ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES REASONS FOR DECISION

CONSTABLE NEIL ORR

Appellant

YORK REGIONAL POLICE SERVICE

Respondent

Presiding Members:

G. Douglas Smith, Member Barbara Morland Wellard, Member

Appearances:

Leo A. Kinahan, Counsel for the Appellant Joy L. Hulton, Counsel for the Respondent

Hearing Date: Monday, December l8, 2000

Constable Neil Orr has appealed to the Ontario Civilian Commission on Police

gainst him on November 20, 1998 by Superintendent Lowell K. McLenny, a Hearing Officer appointed by the Chief of Police of the York Regional Police Service. In addition the Appellant has appealed the penalty imposed upon him of forfeiture of 24 hours.

Background:

The events giving rise to this case are not in dispute. The Appellant is a member

the Child Abuse Unit of that force. He participated in the investigation of the death of an infant who succumbed on April 17, 1997 to injuries suffered while in

called and commenced on May 1, 1998. The inquest was adjourned sine die on May 11, 1998 following allegations of an ongoing affair between the Appellant and the baby sitter.

On May 12, 1998 a reinvestigation of the death of the child was commenced by

Chief Scott of York. At the same time an investigation was commenced by

members of the Professional Standards Branch of York into the conduct of the Appellant.

Constable Orr retained Mr. Leo A. Kinahan as his lawyer on May 13,1998. Mr. Kinahan wrote to Detective Sergeant William Seed of the Professional Standards Branch of York advising him that any further contact with the Appellant was to be through his office.

On May 26, 1998, Detective Ralph Rouw of Peel contacted the Appellant by telephone and requested a formal statement from him regarding the death of the child. Detective Rouw was informed by Constable Orr that he would be speaking with his lawyer and a reply would be forthcoming.

On June 2, 1998 Mr. Leo A. Kinahan wrote a letter to Detective Rouw which read as follows:

I have considered your request of last week to Cst. Orr to provide a statement pertaining to his involvement of the investigation into the death of Z.¹

A review of the transcript and the cross examination of my client, coupled with the ongoing investigation against him lead me to believe that he may face potential criminal prosecution and as such, I regret to inform you that, on the advice of Counsel and until such time as I am advised in writing, by a member of the Attorney

y the York Regional Police, Professional Standards Bureau that no charges of any sort, are being leveled as against my client, he will not be in a position to make a statement.

Should the above-mentioned assurances be received, I will be happy to reconsider my position. In the interim, I would request that all future communications with Cst. Orr be made through this office.

On June 5, 1998, Detective Rouw met with Mr. Kinahan, at which time he confirmed that there was an investigation being conducted by the members of the Professional Standards Bureau of York into the conduct of the Appellant with regards to the investigation of the death of the child. He advised, however that he could not make any comments as to whether or not the investigation was criminal in nature.

In addition, Detective Rouw advised Mr. Kinahan that he was not in a position to make any assurances insofar as derivative use of immunity or other concerns, regarding any statements that the Appellant may provide. Counsel for the Appellant also was advised that should the Appellant not comply with the request

¹ The name of the deceased child has been modified throughout this decision.

to provide a statement then a request would be made that a senior officer of the York Regional Police Service order him to make a statement.

On June 8, 1998 a second letter was sent by Mr. Kinahan to Detective Rouw once again advising that the Appellant would not provide a statement. The pertinent portion of this letter reads as follows:

Upon further review of the transcripts of the inquest which has been adjourned sine die, I must maintain my original position that, on the advice of Counsel, Cst. Orr is not in a position to provide assistance at this time. As you indicated, while you are not conducting the investigation into my client, the two investigations are intertwined and you are not in a position to make any

Charter

On June 11, 1998 the Appellant received inter-office correspondence from Inspector Donald Kirk of the Professional Standards Bureau. This correspondence read:

As you are aware, the investigation into the death of Z is ongoing by the Peel Regional Police. They are of the opinion as I am, that you have information that will assist them in their investigation.

I am aware of certain concerns you may have, however as a police officer, you have a duty and an obligation to assist them in their investigation.

I have asked them for, and they have supplied, a list of eight questions relating to information only. You are hereby ordered to respond to the attached questions in writing, to me, within seven days of receipt of this memo.

Attached to the inter-office correspondence was a list of 8 questions. These questions were:

1. What has lead you to believe that the information provided by T ² is in fact the actual way in which the child, Z, died?

2. Was there any information available with respect to the mobility of this child?

3. Why was the child placed alone in the upstairs bedroom, with the door closed? Is there any reason to dispute the reason given?

4. What access did other children have to the room in which Z was apparently sleeping?

² The name of the babysitter has been modified throughout this decision.

5. Was there any confirmation on the whereabouts of B or A ³ at the time of the incident?

6. Was there a neighborhood canvass conducted to determine any unusual incidents within the T home prior to the incident?

7. What information was relayed to those in attendance at a meeting held on 04 April 97, CAS, D/S Mullholland, D/S Sine, Det. Heaver, Cst. Heaver and yourself?

8. What medication and/or medical treatment was T under at the time of this incident?

Mr. Kinahan wrote letters on June 14, and June 19 1998 to Inspector Kirk seeking clarification whether the Appellant had been cleared of any criminal wrongdoing in relation to the investigation of the death of the child. No reply was received by Mr. Kinahan.

The Allegations:

On June 23, 1998, the Appellant was formally charged with insubordination Ontario Regulation 123/98. The pertinent portion of the Code is as follows:

2

engages in,

(ii) without lawful excuse, disobeys, omits or neglects to carry out any lawful order;

The wording of the charge read:

Constable Neil Orr, number, 571, you are alleged to have committed misconduct as you did without lawful excuse disobey, permitted or neglected to carry out a lawful order contrary to section 2(1)(b)(ii) of the Code of Conduct of Ontario regulation 123(98) and amendments thereto.

The statement of particulars with regards to the charge read:

On June 11, 1998, Constable Orr met with Inspector Donald Kirk and at that time the Inspector ordered him to assist with an investigation in the death of Z by answering printed questions supplied by the investigators. Constable Orr was reminded in writing of his duty as a Police Office and was ordered to reply to the questions in writing with seven days. He failed to answer the questions as ordered.

³ These names have been modified through this decision.

The Hearing:

On October 11^th, 1998 a disciplinary hearing commenced before Superintendent

l5th, 1998. Constable Orr was represented by Counsel. Many witnesses were heard during the hearing and a large number of exhibits were introduced. On October 23, 1998 submissions were made on behalf of Constable Orr and the Service.

Judgment was given by the Hearing Officer on November 20^th, 1998 at which time Constable Orr was found guilty of the charge of insubordination.

Submissions on penalty were made on behalf of Constable Orr and the Service. A penalty of forfeiture of 24 hours was imposed.

The Appeal:

Constable Orr has appealed both the finding of guilt and the resulting penalty. On Wednesday May 31, 2000 we heard arguments on a motion brought by the

Appellant to allow the introduction of fresh evidence. This evidence was received by the Commission for the reasons set out in our decision of July 28, 2000.

Mr. Kinahan raised a number of issues in this appeal.

First, it was argued that the Hearing Officer failed to consider and apply the proper principles of law pertaining to the evidence. It was suggested that the Hearing Officer in his reasons gave only a cursory and incomplete review of the evidence adduced at the hearing, to the point that in reading same, one would be left with the conclusion that no defence had been put forward.

Mr. Kinahan strongly argued that a main defence raised at the hearing was

 silent and be protected from self-crimination pursuant to the provisions of the Canadian Charter of Rights and Freedoms (the

referred to the Charter arguments, and as such it is suggested that he did not

It was further submitted that for a finding of guilt to be made on a clear and convincing basis that evidence must be presented that offered proof of reasonable certainty of the truth of the ultimate fact in controversy. Mr. Kinahan argued that not only was there insufficient evidence to reach a finding based on a clear and convincing basis, but that the evidence introduced by the Respondent at trial was filled with numerous inconsistencies.

It was suggested that a Hearing Officer must demonstrate that he has considered all evidence in order to reach a just conclusion. It was argued that it is insufficient for the Hearing Officer simply to state that he has been convinced on clear and

convincing evidence without explanation as to how he reached this conclusion. In support of his arguments Mr. Kinahan referred us to numerous excerpts in the transcript of the evidence and Stitt and York Regional Police Service (1997), 3

O.P.R. 1130 (OCCPS).

As a second general ground of appeal, Mr. Kinahan argued that the Hearing Officer committed a substantial misapprehension of the evidence by failing to even consider the manner in which the testimony was presented and the numerous inconsistencies contained therein and by further failing to consider whether the evidence, as presented, provided a lawful excuse to the Appellant not to respond to the order.

In support of his position, Mr. Kinahan referred us to portions of the transcript and, in particular, to the testimony of Detective Rouw and Inspector Kirk. Mr. Kinahan also drew our attention to McGuire v. Royal College of Dental Surgeons of Ontario (1991), 1991 CanLII 8372 (ON CTGDDC), 77 D.L.R. (4^th) 732 (Ont. Div. Crt.), Gulf Sea Products Ltd. v.

National Sea Products Ltd. (1985), 1985 CanLII 5162 (PE SCAD), 56 Nfld. & P.E.I.R. 343 (P.E.I.C.A.), Bluenose

Fisheries Ltd. v. Tabusintac Fish Market Ltd. (1987), 77 B.R. (2d) 285 (N.B.C.A.),

P.G. v. Ontario (Attorney General) [1996] O.J. No. 1298 (Ont. Div. Crt.), R. v. Harper 1982 CanLII 11 (SCC), [1982] 1 S.C.R. 2 (S.C.C), R. v. Vanloon [1997] O.J. No. 3209 (Ont. Div.

Crt.), R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193; R. v. Burns 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656

(S.C.C.), R. v. R.(D) (1996), 1996 CanLII 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) and R. v. Feeney

(S.C.C. released May 22^nd, 1997).

Third, it was argued that the Hearing Officer had in essence stated that there were no legitimate reasons for the Appellant not cooperating with the investigation. By doing so it was suggested that the Hearing Officer had shifted the burden of proof from proving the offence from the Respondent to the Appellant. As a result, it was argued that the Hearing Officer has effectively turned the offence into one of a strict liability. In support of these arguments Mr. Kinahan referred us to both the case of R. v. Lizzi 1996 CanLII 21269 (ON CTGD), [1996] O. J. No. 3235 (Ont. Div. Crt.).

Mr. Kinahan made further arguments that the Hearing Officer placed undue emphasis on the opinions expressed by Inspector Kirk. The opinion of Inspector Kirk concerning the nature of the questions asked of Constable Orr, it is argued, was totally irrelevant and also incorrect at law with respect to the overall charge, and should not have been considered by the Hearing Officer. Mr. Kinahan

arguments in this regard.

It was further suggested by Mr. Kinahan that the Hearing Officer considered evidence that was not before him and was extraneous to the proceedings. We were referred to the transcripts of the reasons wherein it was argued that the Hearing Officer has considered the death of the child and the impact that the death had on the family and community at large. It was argued that this had nothing to do with the charge of insubordination faced by the Appellant, and

therefore was extraneous and irrelevant and should not have been considered by the Hearing Officer.

Finally it was argued on behalf of the Appellant that the Hearing Officer totally ignored the evidence before him and the arguments arising therefrom as to the issue of a potential ongoing criminal investigation with regards to Constable Neil Orr. As a result it was suggested that the Hearing Officer totally neglected in his reasons for judgment the arguments raised by the Appellant of the potential of an ongoing criminal investigation against Constable Orr.

In this regard, it was suggested that there was clear evidence that Constable Orr was the subject of an investigation for allegations of criminal wrongdoing. As such it was argued that the Appellant had the right pursuant to the Charter to remain silent and refuse to answer the questions posed to him. Mr. Kinahan submitted that the rights granted by the Charter to remain silent arose at the investigative stage and not only after a charge has been laid against the accused. Furthermore it was argued that the rights granted by the Charter took precedence over any obligations imposed upon the Appellant as a police officer pursuant to the provisions of the Police Services Act R.S.O. 1990, C. P.15 as

the order and refuse to answer the questions posed to him.

o the Charter were extensive. We were referred not only to the transcript of the hearing, the fresh evidence admitted by this Commission in its decision of July 28, 2000, but also to a number of cases. These included: Re Nelles et al. and Grange et al. (1984), 1984 CanLII 1861 (ON CA), 9 D.L.R. (4^th) 79 (Ont. C.A.), Quebec (Attorney General) v. Canada

(Attorney General) 1978 CanLII 23 (SCC), [1979] 1 S.C.R. 218 (S.C.C.), Thompson Newspapers Limited

et al. v. Director of Investigation et al. (1986), 1986 CanLII 112 (ON CA), 30 C.C.C. (3^rd) 145 (Ont. C.A.),

The Queen et al. (1987), 1987 CanLII 45 (SCC), 45 D.L.R. (4^th) 527 (S.C.C.),

Regina v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.), R. v. Jones (1994), 114

D.L.R. (4^th) 645 (S.C.C.), Fitzpatrick v. The Queen (1995), 1995 CanLII 44 (SCC), 102 C.C.C. (3d) 144

(S.C.C.), R. v. Calder (1994), 1994 CanLII 8729 (ON CA), 19 O.R. (3d) 643 (Ont. C.A.) and Ontario (Police Complaints Commissioner) v. Kerr (1997), 1997 CanLII 1106 (ON CA), 143 D.L.R. (4^th) 471 (Ont. C.A.). We were also referred by Mr. Kinahan to excerpts from Policing in Canada, Issues for the 21^st Century by Rene J. Marin (Canada Law Book Inc., 1977).

Ms. Joy Hulton represented the Respondent and urged the Commission to uphold both the decision of the Hearing Officer and the penalty imposed.

evi

Officer acknowledged the abundance of evidence before him and focused his decision on the questions that he had to answer (i.e. was there clear and convincing evidence that Constable Orr disobeyed a lawful order and if he did, did he have a lawful excuse to do so). Ms. Hulton urged that the reasons of a

Hearing Officer who is not legally trained should not be subject to painstaking scrutiny. Furthermore, it was argued even if this Commission finds that the

decision on the basis of the evidence on the record.

In support of her submissions Ms. Hulton referred us not only to the decision of the Hearing Officer but also to the following cases: Trotter v. College of Nurses of Ontario (1991) 44 O.A.C. 302 (Ont. Div. Crt.), Re Del Core and Ontario

College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 19 D.L.R. 68 (Ont. C.A.), Re Barath and Bacsek

(1975), 1975 CanLII 586 (ON HCJ), 66 D.L.R. (3d) 595 (Ont. Div. Crt.), Re College of Nurses of Ontario and Quioque (1993), 1993 CanLII 8683 (ON CTGD), 13 O.R. (3d) 325 (Ont. Div. Crt.), Parent and Hawkesbury Police Service (unreported, May 22, 1998, OCCPS), Bettes and Peel Regional Police Service (1996), 3 O.P.R. 1170 (OCCPS), Stitt and York Regional Police, supra,

and Deviney and Toronto Police Service (unreported, February 10, 1999, OCCPS).

The Respondent urged this Commission not to second-guess the Hearing Officer. Ms. Hulton argued that the Commission should only consider whether the H be overturned if there is a manifest error in the assessment of evidence or the transcript reveals extraordinary reasons to do so. It was argued in this case that neither of these prerequisites exists. Consequently, we were urged to give no

misapprehended the evidence before him.

in this regard: Bettes and Peel Regional Police Service, supra, Harwood and

O.P.P. (1996), 3 O.P.R. 1086 (OCCPS), Ciotka and O.P.P. (1994), 2 O.P.R. 987

(OCCPS), Nothing and O.P.P. (1996), 3 O.P.R. 1081 (OCCPS) and Crozier and

O.P.P. (1993), 2 O.P.R. 948 (OCCPS).

Ms. Hulton further disagreed with the position taken by the Appellant that the Hearing Officer had reversed the burden of proof and in essence made the offence one of absolute liability. She referred us to the transcript of the reasons for the decision of the Hearing Officer, in which he concluded that Constable Orr did not establish legitimate reasons for failing to co-operate with the investigation by answering the questions.

Ms. Hulton further argued that there is nothing in the reasons of the decision of the Hearing Officer to indicate that he placed excessive weight on the position taken by Inspector Kirk in his testimony that the questions posed to Constable Orr were non-accusatory. Consequently, she suggested it was irrelevant whether or n

Ms. Hulton further argued on behalf of the Respondent that the Hearing Officer made no reference in his reasons for decision to evidence extraneous to the proceedings. It was suggested that a Hearing Officer is permitted to apply his specialized knowledge and experience in police services in rendering his

decision. We were referred to the case of Morden and Peel Regional Police (1997), 2 O.P.R. 1140 (OCCPS).

Finally it was argued on behalf of the Respondent that the right to remain silent, arising from section 7 of the Charter is not absolute but requires a careful balance between the interests of the state and those of an individual. It was suggested that section 7 does not impose a broad right against self-incrimination on an abstract level and to suggest otherwise would represent a dangerous and

legitimate interests in discovering the truth.

Ms. Hulton took the position on behalf of the Respondent that Section 7 of the Charter is not violated every time that the state seeks to rely on compelled information and such compelling of testimony is not contrary to the principles of fundamental justice. It was argued that there is no breach of section 7 of the Charter until such time as the compelled evidence is admitted at a criminal proceeding. Ms. Hulton further argued the use of the compelled evidence in a subsequent criminal proceeding is protected by section 13 of the Charter, wherein a trial judge in a criminal proceeding can exclude any derivative evidence where appropriate.

It was further argued that the right to remain silent arising from section 7 of the Charter does not apply to police discipline proceedings because there are no penal consequences. It was suggested that police officers have the duty to obey orders notwithstanding the fact that they may be the subject of an investigation with potential criminal consequences. Ms. Hulton argued that the courts have established steps which should be taken to protect the rights of officers who are accused of criminal offences but have an obligation to obey orders pursuant to the Act. A police officer can be compelled to provide information to investigators and such information is admissible if he is given an appropriate and clear caution or by providing the officer with access to legal counsel before the questioning commences.

Finally it was argued by Ms. Hulton that the order issued by Inspector Kirk was lawful and arose from the application of the general duties of a police officer as prescribed by section 42 of the Act. As such, Constable Orr had the obligation to obey or face a disciplinary sanction for failing to do so. The fact that Constable Orr was acting on the advice of his counsel in disobeying the order, it was argued, does not excuse him from the consequences of his conduct.

In this respect, Ms. Hulton referred us to a number of cases: R. v Herbert (1990), 1990 CanLII 118 (SCC), 57 C.C. C. (3d) 1 (S.C.C.), R. v. S (R.J.) (1993), 1993 CanLII 3432 (ON CA), 12 O.R. (3d) 774 (Ont. C.A.), R.

v. Fitzpatrick (1995), 1995 CanLII 44 (SCC), 102 C.C.C. (3d) 144 (S.C.C.), Thompson Newspapers Ltd.

v. Canada (Director of Investigation & Research) [1990] S.C.R. 425 (S.C.C.), Meade et al v. The Queen (1991) 1991 CanLII 13561 (FC), 81 D.L.R. (4^th) 757 (Fed. Crt.-Trl. Div.), Trimm

v. Durham Regional Police Service (1987), 1987 CanLII 44 (SCC), 45 D.L.R. (4^th) 276 (S.C.C.), Colledge

v. Niagara Regional Police Service (1983), D.L.R. (3d) 655 (Ont. Div. Crt.), R. v. Calder, supra, Packer and Toronto Police Service (1990), 2 O. P.R. 858

(OCCPS) and Cristiano and Toronto Police Service (1997), 3 O.P.R. 1126 (OCCPS).

Decision:

The fundamental questions to be answered by the Hearing Officer can be described as follows:

1. Did Constable Orr receive an order?

2. If so, was that order lawful?

3. Did Constable Orr disobey, neglect, or omit to carry out that order?

4. If so, did Constable Orr have a lawful excuse for doing so?

These are the essential elements of a charge of insubordination.

There is no dispute that the Appellant was issued a written order by Inspector Kirk on June 11^th, 1998 to answer various questions. Further, it is also clear that Constable Orr on the advice of his lawyer did not comply within seven days as requested.

It is beyond our comprehension how it can be argued that the Hearing Officer did not apply the test of clear and convincing evidence as required by the Act with respect to these issues. Further, it is obvious from his reasons that the Hearing Officer understood that a key aspect of his role was to determine whether an order was issued to Constable Orr and whether he obeyed that order.

This leads to the question of whether or not the order issued to the Appellant was lawful. Section 42 of the Act sets out the statutory duties of a police officer. It provides:

42(1) The duties of a police officer include,

(a) preserving the peace

In Packer and Toronto Police Service it was established that obeying orders is a particular application of the general duty to preserve the peace. Page 863 of that decision read:

It is common ground that the order impugned in this matter was a

it was but a particular application of the general duty at law to preserve the peace effected by the deployment of one particular officer amongst those subject to that duty. The propriety of issuing orders down through a chain of command and the requirements

responsibilities of constables per se. The authority to the order, the obligation to obey it, and the disciplinary sanction for failure to do so all arise at law.

Clearly, a police officer cannot be directed by a superior to commit to take an action that would violate the law.

ut a superior officer directing a constable to report on the steps that he or she may have taken during working hours in the performance of his or her assigned official duties. This certainly would appear to be the case here and accordingly, we are satisfied that the order issued by Inspector Kirk was lawful.

This Commission has ruled in previous decisions that the decision of the Hearing Officer must not be void of evidentiary foundations. This test has been cited in many of our decisions and was articulated by the Commission in Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS) at page 1047 in which we stated:

Our role or function in such matters is not to second-guess the decision of the Adjudicator. In certain limited cases, it would be open to us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the Adjudicator, as to the credibility of witnesses, cannot be reasonably accepted.

The question to be asked in this case is, are the conclusions of the Adjudicator void of evidentiary foundation.

inconsistencies in the testimony of the R we are satisfied that these inconsistencies do not go to the fundamental question

solely on the exhibits presented and his assessment of the credibility of the witnesses.

We also do not agree with the submissions filed on behalf of the Applicant that

decision in its entirety we are satisfied that he concluded on the evidence before him that a lawful order had been issued to Constable Orr. Once the Hearing Officer has been satisfied that a proper order has been issued then the Appellant must demonstrate a lawful excuse for why the order has not been obeyed.

However, this in no way shifts the burden from the Respondent to prove on clear and convincing evidence the essential elements of the offence.

the questions attached to the order are not accusatory did not play any significant role in the decision of the Hearing Officer.

We do not accept that there is any merit to the arguments placed before us on behalf of the Appellant that the Hearing Officer considered evidence not before

him and extraneous to the proceedings. Although the legal arguments may have been complex, the underlying issues to be decided by the Hearing Officer are clear and we are satisfied that the Hearing Officer considered only the evidence before him in reaching a decision on these issues. Furthermore this Commission has consistently ruled in previous decisions that it is not improper for a Hearing Officer to apply his specialized knowledge and experience as a police officer in assisting him in interpreting the evidence before him.

Consequently, we are satisfied that the Hearing Officer applied the correct standard of proof, provided sufficient reasons for his decision, and did not misapprehend the evidence before him on the matters identified above.

Accordingly, the first three parts of the test with respect to insubordination have been met.

That leaves the final issue of whether or not the Appellant had a lawful excuse for disobeying or neglecting the order of Inspector Kirk. We are in agreement with the Appellant that this is an issue that the Hearing Officer did not specifically address in his decision. Clearly, lengthy arguments were made on behalf of Constable Orr that the Charter provided him a lawful excuse for neglecting or disobeying the orde judgment that indicates that he even considered the Charter arguments, let alone why he may have rejected them.

This is indeed unfortunate and is a clear and obvious deficiency. In Stitt and York Regional Police Service the Commission stated at page 1134:

In a situation such as this, one course of action would be to order a new disciplinary hearing. Certainly, if the matter hinged solely upon the credibility of witnesses, that would be our only option. If, however, the matter can be determined on the basis of evidence already on record, then this tribunal should do so and thus avoid further expenditures of time and money on the part of the individuals concerned and the public. Therefore we turn our attention to the evidence contained in the transcript of the disciplinary hearing.

We are satisfied that there is sufficient evidence on the record, to permit this Commission to render a decision on this final issue.

Sections 7 and13 of the Charter provides as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate the witness in any other proceedings, except in the

prosecution for perjury or for the giving of contradictory evidence.

The Appellant argued that the testimony of both Inspector Kirk and Detective Rouw coupled with the fresh evidence admitted by this Commission only permitted one conclusion i.e. not only was there an investigation into the death of the child, but also an ongoing criminal investigation into the conduct of Constable Orr.

I

nature. However, given that inquiries were not complete, the relevant investigators were not prepared to provide written assurances concerning any possible outcome. This fact, coupled with the Peel investigation and the great

generated reservations in the mind of the Appellant concerning the purpose of the questions being asked.

It is evident however, that the questions posed to Constable Orr originated from the Peel officers assigned to reinvestigate the death of the infant. The express

that will assist them in thei

on such issues as: Why was the child alone upstairs with the door closed? Was a neighborhood canvass conducted? Was T receiving medical treatment?

Where were the other children located when this incident occurred? Did anyone else have access to the room? These queries are not directed at Constable

Even assuming that at some point in time the parallel York disciplinary inquiries took on a criminal aspect we do not see how the App

matter would have been prejudiced by responding to the Peel questions.

In Regina v. Calder an officer was charged pursuant to the Criminal Code for purchasing sexual services of a person under 18, extortion and breach of trust. During the course of questioning the officer was advised of the potential of criminal charges and given the standard caution. However, he was not read his rights under subsection 10(b) of the Charter. In the subsequent criminal trial it was ruled that the statements given to the police were inadmissible because he had been denied his right to counsel and the caution given was not adequately explained.

be made clear to him particularly given his obligations under the Act. The appeal by the Crown to the Court of Appeal was denied. The Court of Appeal held that

have been admissible if:

(a) he had been given an appropriate and clear caution; and

(b) been provided with access to legal counsel before questioning commenced.

In this case at hand, the request to respond to the eight questions was made directly to Constable Orr by Inspector Kirk. It contained no caution or reference to access to legal counsel. The expressed purpose of the request was to assist the Peel officers with their investigation into the death of a child. Accordingly, in our view any response that might have been provided could not be have been admitted in any subsequent criminal proceedings.

Section 13 of the Charter does not give a party the right to refuse to answer a question on the grounds that the answer might incriminate them. Rather, section

not to have any incriminating evidence so given

As Professor Peter W. Hogg states in his book Constitutional Law of Canada Third Edition Published by Carswell at page 1139-1140:

Section l3 does not give to the witness the right to refuse to answer a question on the ground that the answer might incriminate him.

That right which existed at common law, was abolished in Canada in 1893 by what is now s. 5(1) of the Canada Evidence Act. (The right has also been abolished by each provincial Evidence Act).

The right has not been restored by the Charter of Rights or by the Canadian Bill of Rights. The right not to answer on the ground of self-incrimination still exists in the common law of the United Kingdom and in the constitutional law of the United States under the fifth amendment (applicable to Congress) and the fourteenth amendment (applicable to the states). In Canada, however a witness may not refuse answer a question on the ground that the answer might incriminate him. What s. 13 of the Charter does is give to the witness the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in the prosecution for perjury or for the giving of contradictory evidence.

Neither sections 7 or 13 permit a police officer to disobey an order to provide statements to a superior officer. As stated by Justice LaForest in the Thompson Newspaper decision on pages 57 and 58:

I agree with Sopinka J. that a

extend beyond the actual trial itself, but I do not think it must be extended to those who are ordered to testify in a proceeding such as that provided by s. 17 of the Combines Investigation Act. Such an extension would seriously complicate the already difficult task of investigating the type of conduct with which the Act is concerned. In

cases where information of value to an investigation can most easily be obtained by asking questions of those responsible for the decisions and actions of particular business organizations, an absolute right to refuse to answer questions would represent a dangerous and unnecessary imbalance between the rights of the

trut

designed to protect the public.

It is critical that police officers follow legal orders issued to them considering the special status that they have in society.

n following the rational of the Nelles decision that although the police have the right to question a suspect they have no power to compel an answer. However, members of the public are not subject to the provisions of the Act. That being said it is clear to us that any duty statement compelled from a police officer cannot be subsequently used against him or her in any criminal proceeding, unless the officer has been afforded the protections guaranteed under the Charter.

It is critical for the operation of a police service that a police officer obeys orders and account for his or her actions in the course of performing their official duties. For this reason the Commission would view the failure to obey an order without a lawful excuse as a serious offence.

We were not provided with compelling arguments as to why this penalty should be reviewed. Furthermore we do not view the penalty of 24 hours of forfeiture of time as harsh and excessive in the circumstances and do therefore uphold this penalty.

For these reasons the appeal against both conviction and penalty is hereby dismissed.

DATED THIS 26TH DAY OF MARCH 2001

G. Douglas Smith Barbara Morland Wellard

Member, OCCPS Member, OCCPS