Wayne Penner v. Constable Nathan Parker et al., 2005 CanLII 84851

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

Wayne Penner

APPELLANT

-and-

Constable Nathan Parker and

Constable Paul Koscinski and

Niagara Regional Police Service

RESPONDENTS

DECISION

Panel: Murray W. Chitra, Chair

Tammy Landau, Member

Hearing Date: February 21, 2005

Hearing Location:

Appearances:

Wayne Penner, Appellant

Gary R. Clewley, Counsel for Constables Nathan Parker and Paul Koscinski

Woodward B. McKaig, Counsel for Niagara Regional Police Service

I. Introduction

1. This is an appeal under sections 70(1) and (3) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) from a decision of retired Superintendent Robert J. Fitches (the “Hearing Officer”) dated June 28, 2004.

2. The decision was that Constables Nathan Parker and Paul Koscinski were not guilty of allegations of unlawful or unnecessary exercise of authority contrary to sections 2(1)(g)(i) and (ii) of the Code of Conduct found at O. Reg. 123/98 (the “Code”).

II. Background

3. Marlene Penner was charged by Constable Nathan Parker of the Niagara Regional Police Service on September 9, 2002 with the offence of driving a motor vehicle without displaying two plates contrary to section 7(1)(b) of the Highway Traffic Act R.S.O. 1990, c. H.8 as amended.

4. The trial of this matter took place before his Worship Justice of the Peace G. Tisi on January 28, 2003 in Court Room #2, 71 King Street, St. Catharines, Ontario.

5. The Prosecutor was David Brown. Marlene Penner represented herself. Her husband, Wayne Penner, was a spectator in the courtroom. Constable Paul Koscinski was also in the courtroom on an unrelated matter and sitting behind Mr. Penner in the last row at the back of the room.

6. Constable Parker testified. While he was giving evidence, different persons in the courtroom heard comments being made by Wayne Penner. These were described by the Prosecutor as “chirping … making comments, sort of to the side and under his breath, muttering … almost doing a running commentary on the ... proceedings as they unfolded.”¹

7. These remarks were not captured by the court recording devices. However, at one point during Constable Parker’s evidence the transcript of the court proceedings reads:

THE COURT OFFICER: You want to make a comment you can leave the Courtroom right now sir. I’m talking to you.

MS. PENNER: I would, he’s …

THE COURT OFFICER: You want to make a comment you can leave.

MS. PENNER: … Officer Parker laughed. In any case Your Worship we will continue.

THE COURT: Go ahead.²

8. Constable Parker completed his testimony and returned to the body of the court to sit beside Constable Koscinski.

9. Constable Parker spoke to Wayne Penner. There is some dispute about the exact words used. They appear to have been the effect that Mr. Penner could or would be arrested for his conduct.

10. About the same time, Marlene Penner was approaching the witness box. What occurred next is reflected in the transcript of the proceeding:

THE COURT: Do you want to take your, okay do you want to take the stand please?

THE CLERK OF THE COURT: Do you wish to swear on the bible?

MAN FROM THE BODY OF THE COURT: Keep shaking your head.

THE CLERK OF THE COURT: Please take the bible in your hand.

MR. BROWN: Your Worship the proceedings have been disrupted two or three times now and I’d ask that you consider removing the gentleman chewing gum with the sunglasses from the Courtroom. I’d like to speak to proceed with the trial uninterrupted.

THE COURT: Make sure that there is no interruption whatsoever, okay?

MAN FROM THE BODY OF THE COURT: Your Honour, I haven’t said a word.

THE COURT: Okay.

MAN FROM THE BODY OF THE COURT: Until this officer approached me and threatened me with arresting me.

THE COURT: All right.

MAN FROM THE BODY OF THE COURT: This one right here.

THE COURT: All right, I will …

MAN FROM THE BODY OF THE COURT: He just threatened with, threatened me with arresting me.

THE COURT: … well there was …

THE COURT OFFICER: I want you out of the Courtroom now, okay out.

OFFICER PARKER: Get up. Get up, out right now.

MS. PENNER: Yeah hey, what is going on here? Hey.

THE COURT: Okay, we are going to recess.³

11. At that point, the courtroom essentially dissolved in pandemonium.

12. Constable Parker laid hands on Wayne Penner. Mr. Penner pulled back. Constable Parker decided to arrest Mr. Penner for causing a disturbance. Constable Koscinski joined the fray. Marlene Penner tried to go to the aid of her husband and was restrained by the Court Officer.

13. The two officers dragged Wayne Penner from the courtroom and wrestled him to the ground in the hallway. His glasses got lost in the struggle. After the application of empty hand and knee strikes by both officers, Wayne Penner’s hands were cuffed behind his back.

14. While this was taking place, the Justice of the Peace ‘fled’ the Courtroom and the door locked behind him by the Court Clerk who called 911. After Wayne Penner was removed to Constable Parker’s police car, the Justice of the Peace returned, disqualified himself from continuing and directed a new trial.

15. Wayne Penner was driven to 11 Division by Constable Parker where he was booked, strip searched and lodged in a holding cell. He was subsequently escorted to St. Catharines General Hospital where he was examined and x-rayed. Mr. Penner was observed to be unsteady on his feet, had a black right eye, various scrapes and complained of sore ribs, a sore left elbow, a bruised left knee and a sore right wrist. He was returned to 11 Division, fingerprinted, and released from custody on a promise to appear.

16. The following day, Marlene Penner took a dozen photographs of her husband’s injuries.

17. In addition to causing a disturbance, Wayne Penner was charged with breach of probation and resisting arrest. All three charges were withdrawn by the Crown on June 23, 2003.

18. Mr. Penner subsequently filed a public complaint under Part V of the Act.

The Disciplinary Hearing

19. As a result of this complaint, a disciplinary hearing was directed against Constables Parker and Koscinski. As noted earlier, the specific allegations were that their conduct on January 28, 2003 contravened sections 2(1)(g)(i) and (ii) of the Code.

20. Section 2(1)(g)(i) deems it to be misconduct when an officer “without good and sufficient cause makes an unlawful or unnecessary arrest”. Section 2(1)(g)(ii) states that an officer commits misconduct if he or she “uses any unnecessary force against a prisoner or other person contacted in the execution of duty …”

21. Both officers pled “not guilty”. The disciplinary hearing took place over the course of several days in March and April of 2004. There were a total of 13 witnesses and 32 exhibits.

22. These witnesses included a number of individuals who were present in Court on January 28, 2003. They were the Prosecutor, Clerk of the Court, Court Officer, two citizens awaiting trials (Marshall Chipman and Kegan McLelland), Wayne Penner, Marlene Penner, Constable Parker and Constable Koscinski.

23. Wayne Penner denied making any comments during Constable Parker’s testimony. His testimony was supported by his wife. All of the remaining witnesses agreed that Mr. Penner was ‘chirping’ during Constable Parker’s evidence. There were differences about how many times this occurred, how loud the remarks were or whether or not he used profanity.

24. Mr. Penner asserted that he had been told by the Justice of the Peace that he could stay in the Court room. This was supported by Mrs. Penner. This was not reflected in the transcript of the court proceedings. This, along with the absence of any recording of Mr. Penner’s ‘chirping’ raised questions about the sensitivity and accuracy of the recording devices in the courtroom.

25. Mr. Penner’s evidence was that after Constable Parker left the witness stand “He said if I looked at him, I would be arrested.”⁴ Constable Parker testified that when he returned to his seat he “leaned over to Mr. Penner and I stated to him that … after the court proceedings, he was going to be placed under arrest for cause disturbance.”⁵

26. Constable Parker also testified that he did not arrest Mr. Penner at that moment because “The court proceedings were still ongoing, and the J.P. was still sitting, presiding over the … the proceeding, ongoing … Ah, I was not in charge of the courtroom.”⁶

27. Regardless of the words used, there was no doubt that they caused Mr. Penner’s voice to rise in volume to the point where it was captured by the court microphones.

28. Other matters canvassed during the hearing included Mr. Penner’s appearance and demeanour in the courtroom and his previous involvement with the criminal justice system. A number of witnesses were asked for their opinions on the general approach of His Worship Justice of the Peace Tisi to courtroom management and the manner in which different court officials dealt with disturbances.

29. There were also questions about whether or not Mr. Penner was struck in the eye while being booked at 11 Division. Two different video recordings of the booking were played a number of times. The officer in charge of the police lockup facilities at 11 Division testified.

30. Several legal issues were reviewed. These included whether or not a courtroom was a public place for the purposes of the application of section 175 of the Criminal Code. Other matters examined concerned the duty of police officers to provide courtroom security under section 137 of the Act, the scope of a police officer’s powers of arrest and whether or not any such powers were superseded by the authority of a Justice of the Peace to control proceedings in his or her courtroom.

31. A legal opinion was sought by the Hearing Officer and provided to the parties. That opinion, prepared by Mr. McKaig and dated April 26, 2004, concluded:

In this case, if the evidence at the hearing was to the effect that the Justice directed the officer to remove Mr. Penner from the Courtroom then those actions and the subsequent arrest, so long as the officer did not use excessive force, would appear to be lawful. If there was no direction from the Justice, and there was no physical threat which would invoke the Section 137 [of the Act] duties of police, then in our view the removal of Mr. Penner and his subsequent arrest are not lawful.

In conclusion, we are of the opinion that a Courtroom is a public place for the purposes of section 175 of the Criminal Code. We are also of the opinion that the Court’s power to deal with disruptions in a Courtroom supersedes a police officer’s power to arrest a suspect

for criminal behaviour in that Courtroom unless the Court so directs, or unless there is a threat of physical harm or danger which would require that a police officer act pursuant to Section 137 of the Police Services Act.⁷

32. The various parties provided their views on these conclusions.

The Hearing Officer’s Decision

33. The Hearing Officer issued his ruling on June 28, 2004.

34. He noted that the essential question to be determined was whether on not Constables Parker and Koscinski had the legal authority to arrest Mr. Penner at the courthouse on the date in question. If the arrest was authorized, and it was shown that Mr. Penner was resisting then the reasonable use of force could be justified.

35. The Hearing Officer canvassed the evidence of the different witnesses. He found that large portions of Mr. and Mrs. Penner’s evidence was untrue, overstated and lacking in forthrightness and candour.

36. He concluded that there was little doubt that Mr. Penner was making remarks during Constable Parker’s testimony. He found that despite warning, the remarks continued and that this conduct was disruptive, appeared to be escalating and was reasonable cause for concern.

37. The Hearing Officer determined that a courtroom could be seen as a ‘public place’ for the purposes of the application of section 175 of the Criminal Code. He found that given Mr. Penner’s conduct that there were reasonable and probable grounds to arrest him in the absence of the presence of the Justice of the Peace.

38. The Hearing Officer then identified the question of whether or not the presence of the Justice of the Peace would ‘cancel out’ the police officer’s statutory and common law powers of arrest. He concluded that the law on this question was ambiguous and that the prosecution had failed to establish in a clear and cogent way that Mr. Penner’s arrest was “not authorized by statute”.

39. As a result he concluded that he must “find in favour of the officers and treat the arrest as though it … [was] authorized by law”. The Hearing Officer then went on to find that given the fact that Mr. Penner was actively resisting a lawful arrest that the use of force was necessary, proper and justified. He concluded that approved techniques were used.

^{_________________________}

40. As well, he found that there was no evidence that Mr. Penner was struck in the eye while being booked at 11 Division and that any injuries that he might have suffered were the direct result of his resisting arrest.

41. All allegations against the officers were dismissed.

Appellant’s Position:

42. Mr. Penner challenges this decision.

43. His appeal raised a number of concerns of a factual nature. Many relate to the Hearing Officer’s determination that neither he nor his wife were credible witnesses. He took issue with both the accuracy and completeness of the audiotape and videotapes of events. He pointed out that the Hearing Officer did not address the severity of his injuries.

44. The main focus of Mr. Penner’s arguments was the legality of his arrest. He asserted that there were no grounds to arrest him and, if there were, the officers had no power to do so while the Justice of the Peace was present in the courtroom.

45. On these points he drew our attention to R. v. Jones et al. (1996), 1996 CanLII 8006 (ON CTGD), 29 O.R. (3d) 294 (Ont. Ct. Gen. Div.), R. v. Giardino [2004] O.J. No. 3242 (Ont. Ct. Jus.), R. v. Gillespie 1999 CanLII 4707 (MB CA), [1999] M.J. No. 562 (Man. C.A.) and Mr. McKaig’s legal opinion of April 26, 2004.

46. He requested that we order a new hearing.

Respondent Police Service’s Position

47. Mr. Woodward B. McKaig appeared on behalf of the Niagara Regional Police Service.

48. He argued that the Hearing Officer made appropriate finding of credibility against both Wayne and Marlene Penner. He suggested that the evidence clearly established that Wayne Penner was responsible for making both disruptive and/or profane comments during Marlene Penner’s trial. He noted that the Hearing Officer made supportable findings that Mr. Penner’s disruptive behaviour was escalating.

49. Mr. McKaig identified the standard of review applied by the Commission in assessing disciplinary decisions. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), Mowers and Hamilton-Wentworth Regional Police Service (1999), 3. O.P.R. 1327 (O.C.C.P.S.), Groat and Quinte West Police Service (2001), 3. O.P.R. 1513 (O.C.C.P.S.) and Besco and Peel Regional Police Service (2001), 3 O.P.R. 1496 (O.C.C.P.S.).

50. Mr. McKaig pointed out that the Hearing Officer considered the various opinions presented concerning the issue of whether or not the contempt power of a sitting Justice of the Peace superseded the arrest powers of a police officer. However, he noted that the Hearing Officer declined to decide the issue.

51. Mr. McKaig identified the various statutory provisions relating to the authority of a Justice of the Peace to punish an individual for contempt in the face of the court and the public nature of court proceedings. Provincial Offences Act R.S.O. 1990, c. P. 33 as amended, section 91; Criminal Code of Canada R.S.C.1985, c. C-46 as amended, section 150; Courts of Justice Act R.S.O. 1990, c. C.43 as amended, sections 135(1) and (2).

52. He further noted the duty of police services to provide courtroom security set out in section 137 of the Act. Mr. McKaig then went on to suggest that given the Hearing Officer’s findings with respect to Mr. Penner’s behaviour and the officer’s statutory duty under this provision that it was reasonable for the constables to effect an arrest. Accordingly, it was not necessary for the Hearing Officer to decide any question with respect to competing legal authorities.

Respondent Officers’ Position

53. Mr. Clewley, on behalf of Constables Parker and Koscinski, argued that we should not disturb the Hearing Officer’s decision.

54. Mr. Clewley asserted that the evidence was clear that Wayne Penner was disrupting court proceedings. He continued this disruption despite warning from the Court Officer.

55. Mr. Clewley argued that when Mr. Penner was ordered to leave the courtroom he stood up and began shouting. At that point he stated that Constable Parker believed that he had grounds to arrest Mr. Penner for causing a disturbance. He suggested that Mr. Penner actively resisted and that any injuries that he received were from the application of lawful force to restrain him.

56. Mr. Clewley argued strongly that we should not second-guess the decision of the Hearing Officer with respect to the credibility of witnesses.

57. On the legal points raised he asserted that it was clear that a courtroom was a ‘public place’ and that a disturbance could be caused there for the purposes of the application of section 175 of the Criminal Code.

58. Mr. Clewley argued that in the circumstance, it was lawful for the officers to arrest Mr. Penner rather than await a decision of the Justice of the Peace who was ‘hurrying out’ of the courtroom at the point where Mr. Penner began ‘shouting and swearing’.

59. He concluded by stating that the appeal was without merit and should be dismissed.

III. Decision

60. Police officers can face discipline for misconduct or unsatisfactory work performance either as the result of internal or public complaints. The ultimate determination of guilt or innocence rests with a hearing officer who must be a “police officer or a former police officer of the rank of inspector or higher or a judge or former judge who has retired from office”.⁸

61. The essential responsibilities of a hearing officer are to review the allegations, assess the evidence, determine the essential facts and apply the relevant law. The required burden of proof to secure a finding of culpability is “clear and convincing evidence”.⁹

62. A decision of a hearing officer is subject to appeal to the Ontario Civilian Commission on Police Services (the “Commission”). The Commission “may confirm, vary or revoke the decision being appealed or may substitute its decision for that of the chief of police …”¹⁰ Proceedings before the Commission are considered to be an appeal on the record as apposed to a new hearing.

63. Over the years the Commission has articulated various tests to be applied when exercising this appellate jurisdiction. Generally, the Commission will not interfere with the decision of a hearing officer unless he or she has made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence or drew erroneous conclusions from it.

64. The allegations against Constables Parker and Koscinski raised a number of important and complex issues.

The central question however, was whether or not they lawfully or necessarily arrested Mr. Penner on January 28, 2003 for causing a disturbance. If this arrest was unlawful or unnecessary then any force applied cannot be justified.

65. In order to properly address this question the Hearing Officer was required to make a number of determinations. First, was Mr. Penner causing a disturbance in a public place? Then, assuming that this was the case did the officers have the legal authority or necessity to arrest Mr. Penner when they did?

66. This must be determined in light of the fact that Constables Parker and Koscinski laid hands on Mr. Penner during a trial in the presence of a presiding Justice of the Peace who had provided them with no such direction. The obvious legal question to be addressed is whether or not any authority that the officers may have had to effect such an arrest were superseded by the power of the Justice of the Peace to maintain control over his courtroom and to direct and control of ongoing proceedings.

67. Unfortunately, the Hearing Officer elected not to answer this fundamental question. Rather, he chose to treat it as a matter of evidence requiring proof on a “clear and convincing” basis.

68. In his decision, he wrote:

After having received a great deal of assistance from the Prosecutor, Counsel for the Defence, and Mr. PENNER, and having done a fair amount of research into the question of the legality of the arrest, the issue remains sufficiently ambiguous so as to make it impossible for me to know whether or not there was some restrictions upon the officers’ powers of arrest because of the presence of the Justice of the Peace. When attempting to determine if Mr. PENNER’S arrest was not authorized by law, and when applying the generally accepted guidelines in police discipline matters, insofar as the burden of proof resting on the Prosecution, it necessarily follows that one of the points that would need to be proven would be that the arrest was not authorized by statute.

The evidence before me does not illustrate in any clear and cogent way that Mr. PENNER”S arrest was not authorized by statute. I am left unconvinced that a police officer’s powers of arrest are parked at the courtroom door when the court is in session.

Given that there is nothing to indicate to me that the arrest was unlawful, and further, given the fact that I have been unable to locate any authoritative clarification on the issue, I must find in favour of the officers, and treat the arrest as though it’s authorized in law.¹¹

69. With respect, this failure to address and determine the applicable law represents a manifest error.

70. In many cases the law will not be as clear as we would like. Nevertheless, it is the role of an adjudicator to conduct the necessary analysis and interpretation to determine what the law provides so that it may be applied to the facts of a particular case.

71. Under section 70(6) of the Act we do not have the authority to refer this matter back to the Hearing Officer for reconsideration as requested by Mr. Penner. As a result, we must address it.

72. There appears to be little dispute that a judge has the power to manage and control the conduct of proceedings in his or her courtroom. As well, it seems self-evident that the degree of control to be applied will vary depending on the style and approach of the individual judge.

73. This authority to exercise control flows from a number of sources depending on the level of court. By way of example, section 78(1) of the Courts of Justice Act states:

78(1) In matters that are assigned by law to the judiciary, registrars, court clerks, court reporters, interpreters and other court staff shall act at the direction of the chief justice of the court.

(2) Court personnel referred to in subsection (1) who are assigned to and present in the courtroom shall act at the direction of the presiding judge, master or case manager master while the court is in session.

74. As well, some courts exercise inherent or common law powers.

75. Justices of the Peace generally, do not fall under the latter category. However, the Provincial Offences Act grants specific power to Justices of the Peace providing over regulatory prosecutions to deal with contempt. Section 91 of that Act reads:

91(1) Except as otherwise provided by an Act, every person who commits contempt in the face of a justice of the peace presiding over the Ontario Court of Justice in a proceedings under this Act, is on conviction liable to a fine of not more than $1,000 or to imprisonment for a term of not more than thirty days, or both.

(2) Before a proceeding is taken for contempt under subsection (1), the justice of the peace shall inform the offender of the conduct complained of and inform him of his or her right to show cause why he or she should not be punished.

(3) A punishment for contempt in the face of the court shall not be imposed without giving the offender an opportunity to show cause why he or she should not be punished.

(4) Except where, in the opinion of the justice of the peace, it is necessary to deal with contempt immediately for the preservation of order and control of the courtroom, the justice of the peace shall adjourn the contempt proceeding to another day …

(6) Where a justice of the peace proceeds to deal with contempt immediately and without adjournment under subsection (4), the justice of the peace may order the offender arrested and detained in the courtroom for the purpose of the hearing and determination.

76. Contempt in the face of a court is a fairly broad concept. It has been described as conduct “which deliberately and in most cases publicly flouts the law and interferes with the administration of justice”.¹²

77. Given the above, it is clear that if His Worship Justice of the Peace Tisi was of the view that Mr. Penner’s ‘chirping’ was interfering with the administration of justice in his courtroom that he could have cited him for contempt and directed his arrest. He clearly chose not to do so. That was his decision to make.

78. In this context, it must be acknowledged that section 137 of the Act imposes on policing authorities a duty to provide court security. It reads:

137(1) A board that is responsible for providing police services for one or more municipalities has the following responsibilities, with respect to premises where court proceedings are conducted:

1. Ensuring the security of judges and of persons taking part in or attending proceedings.

2. During the hours when judges and members of the public are normally present, ensuring the security of the premises.

3. Ensuring the secure custody of person in custody who are on or about the premises including person taken into custody.

4. Determining appropriate levels of security for the purposes of paragraphs 1, 2, and 3.

5. In the case at hand, neither Constables Parker or Koscinski were assigned to court security duties. Rather, they were in the courtroom as witnesses.

6. The Oxford English Dictionary defines “security” as “the state of being free from danger or threat”.¹³ We agree with Mr. McKaig that section 137 obligations relate to physical threats or danger and do not give police officers the authority to deal with minor disturbances in a courtroom except as directed by the court.

7. That being said, all police officers have a duty under section 42(1)(a) of the Act to preserve the peace regardless of their assignment. In the case at hand Constables Parker and Koscinski arrested Mr. Penner for the criminal offence of causing a disturbance in a public place.

82. Section 175 of the Criminal Code states:

175 (1) Everyone who

(a) not being in a dwelling-house, causes a disturbance in or

near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language …

(ii) by impeding or molesting other persons …

is guilty of an offence punishable on summary conviction ...

(2) In the absence of other evidence, or by way of corroboration of other evidence, a summary conviction court may infer from the evidence of a peace officer relating to the conduct of a person or persons, whether ascertained or not, that a disturbance described in paragraph (1)(a) … was caused or occurred.

83. Section 150 of the Criminal Code defines “public” place as “any place to which the public have access as of right or by invitation, express or implied”. Section 135 of the Courts of Justice Act articulates the general principal that court hearings in Ontario, with limited exceptions, are open to the public.

84. Accordingly, it seems clear that police officers have the authority to charge a person with causing a disturbance in a courtroom and in the limited circumstances applicable to summary conviction matters, arresting that person.

85. There is no issue if such an arrest occurs outside a courtroom or in a courtroom without the presence of a Justice of the Peace.

86. However, in the middle of an ongoing court proceeding, absent either a clear and present threat or direction by the Court, we believe that such authority is superseded by the court’s power to deal with disruptive behaviour falling under the broad definition of contempt.

87. We acknowledge that there are no precedents specifically on this question. However, to our mind, the point is somewhat analogous to previous court decisions dealing with disputes between some judges and court security officials with respect to the handcuffing and shackling of prisoners.

88. In Regina v. Jones et al. Mr. Justice Then of the Ontario Court (General Division) remarked at pages 307 to 308:

For the purposes of the application before me I cannot accept that the legislature either intended to or in law could by way of provincial statute and more specifically by means of s. 137(3) of the Police Services Act, oust the jurisdiction of the preliminary inquiry judge functioning under the Criminal Code to determine issues affecting the liberty of a prisoner within the confines of a courtroom …

The manner in which the discretion is to be exercised is for the judge to determine in the particular circumstances of each case in which the shackling of a prisoner in the courtroom is raised. The authorities in which have been cited to me suggest that a balance should be struck between the duty of the judge to ensure the safety of all participants to the proceeding and to prevent escape on one hand, and the need to maintain the dignity of the prisoner in the context of the presumption of innocence on the other. In effecting this balance the views and expertise of the security personnel will no doubt be given considerable weight. The ultimate determination, however must be made by the presiding judge and not by security staff.

89. This logic was adopted by His Worship Justice of the Peace Cuthberston in R. v. Giardino.

90. Put in the context of this case, Mr. Justice Tisi had a duty to ensure that Marlene Penner’s trial took place in a public forum. Further, he had the power and authority within the confines of his courtroom to ensure that the proceeding before him took place in a manner that satisfied his sense of order and decorum. This responsibility and authority was not ousted or superseded by the general duties of police officers under section 42(1)(a) or police authorities under section 137 of the Act.

91. How does this apply to the facts of this case? There is little doubt that during the course of Marlene Penner’s trial that her husband was ‘chirping’ in the body of the court. His mutterings do not appear to have been loud enough to have captured on the court recording devices.

92. However, they certainly were disturbing to the Prosecutor and attracted the attention of the Court Officer who warned Mr. Penner. His Worship Justice of the Peace Tisi directed the witness to continue. Clearly, he felt no further action was required.

93. Following his testimony, Constable Parker returned to the body of the Court and spoke to Mr. Penner. His mention or threat of arrest caused Mr. Penner to raise his voice to the point where it was captured on the court recording device. As noted earlier Constable Parker testified that it was not his intention to arrest Mr. Penner at that time because court was ongoing, the Justice of the Peace was sitting and he was not in charge of the courtroom.

94. The Prosecutor voiced his concern about Mr. Penner’s outburst directly to the Court. According to the Prosecutor “Frankly, I didn’t expect the justice necessarily to have him removed, but certainly that he be directed to ah, be quiet. Or he might have removed him. I mean, it would’ve been up to him at that point, but I’d had enough.”¹⁴

95. The Justice of the Peace then spoke directly to Mr. Penner. In the course of this discussion the Court Officer interrupted and directed Mr. Penner to get out of the courtroom. The Court Officer testified that it was not his expectation that Constable Parker take any action.¹⁵

96. Notwithstanding this, Constable Parker immediately rose and laid hands on Mr. Penner and directed him to “Get up. Get up, out right now.” Mr. Penner pulled away and it was presumably at this point that Constable Parker determined that it was necessary to arrest Mr. Penner and was supported by Constable Koscinski in this decision.

97. Was this arrest lawful? We think not, particularly given the fact that the Justice of the Peace was sitting and attempting to deal with Mr. Penner who appears to have been trying to respond to the Prosecutor’s request for his removal and voice his concerns about Constable Parker’s comment to him.

98. Assuming that this arrest was lawful, was it necessary? Again, we think not. Even discounting Mr. Penner’s attempts to deny his obviously inappropriate ‘chirping’, the official transcript of the proceeding just prior to his arrest does not disclose any profanity or clear and obvious threat of the nature that would override the Justice of the Peace’s authority to control his courtroom.

99. Further, even assuming the Court Officer had the right to interrupt the Justice of the Peace and order Mr. Penner to leave the courtroom Mr. Penner does not appear to have had opportunity to voluntarily do so before Constable Parker laid hands on him. The subsequent escalation of events and pandemonium appear to have been a direct result of that decision.

100. Without in anyway attempting to excuse Mr. Penner’s conduct, we are satisfied that the facts of this case disclose more than sufficient clear and convincing evidence that his arrest by Constables Parker and Koscinski was both unlawful and unnecessary and that accordingly any force used was unjustified.

101. As a result, we revoke the decision of the Hearing Officer and find Constables Parker and Koscinski guilty of unnecessary or unlawful exercise of authority contrary to both sections 2(1)(g)(i) and (ii) of the Code of Conduct.

102. However, we wish it clearly understood that any finding of unnecessary force does not include the alleged blow to Mr. Penner’s eye while he was being booked at 11 Division. This particular allegation is clearly not supported by the evidence and the Hearing Officer’s decision in this regard is both correct and proper in law.

103. We direct all parties to provide the Registrar of the Commission with written submissions within the next 45 days with respect to penalty, so that we may address this question.

DATED AT TORONTO THIS 22^ND^ DAY OF APRIL, 2005.

Murray W. Chitra Tammy Landau

Chair, OCCPS Member, OCCP

Footnotes

1. 1Transcript of Disciplinary Hearing, March 9, 2004, page 67.
2. 2Transcript of R. v. Penner, January 28, 2003, pages 8 to 9.
3. 3Transcript of R v. Penner , January 28, 2003, pages 11 to 12.
4. 4Transcript of Disciplinary Hearing, March 8, 2004, page 11.
5. 5Transcript of Disciplinary Hearing, March 11, 2004, page 8.
6. 6Ibid., page 9
7. 7Exhibit 30
8. 8Section 76(1) of the Act.
9. 9Section 64(10) of the Act
10. 10Section 70(6) of the Act
11. 11Transcript of Disciplinary Hearing, June 28, 2004, pages 14 and 15.
12. 12Regina v. Cohn (1984), 1984 CanLII 43 (ON CA), 48 O.R. (2d) 65 (Ont. C.A.) at page 75.
13. 13"The New Oxford Dictionary of English"; Oxford University Press, Ed., Judy Pearsall, page 1681.
14. 14Transcript of disciplinary hearing, March 9, 2004, pages 69 to 70.
15. 15Ibid., pages 137 to 138.