarized as follows:

1.The Hearing Officer’s role is to determine whether misconduct was proven on clear and convincing evidence. The Code finds insubordination as occurring when anyone without lawful excuse disobeys, omits or neglects to carry out any lawful order. The lawfulness of the order is determined by whether or not it is properly passed under the statutory authority upon which the order is based.

2. The duty to establish policies for the effective management of a police force rests with the board and once a policy is established it is lawful and binding from the date of its passing.

3. It is not a lawful excuse to disobey an order (absence issues as to human rights or charter rights) because it is objectionable to one’s personal conscience. Whether or not a policy is reasonable is not the same consideration as whether or not an order is based upon a policy, which is lawful.

4. The Commission has power on its own initiative under section 25 of the Act to review the administration of a municipal police force and the manner in which police services are provided for a municipality. This includes board policies. It was argued that this is an independent power separate from disciplinary appeal procedures set out in section 70 of the Act. On appeals the Commission only has the power to confirm, vary, revoke or substitute its own decision for that of the Hearing Officer.

5. The Commission has power on its own initiative under section 25 of the Act to review the administration of a municipal police force and the manner in which police services are provided for a municipality. This includes board policies. It was argued that this is an independent power separate from disciplinary appeal procedures set out in section 70 of the Act. On appeals the Commission only has the power to confirm, vary, revoke or substitute its own decision for that of the Hearing Officer.

6. It was argued that the Hearing Officer should not consider whether a policy is reasonable or not because by doing so the Hearing Officer would be “second guessing” the wishes of the board. This would substitute the Hearing Officer’s objective opinion for that of the board. Similarly, it was argued that the disciplinary proceedings should be resolved on the basis of the evidence of the offence charged and the applicable law. Both the Hearing Officer and Commission would be exceeding their jurisdiction if they considered policy factors.

7. The orders given to the Appellant were based upon a standing order issued by the Chief. The standing order was the lawful administrative expression of the Board’s intentions as expressed in its policy.

8. Internal police discipline fell strictly within the

Purview of the Act and the regulations thereunder and

Labor relations rules would not apply to such matters. A clear distinction must be made between the disciplinary provisions set out under Part V of the Act and the labour relations sections set out in Part VIII.

29. Ms. Millikin relied upon and referred us to the following authorities: Police Services Act, R.S.O. 1990, c. P. 15, s. 25, 27(9), 31 (1)(c), 31(3), 31(4), 41(1)(a), 64(7), 64(10), 70, 76(1) and Part VIII, Reg. 123/98, R.R.O. 1998, s. 2(b)(ii), Constable Dennis Alexander and Metropolitan Toronto Police Service (1973), 1 O.P.R. 138 (O.P.C.), Constable Robert Brennan and Ottawa Police Service (1975), 1 O.P.R. 235 (O.P.C.), Constable Michael Thompson and Chatham Police Service (1977), 1 O.P.C. 342 (O.P.C.), Constable David Packer and Metropolitan Toronto Police Service (1990), 2 O.P.R. 858 (O.C.C.P.S.), Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2, Ceyssens, P., Legal Aspects of Policing (Earlscourt, 1998), pp. 5-2, 5-110, 5-111 and 5-113, Carpenter and Vancouver Police Board et al. (1995), 1985 CanLII 477 (BC CA), 18 D.L.R. (4th) 585 (B.C.C.A.), Constable Edward Murphy and Metropolitan Toronto Police Service (1983), 2 O.P.R. 582.2 (O.P.C.) and Constable Ralph Hopiavuori and Waterloo Regional Police Service (1992), 2 O.P.R. 582.21 (O.C.C.P.S.).

Decision:

The Appellant was the subject of disciplinary proceedings for alleged violations of section 2(1)(b)(ii) of the Code. It reads:

2(1) Any … police officer commits misconduct

if he or she is engaged in …

(b) INSUBORDINATION, in that he or she …

(ii) without lawful excuse, disobeys, omits or

neglects

to carry out any lawful order …

30. This section raises three questions. First, was there a lawful order? Second, was that order disobeyed, omitted or neglected? Finally, was there a lawful excuse for the order being disobeyed, omitted or neglected?

31. Over the course of a number of years, the Commission has heard several appeals relating to the refusal of officers to comply with policies relating to hair length, beards and mustaches. The first was Constable Dennis Alexander and Metropolitan Toronto Police Service. In that case an officer was charged with insubordination for failure to comply with a Chief’s standing order concerning sideburn length. This standing order was enacted on the basis of a by-law from the police services board authorizing the Chief to determine such matters.

32. The by-law was challenged as being an unlawful delegation. This argument was accepted and the conviction overturned because the standing order in question was not lawfully founded. However, the Commission made it clear that a board had authority in its own right to establish binding policies respecting personal appearance.

33. This finding has been restated on a number of occasions. Constable Robert Brennan and Ottawa Police Service dealt with a charge of insubordination arising from a failure to observe a board policy with respect to hair and mustache length. Page 236 of that decision read

… this Commission has ruled in a previous hearing that on a matter of policy such as this, the Chief of Police, through his Standing Orders, does not have the authority to make such regulations, but the Board of Commissioners of Police [the local police services board] does indeed have such power. The Commission is not prepared to reverse its judgement on this point as it is of the opinion that the principle of law as set out in Alexander v. Metropolitan Toronto Police Force is still valid.

34. Similar conclusions were reached in Constable Michael Thomas and Chatham Police Service and Constable Edward Murphy and Metropolitan Toronto Police Service. Both were insubordination appeals arising from a failure to follow personal appearance policies with respect to hair.

35. Indeed, this Commission considered an appeal in 1982 from another officer in Division 3 of the Waterloo Regional Police Service who refused to shave his beard. That case was Constable Ralph Hopiavuori and Waterloo Regional Police Service. Constable Hopiavuori was charged with neglect of duty and insubordination for coming to work with a beard and refusing to shave it off when so directed. Pages 582.26 and 582.27 of that decision read:

The Commissioners [Waterloo Regional Police Services Board] are satisfied that the Waterloo Regional Police Force does have the authority to prescribe reasonable standards of dress and appearance.

We agree with this and prefer that a policy of such nature i.e. whether or not beards are permitted should be dealt with by the Commission [Waterloo Regional Police Services Board] rather than the Chief, as it might by some be considered to infringe on personal rights.

However, in this case we have no evidence that the subject matter of beards was ever considered by the Commissioners and that any understanding against beards was just an “understanding” rather than a definite order.

We conclude that while there was authority to order the removal of stubble on the opinion if it being untidy, there was no lawful order to shave a beard and we therefore decide that the charge of Insubordination should also be dismissed and the conviction and sentence on the charge quashed.

We were not impressed by any argument that the Bill of Rights section of the Canadian Constitution prohibited an organization such as a police force from making reasonable rules and regulations concerning dress and appearance.

36. The situation at hand is somewhat different.

37. Section 31(1)(c) of the current Act states:

31(1) A Board is responsible for the provision of adequate and effective police services in the municipality and shall, …

(c) Establish policies for the effective management of the police force.

38. It is not in dispute that on January 17, 1994 the Board adopted by-law 94-1 with annexed regulation 4.29.12, which reads as follows:

… a male member of the service, while in uniform, will ensure that his hair, sideburns and mustache are kept neat, clean and well trimmed and particularly that beards and goatees shall not be worn.

39. Accordingly, in this case the Board has obviously considered the matter of appearance and put in place a clear written policy or by-law with respect to facial hair.

40. Further, section 41 of the Act now reads:

41(1) The duties of the Chief of Police include,

41. in the case of a municipal police force, administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the Board under subsection 31(1); …

42. The Chief issued standing order or directive 97-58 effective July 2, 1997. The pertinent portion of this directive reads:

43. Male sworn officers shall …

(e) Only wear beards or goatees when sworn officers have received written permission from the Chief of Police. An application shall be submitted to a unit commander on the prescribed form. Sworn officers shall comply with the conditions described on the form and shall meet one of the following criteria:

(i) An officer is assigned to a special plainclothes investigative unit and a beard or goatee is required by the special needs of the unit.

(ii) An officer is required to wear a beard as part of religious belief. Officers must be a practicing member of a bona fide recognized religion.

(iii) An officer has written documentation from a certified medical practitioner indicating a medical need requirement for growing a beard or goatee.

43. Clearly, in this case the Chief had a clear standing order or directive in place that reflected Board policy.

44. There is no dispute that Constable Jeary:

• came to work in uniform wearing a beard;

• was advised of the by-law and standing order with respect to facial hair and stated that he understood their content;

• did not fall under any of the exemptions provided for in the standing order;

• was ordered on two occasions to remove his beard; and

• failed to comply.

45. Accordingly, on the face of it there was a lawful order that was disobeyed. A lawful excuse is not apparent.

46. In this regard, Mr. Roland asks that we view section 31(1)(c) as a statutory expression of an employer’s right to manage. With that in mind, he suggests that we import into the disciplinary provisions of Part V of the Act case law arising from arbitrator’s interpretations of management right’s provisions in collective agreements. Specifically, he directs our attention to various arbitrator decisions that require an employer to establish reasonable justification for any unilateral rule that infringes on the rights of employees. A reasonable justification can arise from legitimate health, safety or business reasons.

47. Mr. Roland suggests that the by-law and standing order in this case were unreasonable both in terms of community standards and taking into account the manner in which other police services deal with facial hair. He suggests that the Service has not met its onus to show legitimate health, safety or business reasons for its policy. He argues that an order based upon an unreasonable policy should be deemed to be unlawful and any discipline arising from disobedience of that order should be overturned.

48. Ms. Millikin in response argues that any policy passed by a police services board within its proper jurisdiction is “lawful” and we should not consider the concept of “reasonableness” in interpreting such policy. She suggests that any order based on “lawful” policy disobeyed would constitute insubordination within the meaning of the Code.

49. To our mind the Act has clearly separated discipline from labour relations. Part V of the Act sets out the scheme for complaints and discipline. Part VIII deals with labor

relations’ issues. They are two different statutory regimes.

50. The essential character of the disagreement at hand does not arise from the interpretation, application, administration or violation of a collective agreement. It cannot be framed in terms of case law arising from the interpretation of management rights. Rather, its nature centres on discipline. Part V of the Act and the Code is a comprehensive scheme for the investigation and adjudication of such matters.

51. Certainly, there will be occasions when a board will exercise its policy-making functions under section 31(1)(c) in ways that will directly affect employees. However, in our view it is more than a statutory expression of management rights in a traditional labor relation’s sense. In any event, it cannot be taken as a statement of the Legislature’s intention to import elements of Part VIII of the Act into the completely different scheme of Part V.

52. To our mind the essential question in this case is whether or not the policy on which the order in question was based was “lawful” in the context of Part V as opposed to “reasonable” in the sense articulated by labor arbitrators.

53. We conclude that, while more restrictive than policies of most police services, by-law 94-1 was passed within the jurisdiction of the Board and thus was lawful. We further accept the argument that the Chief’s standing order was a proper administrative expression of the policy regarding beards and goatees. As a result, we are satisfied by-law 94-1 and standing order 97-58 meets the criteria established in Constable Dennis Alexander and Metropolitan Toronto Police Service which has been restated by this Commission on four other occasions.

54. We also agree with the Hearing Officer that Constable Jeary’s actions were insubordinate pursuant to 2(1)(b)(ii) of the Code in that he without lawful excuse disobeyed, omitted or neglected to carry out a lawful order.

55. This Commission recognizes that police officers are given a very special status within our society in that among other powers, they are given the authority to arrest and thereby deprive a citizen of liberty and also given the power to carry arms. Society therefore has the right to expect that police officers will follow lawfully issued orders. We would simply reiterate the statement found at page 342 of Constable Michael Thompson and Chatham Police Service:

This Commission takes a serious view of deliberate disobedience of orders, properly authorized by statute by authorities given responsibility under the statute. The Commission is of the opinion that if the decision as to whether or not a lawful order should be obeyed is a subjective one, then chaos must be the result and the complete breakdown of policing which would undermine the force to a degree to make it impotent and create anarchy. There are saving procedures to protect constables against tyrannical and illegal orders, but the method chosen by the appellant to challenge the system, assuming that he was sincere in his convictions, was completely improper.

56. Constable Jeary’s correct remedy should have been to grieve the “beard” policy rather than disobey an order and then seek redress under both Part V and Part VIII. In our opinion once the matter became framed in discipline it then fell exclusively under the comprehensive statutory scheme set out in Part V.

57. We also feel obligated to comment upon the position taken by Ms. Millikin with respect to section 25 of the Act. She suggested that section 25 is the proper means to challenge the reasonableness of policies passed by boards. Although section 25 gives far-reaching powers to this Commission it is not, in our opinion, logical to argue that this is the section under which a police officer or police association’s concerns over the reasonableness of a policy can be practically determined.

58. It should be noted that section 25 allows the Commission to conduct inquiries at the Solicitor General’s request, at a municipal council’s request, at a board’s request or on its own motion. There is nothing in section 25 allowing a police association or individual officers to compel the Commission to conduct an investigation or inquiry. Further, the only remedies under the section are to impose disciplinary sanctions against a chief or individual board members. Certainly, there is no authority to strike down a policy. Accordingly, we reject Ms. Millikin’s submissions in this regard.

59. We also feel obligated to make note of clause 2(f) of Appendix “B” to the Collective Agreement between the Board and the Association. It provides:

2(f) If dissatisfied with the decision of the Board, or if the Board fails to acknowledge or act upon the complaint or grievance the Association may:

(i) Where the difference arises from the interpretation, application or administration of the Agreement submit the matter for conciliation and/or arbitration in accordance with Part VIII of the Police Services Act, or

(ii) Where the differences arise from other causes refer the dispute, grievance or complaint to the Ontario Civilian Commission on Police Services for determination

60. There is nothing in the Act giving the Commission the authority to resolve labour disputes, complaints or grievances between a board and association. Further, parties cannot contract to confer legislative authority where none exists.

61. For the above-noted reasons we dismiss the appeal against the conviction.

DATED THE 5TH DAY OF APRIL 2000.

Murray W. Chitra G. Douglas Smith Charles B. Rycroft

Chair, OCCPS Member, OCCPS Member, OCCPS