Constable Juan Blowes-Aybar v. Toronto Police Service, 2003 CanLII 85809

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED

BETWEEN:

Constable Juan Blowes-Aybar

APPELLANT

-and-

Toronto Police Service

RESPONDENT

DECISION

Panel: Douglas Smith, Member

Peter Doucet, Member

Hearing Date: Wednesday, February 12, 2003

Hearing Location:

Appearances:

Harry Black, Q.C., Counsel for Appellant

Darragh Meagher, Counsel for Respondent

I. Introduction

1. This is an appeal from a conviction on one count of misconduct contrary to section 2(1)(b)(ii) of the Code of Conduct found at O.Reg. 123/98 (the “Code”) against Constable Juan Blowes-Aybar by Acting Superintendent R. George Cushing (the “Hearing Officer”) on September 4, 2001.

II. Background

2. Constable Juan Blowes-Aybar joined the Toronto Police Service on February 28, 1991 and at the time of the hearing in this matter was 39 years of age. He joined 14 Division September, 1993.

3. On April 7, 2000, he was served with a Court Notification and Statement Request requiring him to attend and give evidence in the matter of Porfidio Ventura-Morales at 361 University Avenue, Toronto on May 23, 2000 at 10:00 a.m.

4. Rule 4.12.1 of the Toronto Police Service provides that a member may only be excused from attending court “at the discretion of the case manager provided that: ... the member’s reason is bona fide; [and] the appropriate crown attorney is notified.”

5. On May 17, 2000, Constable Blowes-Aybar was ordered by the Chief, through Staff Inspector Grosvenor, to attend the medical bureau at 14 Division on May 23, 2000 at 9:00 a. m. He complied. He attended in the company of Detective Constable Chiasson. The doctor was late. Constable Blowes-Aybar was finally seen and free of the medical bureau at approximately 10:25 a.m.

6. In the meantime, he was also required to be at court at 10:00 a.m.; however, the matter for which his attendance was required was resolved such that his attendance was no longer required and as of 10:15 a.m. everyone was excused. This is not in dispute.

7. Constable Blowes-Aybar testified candidly that he simply forgot to attend court. This is clearly seen on pages 62, 78, and 79 of the hearing transcript. On page 62, he states that he forgot to attend court because “I was here (medical bureau) and in the whole excitement of hoping to come back”.

8. The Hearing Officer believed Constable Blowes-Aybar. He found that his excuse for not attending court, i.e. forgetting, was not a “lawful excuse” and convicted him on September 4, 2001 of the charge of misconduct pursuant to section 74(1)(a) of the Police Services Act R.S.O. 1990. c.P.15 as amended and section 2(1)(b)(ii) of the Code.

9. The offence was that contrary to section 2(1)(b)(ii) of the Code that he was “insubordinate, in that he, without lawful excuse, disobeys, omits, or neglects to carry out any lawful order”.

10. Again, these facts are not in dispute.

Appellant’s Position

10. The Appellant appeals against the finding of guilt, as well as sentence on various grounds that need not be repeated here.

Respondent’s Position

11. The Respondent argues that the findings of the Hearings Officer should stand as the conclusions were not without evidentiary foundation and did not demonstrate manifest error in principle, and that the sentence was within the acceptable range of sentence available.

III. Decision

12. In our view, the issue is whether Constable Blowes-Aybar’s forgetfulness, in these unique circumstances, constitutes “lawful excuse”. In Police Constable P.G. v. The Attorney General for Ontario, an April 18, 1996 decision of the Ontario Divisional Court, O’Driscoll J., stated at page 29:

Accepting the Board’s finding of “inadvertence”, on this record, the only logical conclusion is that the appellant made an honest mistake - he did what he undertook to do but he did it imperfectly.

Even assuming that the appellant had some kind of a duty in this case (which I have already found that he did not), without deciding the parameters of s. 1(c)(i), on this record, I am prepared to say that an honest mistake provides an answer to the charge.

13. We find this reasoning binding and persuasive.

14. Here Constable Blowes-Aybar had two clearly conflicting orders, not of his own doing. He obeyed the order to attend the medical bureau, which made it impossible for him to be in court at 10:00 a.m. His court attendance was moot as of 10:15 a.m. In his own evidence, which the Hearing Officer accepted and found to be credible, Constable Blowes-Aybar clearly stated that he forgot because he was excited to be at the medical bureau and at the prospect of returning to work.

15. In finding that the officer’s evidence was credible, and in accepting it, the Hearing Officer then went on to come to a legal conclusion of whether or not his forgetfulness in the circumstances constituted a lawful excuse, and concluded that it did not. We clearly find this to be a lawful excuse and find that the learned Hearing Officer erred in his conclusion.

16. We accordingly allow the appeal and set aside the finding of guilt. In the circumstances, it is not necessary to decide the appeal as to sentence.

DATED AT TORONTO, THIS 28^TH DAY OF FEBRUARY, 2003

Peter Doucet G. Douglas Smith,

Member, OCCPS Member, OCCPS