ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Fred Parker
APPELLANT
-and-
Sergeant Randy Blakely (Quinte West Police Service)
RESPONDENT
DECISION
Panel: Krishan D. Uppal, Member Peter J. Doucet, Member
Hearing Date: Monday, August 30, 2004
Hearing Location:
Appearances:
Harry G. Black, Q.C., Counsel for Sergeant Randy Blakely
George Bonn, Counsel for Fred Parker
I. Introduction
There are two appeals before us in this matter.
Sergeant Randy Blakely of the then Quinte West Police Service (the “Service”) was charged that he committed the offence of neglect of duty on December 20 and 21, 1998 by permitting Mr. Fred Parker to be detained for a period of some 27 hours and 45 minutes without giving him his right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”). The full text and particulars of the charge are found at Tab 4 of the Appeal Book of Sergeant Blakely.
Sergeant Blakely was found guilty of neglect of duty by Superintendent Maycock (the “Hearing Officer”) on July 3, 2003 for failing to provide Mr. Parker with his right to counsel for a period of approximately 90 minutes. A penalty of reprimand was imposed on August 27, 2003.
Mr. Fred Parker has appealed the finding of misconduct as well as the penalty imposed against Sergeant Blakely.
Sergeant Blakely has appealed the finding of misconduct.
II. Background
On Sunday, December 20, 1998 at 2:45 p.m. Mr. Fred Parker was arrested in the company of James Zebedee, an individual known to the Service for his long criminal record with violence. Mr. Parker was held incommunicado for 27 hours and 45 minutes under the direction of Sergeant Blakely. He was not permitted to call counsel.
Sergeant Blakely’s reason for this action was to protect the safety of the officers who would be conducting a raid on the Zebedee property later the same day. It is a well-known fact that the family, referred to in subsequent criminal proceedings as the Zebedee Crime Family, was known to the police as dangerous criminals who were not afraid to confront, interfere with, and shoot at police. The police and particularly Sergeant Blakely had great concern about officer safety and preservation of evidence at the time of Mr. Parker’s arrest.
However, as time passed, members of the public knew of the police raid. Non-police personnel including two sisters of the Zebedee family attended at the residence and were aware of the raid and saw the police. A press release was issued on the morning of December 21, 1998. As time passed and the scene became more secure, fewer and fewer officers remained at the scene.
By 3:15 p.m. on December 21, 1998 Sergeant Blakely’s concerns about officer safety and the potential destruction of evidence had ceased. Mr. Parker was permitted to call his lawyer at 5:05 p.m.
Appellant’s Positions
Mr. Parker in essence is appealing that portion of the decision of Superintendent Maycock dealing with the number of hours during which the section 10(b) Charter rights of Mr. Parker were infringed. He feels that her finding that the denial of right to counsel began only at 3:15 p.m. on December 21, 1998 is in error, and he wishes us to find that the denial of his right to counsel began earlier.
Mr. Parker also appeals the penalty of reprimand. He argues that a reduction in rank for a period of one year would be more appropriate given the seriousness of the infringement of his right to counsel, and urges us that the principle of general deterrence requires a more significant penalty.
Sergeant Blakely challenges his conviction. As well, he argues that Mr. Parker is attempting to appeal the reasons, as opposed to the decision, of Superintendent Maycock and argues that is outside the purview of his right of appeal under section 70 of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”).
III. Decision
These appeals arise out of the arrest of Mr. Parker for possession of a stolen vehicle and theft on December 20, 1998. At the time of his arrest he was in the company of one James Zebedee. Mr. Zebedee is a member of what was referred to in criminal proceedings as the Zebedee Crime Family. They were considered to be most dangerous, notorious, and violent. They had terrorized the local community without remorse. All citizens, including members of the Service, lived under their and their associates fear. See R. v. Zebedee [2001], O.J. No. 4514 (Ont. Sup. Ct.).
The notoriety and vicious reputation of this family affected the behaviour of Sergeant Blakely. He believed that his personal safety and the safety of his fellow officers would be at stake if he allowed Mr. Parker to exercise his rights under section 10(b) of the Charter.
As a result of the arrest, a separate raid on the Zebedee farm was undertaken. Sergeant Blakely made the decision that Mr. Parker and Mr. Zebedee would be held incommunicado and without their section 10(b) rights primarily in order to ensure the safety of the officers involved in the raid. Sergeant Blakely made it clear to all that no one was to interview Mr. Parker or attempt to elicit any statement or evidence from him. Sergeant Blakely did, however, on more than one occasion, remove Mr. Parker from the cells and speak to him. No statement, however, was taken.
The issue before the Hearing Officer, in essence, was the legitimacy of this rationale as the raid progressed and the threat of harm by the Zebedee family diminished, as balanced against the section 10(b) rights of Mr. Parker.
The evidence was extensive and the hearing lasted over many days. Superintendent Maycock was faced with a daunting task and the analysis of a great deal of legal authority.
At the time of the charge against him, Sergeant Blakely was a 23-year veteran of Quinte West with an exemplary service record. His record and reputation at that time were above reproach.
No one has suggested that Sergeant Blakely acted with malice against Mr. Parker. No one has called into question the courage or the reputation of Sergeant Blakely.
The difficult question before Superintendent Maycock, which now comes to us, is the balancing of the very real safety concerns which began the withholding of the section 10(b) rights of Mr. Parker, against the right of all persons arrested or detained by police to retain and instruct counsel without delay.
The right to counsel has more than one purpose. While one of its purposes is to ensure that a person arrested or detained understands his legal rights, another very important purpose is to prevent citizens being taken away by the police surreptitiously. By guaranteeing a person arrested or detained the right to consult counsel, section 10(b) ensures that no one can simply ‘disappear’ when taken into custody by the State. Even though Mr. Parker was not required to answer questions, no one outside of the police knew of his whereabouts for 27 hours and 45 minutes. This is a great concern.
The law is clear that a police officer may temporarily suspend the section 10(b) rights of a person arrested or detained for limited legitimate purposes. These purposes must be very limited, as the wording of section 10(b) includes the words “without delay”. Clearly any interruption of these rights is to be as brief and least intrusive as possible.
Mr. Parker was held incommunicado in the police cells for 27 hours and 45 minutes on the instructions of Sergeant Blakely because of officer safety grounds. This action of Sergeant Blakely violated section 10 of the Charter, which reads:
Every one has the right on arrest or detention
(b) to retain and instruct counsel without delay and be informed of that right.
The right to retain and instruct counsel without delay is available on arrest or detention.
In this case Mr. Parker was denied this right because Sergeant Blakely stated that he believed that allowing Parker to call his lawyer would jeopardize the safety of the officers who were searching the Zebedee farm. It is understandable that the police knew the extensive criminal record with violence of Mr. Zebedee and Sergeant Blakely was concerned that Mr. Parker could inform his (Zebedee) associates of the impending raid on his farm. The farm was raided on Sunday, December 20, 1998 at 11.30 p.m. and by 12.50 a.m. on Monday, December 21, 1998 it was secured.
Once the farm was under police control, there was no reason for not allowing Mr. Parker his constitutional right to communicate with his lawyer. Sergeant Blakely felt that he had the right to delay the section 10(b) rights of Mr. Parker. It appears that Sergeant Blakely read a qualification or limit into section 10(b), which is simply not there. That was to read the phrase “without delay” as “without unreasonable delay”.
Section 1 of the Charter is the sole source of reasonable limits and these must be “prescribed by law”, not imposed by the police in their discretion: R. v. Therens 1985 CanLII 29 (SCC), [1985], 1 S.C.R. 613 (S.C.C.) at p. 621.
The danger in reading internal limits or qualifications into the plain language and clear purpose of section 10(b) can be readily seen in this case. The purpose of the right to counsel guaranteed by section 10(b) of the Charter is to provide detainees with the opportunity to be informed of their rights and obligations under the law and, most importantly, to seek advice for exercising those rights and fulfilling those obligations. See R v.Manninen 1987 CanLII 67 (SCC), [1987], 1 S.C.R 1233 (S.C.C.) at pp. 1242 to 1243.
This opportunity is made available because, when a person is detained by the State, then he/she is put in a position of disadvantage relative to the State. Not only does this person suffer deprivation of liberty, but also may be at risk of incriminating himself/herself. Therefore, a person who is detained within the meaning of section 10 of the Charter is in immediate need of legal advice to protect against self-incrimination and assistance in obtaining his/her liberty. See R. v. Hebert 1990 CanLII 118 (SCC), [1990], 2 S.C.R. 151 (S.C.C.) at pp. 176 to 177, R v. Prosper 1994 CanLII 65 (SCC), [1994], 3 S.C.R. 236 (S.C.C.) and R v. Brydges 1990 CanLII 123 (SCC), [1990], 1 S.C.R. 190 (S.C.C.) at p. 206.
In R. v. Strachan 1988 CanLII 25 (SCC), [1988], 2 S.C.R. 980 at pp. 1009 to 1013 the opinion of former Justice Wilson of Supreme Court of Canada on section 10(b) is quite clear. In obiter dicta, Justice Wilson emphatically said that a police officer does not have any discretion to delay an arrested person’s right to call a lawyer. The only source of discretion is section 1 of the Charter … “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
There is no doubt that Mr. Parker’s right under section 10(b) of the Charter had been seriously violated when he was repeatedly denied his right to call his lawyer. Committee for the Commonwealth of Canada v Canada 1991 CanLII 119 (SCC), [1991], 1 S.C.R. 139 (S.C.C.) at para 169.
A party who seeks to justify the limiting of a constitutional right under section 1 has the onus of proving on a balance of probabilities that the limit is demonstrably justified in a free and democratic society. R. v. Edward Books and Art Ltd. 1986 CanLII 12 (SCC), [1986], 2 S.C.R. 713 (S.C.C.)
33. As Chief Justice Dickson noted for the minority in [R. v. Dedman 1985 CanLII 41 (SCC)](https://www.minicounsel.ca/scc/1985/41), [1985], 2 S.C.R. 2 (S.C.C.) at para. 25.
A police officer is not empowered to execute his or her duty by unlawful means. The public interest in law enforcement cannot be allowed to override the fundamental principle that all public officials, including the police, are subject to rule of law. To find that arbitrary police action is justified simply because it is directed at the fulfillment of police duties would be to sanction a dangerous exception to the supremacy of law. It is the function of the legislature, not the courts, to authorize arbitrary police action that would otherwise be unlawful as a violation of rights traditionally protected at common law.
- In R. v. O’Connor (1965), 1964 CanLII 134 (ON HCJ), 1 O.R. 360 (Ont. Ct. Jus.) at pp. 365 to 366 Mr. Justice Haines spoke to this question further when he noted with approval comments of Mr. Justice Roach:
[Police] should also understand that it is their duty, once they arrest a citizen, to tell him at once the charge on which he is arrested. Arrested with or without a warrant, the subject is entitled to know why he is deprived of his freedom, if only in order that he may without moment’s delay, take such steps as may enable him to regain it.
They should understand, too, that there can never be any justification for holding a prisoner incommunicado. We are told that such practice exists behind the iron curtain. There is certainly no room for it under our system of freedom under the law. If that were permitted, then a citizen could simply disappear for a day or several days, and no one would know his whereabouts except the police who had the custody. The prisoner, if he has to remain in custody, is certainly equally entitled, through his relatives or friends, to gather up evidence that will prove him innocent, as the police are entitled to gather up evidence that will prove him guilty.
The suggestion that any detective or other police officer is justified in preventing or attempting to prevent a prisoner from conferring with his counsel is a most shocking one. The suggestion that counsel, if he is permitted to confer with his client who is in custody, might thereby obstruct the police in the discharge of their duties is even more shocking. The prisoner is not obliged to say anything and the lawyer is entitled to advise him that right.
The lawyer is an officer of the court and it is the function of the courts to administer justice according to law. To prevent an officer of the court from conferring with the prisoner who in due course may appear before it, violates a right of the prisoner which is fundamental to our system for the administration of justice.
We also find assistance in the decision of the Supreme Court of Canada in R. v. Strachan, (1988) 1988 CanLII 25 (SCC), 46 CCC (3d) 479 at pp. 493 to 494. Chief Justice Dickson, speaking for the majority stated: “Thus I would say that the violation of s. 10(b) did not occur when Constable Bisceglia initially prevented the appellant from telephoning his counsel. But once the accused had been arrested, the weapons located, and the other two people had left, the police were clearly in control and there was no reason why they should not have allowed the appellant to telephone a lawyer. I would hold that the denial of counsel began from that point.”
In the case before us, Superintendent Maycock, after hearing all of the evidence and analyzing same, came to the conclusion that while the initial denial of the phone call to Mr. Parker did not violate the section 10(b) rights of Mr. Parker, based on legitimate safety concerns, the violation did begin at 3:15 p.m. on December 21, 1998 when Sergeant Blakely believed the threat was over and further there no longer existed any risk of evidence being destroyed (page 32 of the decision of Superintendent Maycock).
Sergeant Blakely himself had left the scene. A press release had gone out. Citizens and media were calling Quinte West Police Service inquiring about the raid. Two sisters of the Zebedee family had attended to care for the horses and were turned away by police. An animal control officer had come and gone to tend to dogs, without any caution to keep the raid confidential. Superintendent Maycock found that Sergeant Blakely should have called from his cell phone to allow Parker to exercise his section 10(b) rights rather than going home, changing clothes, then taking Zebedee first from the cells, while Mr. Parker remained incommunicado.
We agree with the reasoning of Superintendent Maycock. The analysis made by Superintendent Maycock of the evidence was thorough and well reasoned. The review and application of the extensive legal authorities presented to Superintendent Maycock was equally reasoned and without manifest or overriding error.
We do not agree with the argument that the hearing lacked fairness in that Sergeant Blakely was found guilty of something other than what had been the focus of the whole hearing. The Notice of Disciplinary Hearing found at Tab 4 of Sergeant Blakely’s Appeal Book sets forth particulars that the neglect of duty was based on a denial of section 10(b) rights to Mr. Parker starting with the time of his arrest at 2:45 p.m. on December 20, 1998. He was found guilty of misconduct based on the denial of rights to counsel starting at 3:15 p.m. on December 21, 1998, which timeframe was within the Statement of Particulars of the Notice of Disciplinary Hearing. Sergeant Blakely was aware of all of the accusations against him and the full particulars thereof. There was no denial or fairness to him.
Sergeant Blakely’s appeal for setting aside the penalty of reprimand imposed by the Hearing Officer Superintendent Maycock has no merit and is dismissed.
We, however, do agree with the submissions of counsel for Mr. Parker that the penalty of reprimand is inadequate and not proportional to the offense for violating Mr. Parker’s fundamental right guaranteed under section 10(b) of the Charter. In this regard we do feel that the Hearing Officer has made a manifest error in principle. A reprimand, being the lowest possible penalty available does not take into account the seriousness of such a violation, nor the sanctity with which such rights are regarded by the Charter of Rights and Freedoms itself, as well as the Supreme Court of Canada. Arbitrary violations of the right to counsel by police are to be strongly discouraged.
Sergeant Blakely should have been much more attentive and vigilant to the fact that Mr. Parker was sitting in a cell incommunicado. Not only must Sergeant Blakely understand the seriousness of a denial of the section 10(b) right of person arrested or detained, but the policing profession as a whole must be reminded that such a denial is rarely and most carefully considered. A reprimand simply cannot accomplish this result.
Therefore, we allow the appeal of Mr. Parker as to penalty, and substitute it with a reduction in rank for Sergeant Blakely from his present rank to the rank immediately subordinate for a period of six months, thereafter to be reinstated to his former rank.
DATED THIS 5TH DAY OF NOVEMBER 2004.
Peter J. Doucet Krishan D. Uppal
Member, OCCPS Member, OCCPS