Sergeant Mark Wolfe v. Ontario Provincial Police, 2005 CanLII 84858

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

Sergeant Mark Wolfe APPELLANT

-and-

Ontario Provincial Police RESPONDENT

DECISION

Panel: Murray W. Chitra, Chair Biagio (Bill) Marra, Member Krishan D. Uppal, Member

Hearing Date: Wednesday, September 21, 2005

Hearing Location:

Appearances: Lorna E. Boyd, Counsel for the Appellant Lorenzo D. Policelli, Counsel for the Respondent

I. Introduction

1. This is an appeal from a decision of Superintendent Morris Elbers (the “Hearing Officer”) of February 28, 2005 in which he found Sergeant Mark Wolfe guilty of one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at O. Reg. 123/98 (the “Code”).

2. As well, this is an appeal of the penalty imposed by the Hearing Officer on April 15, 2005. That penalty required that Sergeant Mark Wolfe forfeit twelve hours pursuant to section 68 (1)(f) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”).

3. However, the Hearing Officer directed that Sergeant Wolfe satisfy this penalty by working annual leave or rest days. One month was allocated to complete the disposition. Further, Sergeant Wolfe was directed to advise the Professional Standards Bureau once his penalty was satisfied.

II. Background

4. Mark Wolfe joined the Ontario Provincial Police Service (the “OPP”) on September 8, 1987. His career has been primarily in traffic enforcement. In December 2000, he was transferred to the Kawartha Lakes Detachment as sergeant, which position he currently holds.

5. On the evening of February 15, 2003 Sergeant Wolfe was on duty as shift supervisor. A vehicle was reported stolen. There was a high-speed pursuit of that vehicle involving six OPP officers in five police cruisers. This included Sergeant Wolfe.

6. On August 6, 2003 he was charged with the disciplinary offence of discreditable conduct. The specific allegation against Sergeant Wolfe was as follows:

On February 15, 2003 while attempting to apprehend a suspect in a stolen vehicle [you] did discharge your firearm into the tires of the vehicle contrary to Section 8 of the Ontario Regulation 546/99-Suspect Apprehension Pursuits, made under the Police Services Act.

You knew or ought to have known that your conduct was inappropriate.

7. On October 26, 2004 Sergeant Wolfe appeared before the Hearing Officer and pled not guilty.

The Hearing

8. Sergeant Wolfe’s disciplinary hearing took place over the course of several days during October and November of 2004. Ten witnesses including Sergeant Wolfe testified. Twenty-nine items were received as exhibits.

9. The evidence disclosed that at 8:21 p.m. on February 15, 2003 the OPP Communications Centre advised officers that a 1998 Ford Contour motor vehicle had just been stolen by a man smelling of alcohol from the Norland Foodland in downtown Norland, Ontario.

10. Constable Chris Lewis was doing routine patrol northbound on Highway 35. At 8:30 p.m. he observed the suspect vehicle traveling at an extremely high rate of speed southbound in the area of Lake Breeze Road. He activated his radar and confirmed that the car was being driven at 142 kilometers an hour. Constable Lewis changed direction and followed the suspect vehicle. He observed that the driver was operating in an erratic and dangerous manner. In addition to the speed the driver was changing lanes, alternating signal lights back and forth, using the four way flashers and turning the head and taillights on and off.

11. Despite the fact that Constable Lewis had not activated his emergency lights, the stolen vehicle driver suddenly pulled over to the east shoulder of the highway. Constable Lewis pulled in behind him. The officer asked for another unit to attend at his location. He exited his police car and took three steps towards the suspect vehicle. It took off southbound. Constable Lewis returned to his car, activated his lights and sirens and began a pursuit.

12. Constable Lewis observed the suspect vehicle traveling at speeds of approximately 160 to 180 kilometers an hour mainly in the oncoming lane. A number of northbound cars had to pull over on the shoulder. Constable Lewis advised the Communications Centre of this situation and was informed that the Communications Sergeant was monitoring the pursuit. A tower call was established to permit all officers to monitor transmissions.

13. As a result, a number of officers, including Sergeant Wolfe started to move in the direction of the pursuit. Sergeant Wolfe began to coordinate their efforts and made arrangements for the deployment of a spike belt. These attempts were hampered by the fact that at least one officer pressed his emergency communication button causing the tower to ‘drop’. As a result, officers began to communicate on their portable radios.

14. Constable Lewis followed the suspect vehicle into the Hamlet of Cameron. The vehicle slowed to 60 kilometers an hour and the driver opened his door and dropped a black shiny “v-shaped” object very close to the ground with his left hand. This black object was heavy and flat and did not bounce when it hit the road. Constable Lewis testified that he was 100% sure that he told the dispatcher that he believed the object was a handgun. The driver of the suspect vehicle accelerated to approximately 150 kilometers per hour.

15. Near Cambray Road, the driver of the suspect vehicle slammed on his brakes, causing his car to skid approximately 50 meters. Constable Lewis managed to stop before he hit the rear of the car. The fleeing vehicle accelerated again. This maneuver was repeated two more times and on both occasions the officer managed to stop the police cruiser. On the fourth occasion, just north of Killarney, the driver of the suspect vehicle accelerated to approximately 140 kilometers and slammed on his brakes. Constable Lewis’ brakes ‘faded’ and his police cruiser struck the rear of the suspect vehicle. This caused the cruiser’s air bags to deploy and front window to shatter.

16. The pursuit continued southbound and Constable Lewis observed another police cruiser with emergency lights activated at the T-intersection of Killarney Bay Road and Highway 35. This was Sergeant Wolfe. Constable Lewis continued the pursuit with Sergeant Wolfe following. He observed the suspect vehicle being driven on the wrong side of the road going up a hill through a rock cut.

17. Sergeant Wolfe radioed Constable Lewis and other officers involved in the pursuit that he had decided to deploy a spike belt north of Thunder Bridge Road. Sergeant Wolfe directed Constable Deyell to block the north lane with his police cruiser, set the belt in the southbound lane and then get out of the way. Constable McDermott (with Constable McCann as a passenger) were positioned in their police cruiser just beyond the spike belt.

18. The suspect vehicle passed over the spike belt at a speed of at least 160 kilometers per hour. It appeared to have little effect and the car continued southbound at a high rate of speed. Beyond the spike belt, Constable McDermott maneuvered his car to the middle of the road in an attempt to establish a rolling block with Constable Lewis. Constable McDermott and Constable McCann were traveling at 60 to 80 kilometers an hour. The driver of the suspect vehicle smashed into the rear passenger area of their cruiser causing it to veer to the left.

19. As Constable McDermott observed the suspect vehicle slide past the passenger side of his cruiser, he noticed another marked police cruiser in close pursuit. This was a Crown Victoria being driven by Sergeant Wolfe. It sped past him and made intentional contact with the side of the fleeing vehicle. This maneuver caused the suspect vehicle to skid, spin and stop. The dynamics of the impact brought Sergeant Wolfe’s police cruiser to a halt four to five car lengths beyond the suspect vehicle.

20. Three police vehicles arrived on the scene almost immediately. This included the cruiser with Constable McDermott and McCann, Constable Lewis with his broken window and another car driven by Constable Corbett. All officers exited their cruisers and moved towards the suspect vehicle on foot.

21. Constables Corbett and Lewis appear to have reached the suspect vehicle first. Constable Corbett had his pepper spray out and attempted to open the passenger side door. It was locked. Constable Lewis was behind him with his baton ready to smash a window. Constable McDermott started towards the suspect vehicle and observed Sergeant Wolfe doing the same. Constable McCann exited his police cruiser and heard several officers yelling directions at the driver. This included orders to shut off the motor and come out. Several police challenges were issued.

22. Sergeant Wolfe testified that upon exiting his cruiser, he drew his service revolver with the intention of carrying out a high-risk arrest. He observed two figures off to the back rear corner of the suspect vehicle (Corbett and Lewis). He saw the driver of the suspect vehicle looking over his right shoulder with his attention focused on these officers. Sergeant Wolfe could not see the suspect’s hands.

23. Sergeant Wolfe stated that it was his intention to cover the suspect. However, he was concerned about putting the two officers in a crossfire position. As a result, he moved to his left and slightly towards the suspect vehicle while keeping his firearm in a low ready position. This put him towards the front of the car.

24. Sergeant Wolfe observed the driver of the suspect vehicle turn forward and look him right in the eyes. At this point he was able to see both of the suspect’s hands on the wheel. All of a sudden he heard a motor revving. He also observed blue smoke coming from the tires of the suspect vehicle as they were spinning. He feared that the suspect vehicle was going to run him over. Sergeant Wolfe ‘drew up’ his firearm and had a ‘sight picture’ of the suspect’s head. He was prepared to shoot.

25. Constable McDermott was standing five feet from the driver’s side of the suspect vehicle. He saw the car start to move towards Sergeant Wolfe. He drew his firearm and pointed it at the head of the driver while yelling at him to stop. He placed his finger on the trigger. On the other side of the suspect vehicle, Constable Lewis swung his baton. He was aiming at the front passenger window, but as the vehicle lurched forward his blow shattered the rear door side widow.

26. Sergeant Wolfe stepped to his right to avoid the oncoming car. As the suspect vehicle was passing by, he testified that he ‘dug down’ low and discharged two rounds into the ‘rear wheel assembly’. His notes state that he “discharged two rounds at the rear left tire in a downward direction”. Constable McDermott described Sergeant Wolfe as ‘leaning in front’ of him and firing two rounds in the rear tire of the vehicle.

27. At the disciplinary hearing, Sergeant Wolfe explained he fired because he both feared for his life and wished to eliminate the threat posed to ‘any civilians or police officer’. He made it clear that to his mind the driver had to be stopped.

28. The shots had no effect and the suspect vehicle raced away, moving south and veering into the northbound lane. The officers returned to their cruisers and continued the pursuit. Sergeant Wolfe’s cruiser became the lead vehicle. There was oncoming traffic. Sergeant Wolfe once again made intentional contact with the fleeing car. This maneuver forced the suspect vehicle into a snow bank. Constable McDermott hit the rear of the vehicle. Constable Lewis drove into the front fender to pin the suspect vehicle against the snow bank.

29. About this time the Communications Sergeant directed that the pursuit be discontinued. However, the officers were out of their vehicles struggling with the driver who was resisting arrest. He was eventually taken into custody. The pursuit had lasted 10 minutes and covered 21 kilometers from beginning to the final stop.

30. The driver of the suspect vehicle was subsequently charged with several criminal offences including theft, possession of stolen property, driving while impaired, flight from police, mischief endangering life. He eventually pled guilty, and, given a lengthy criminal history, was sentenced to five years and four months in penitentiary for his conduct that evening.

31. In addition to evidence with respect to the pursuit, the Hearing Officer heard testimony from Mr. Don McKnight, Manager, Leadership Standards, OPP Academy and Mr. John Zeyen, Team Leader, Firearms Training Section of the Ontario Police College. They spoke to pursuit policies and procedures, use of force and training.

32. The Hearing Officer delivered his judgment on February 28, 2005. In his decision he described the evidence in some detail. He noted section 8 of O. Reg. 546/99 which states:

33. A police officer shall not discharge his or her firearm for the sole purpose of attempting to stop a fleeing motor vehicle.

34. As well, he referred to the Suspect Apprehension Pursuit Training Manual, Use of Force Guidelines and Suspect Apprehension Pursuit Training Material.

35. The Hearing Officer acknowledged the perils of 20/20 hindsight in ‘the relative calm atmosphere of a hearing room’. He noted that Sergeant Wolfe did not communicate to other officers his initial intention to ram the suspect vehicle. However, he was satisfied that this contact was justified. That being said, he expressed reservations about Sergeant Wolfe’s decision to exit his vehicle with his gun drawn and move on foot towards the front of the suspect vehicle when he was not fully aware of his surroundings.

36. The Hearing Officer found that the suspect vehicle was not bearing down on Sergeant Wolfe when he discharged his firearm. Rather, the vehicle was passing beside him and thus he was not at risk when he chose to shoot. The Hearing Officer noted the ineffectiveness and dangerousness of firing at moving vehicles and suggested that it was fortunate that neither of the officers on the other side of the fleeing car were struck.

37. The Hearing Officer stated that he had no doubt that Sergeant Wolfe was an excellent supervisor. However, he believed that Sergeant Wolfe had become frustrated with the pursuit and the actions of the fleeing driver and became determined to stop the vehicle and end the risk that he perceived it posed to members of the public and his men. The Hearing Officer found that both the ramming and discharge of the firearm in the direction of the passing rear assembly and tire were for the sole purpose of stopping the suspect vehicle.

38. He suggested that Sergeant Wolfe should have maintained his primary role as supervisor, but ‘got entirely involved in the apprehension of the suspect vehicle’. The Hearing Officer highlighted the importance of adhering to firearms discipline and concluded that Sergeant Wolfe had violated section 8 and thus was guilty of discreditable conduct.

39. The Hearing Officer received penalty submissions on March 18, 2005. Material offered in evidence included Sergeant Wolfe’s career profile, performance evaluations, letters of appreciation, 45 letters of support and various cases.

40. The Prosecutor suggested a penalty of loss of twenty-four hours. Ms. Boyd, on behalf of Sergeant Wolfe, submitted that given the circumstances of the events in question and Sergeant Wolfe’s stellar record that the appropriate penalty be a reprimand.

41. The Hearing Officer delivered his penalty decision on April 15, 2005. He assessed a forfeiture of twelve hours subject to the various conditions noted previously.

Appellant’s Position

41. Ms. Boyd, on behalf of Sergeant Wolfe, is appealing both the finding of guilt and the conditions imposed on the penalty handed down by the Hearing Officer.

42. Ms. Boyd argued that the decision of the Hearing Officer was both incomprehensible and nonsensical. She suggested that the failure on the part of the Hearing Officer to provide meaningful reasons or analysis resulted in the breach of a duty of procedural fairness. On this point she noted R. v. Sheppard 2002 SCC 26, [2002], 1 S.C.R. 869 (S.C.C.) and R. v. M. (Y.) (2004), 2004 CanLII 39045 (ON CA), 71 O.R. 388 (Ont. C.A.).

43. She argued that the Hearing Officer’s finding that Sergeant Wolfe was guilty of discreditable conduct was not supported by the evidence before him and should be overturned.

44. She took issue with several of the Hearing Officer’s findings. These related to:

• whether or not Sergeant Wolfe put himself at risk by exiting his vehicle;
• the failure of officers to “pin” the suspect vehicle on the first stop;
• the affect of communications problems on the events in question;
• whether or not Wolfe was frustrated with the pursuit; and
• the impact of the subsequent plea of the driver to three counts of mischief endangering life contrary to section 430(2) of the Criminal Code.

45. Ms. Boyd drew our attention to Williams and OPP (1995), 2 O.P.R. 1047 (O.C.C.P.S.), Bettes and Peel Regional Police Service (1996), 2 P.L.R. 395 (O.C.C.P.S.), Girard v. Delaney (1995), 2 P.L.R. 337 (Ont. Bd. Inq.), Favretto and OPP (13 February, 2002, O.C.C.P.S.) and Ciotka and OPP (1994), 2 O.P.R. 984 (O.C.C.P.S.).

46. She further argued that the Hearing Officer did not properly understand section 8 of O. Reg. 546/99. In particular, she suggested that the Hearing Officer failed to correctly apply the concept of ‘sole purpose’ to the facts of the case. Ms. Boyd suggested that in lethal confrontations involving bizarre behavior on the part of a suspect an officer is not prohibited from discharging his or her firearm. Shaw and McGuigan and OPP (1979), 1 O.P.R. 422 (O.P.C.)

47. Ms. Boyd indicated that the Hearing Officer failed to properly apply to the facts of this case the authorization provided by section 25(4) of the Criminal Code to peace officers to use necessary force in performing their lawful duties. As well, she argued that the Hearing Officer misunderstood section 9 of O. Reg. 926/90 as amended. That regulation prohibits a police officer from discharging a firearm “unless he or she believes, on reasonable grounds, that to do so is necessary to protect against loss of life or serious bodily harm.”

48. Ms. Boyd suggested that the Hearing Officer failed to understand the evidence of Mr. John Zeyen concerning reasonable use of force options. She referred to Mr. Zeyen’s acknowledgement in testimony that an automobile could be used as a weapon and in such situations, it would be reasonable to discharge a firearm. She further noted that no officer in perilous circumstances is required to select a perfect use of force option and indeed other officers confronted with similar situations could make different acceptable choices. Tarrio v. Elliot (1995), 2 P.L.R. 332 (Ont. Bd. Inq.) and Abbotsford (City) Police Department v. British Columbia (Police Complaints Commissioner) (2001), 2001 BCCA 573, 93 B.C.L.R. (3d) 26 (B.C.C.A.)

49. Ms. Boyd argued that the Hearing Officer failed to properly assess Sergeant Wolfe’s evidence that he fired his firearm because he was terrified and feared for his life and those of his fellow officers. She suggested that any proper objective analysis of the reasonableness of Sergeant Wolfe’s subjective belief of imminent harm required that the Hearing Officer take into account the perceptions of other witnesses who were present that evening. This, she states, did not take place. Fraser v. Falkeisen (1994), 2 P.L.R. 300 (Ont. Bd. Inq.) and Brown and Haldimand-Norfolk Regional Police Service (1987), 2 O.P.R. 776 (O.P.C.)

50. Finally, Ms. Boyd took issue with the penalty imposed. She argued that the Hearing Officer exceeded his jurisdiction by imposing several conditions on the forfeiture of 12 hours. She suggested that these conditions offended both long-standing practice and Article 6 of the Uniform Memorandum of Understanding between the OPP and Ontario Provincial Police Association. On these points she drew our attention to Dinsdale and OPP (30 December, 2004, O.C.C.P.S.) and Ontario Provincial Police Association and Her Majesty the Queen in Right of the Province of Ontario (25 June, 2001, O.P.P.G.B.).

51. In conclusion, Ms. Boyd requested that we overturn the finding of discreditable conduct against Sergeant Wolfe. No specific order was sought with respect to the penalty. However, given the arguments we conclude that Ms. Boyd is seeking deletion of the conditions attached to the forfeiture of twelve hours.

Respondent’s Position

52. Mr. Policelli, on behalf of the OPP, took the position that the Hearing Officer provided sufficient reasons to support his findings and to permit the Appellant to understand the rationale for both his conviction and the penalty imposed on him.

53. Mr. Policelli argued that viewing the evidence as a whole, there was a factual foundation for the Hearing Officer to conclude that Sergeant Wolfe was guilty of violating section 8 of O. Reg. 546/99. He asserted that such a finding could form the basis of a conviction for discreditable conduct.

54. Mr. Policelli highlighted portions of the evidence that he suggested supported the Hearing Officer’s conclusion that the ‘sole purpose’ of Sergeant Wolfe’s firing at the rear tire was to stop the suspects’ vehicle from fleeing.

55. He noted that it is not our role to second-guess the decision of the Hearing Officer and that we should only interfere in cases where the conclusions cannot reasonably be accepted. On this point he drew our attention to Williams and OPP.

56. Mr. Policelli argued that the Hearing Officer both properly understood and applied the provisions of section 8 of O. Reg. 546/99 and section 9 of O. Reg. 926/90 as amended. He stated that section 9 requires that an officer have ‘reasonable grounds’ to believe that his or her life is in danger before discharging a firearm. He suggested that in the circumstance of this case (i.e. the suspect vehicle was passing Sergeant Wolfe when he fired) ‘such reasonable’ grounds did not exist.

57. Mr. Policelli also argued that there must be an objective aspect to the application of the ‘sole purpose’ threshold in section 8. Otherwise he suggested, this provision, designed to ensure public safety, for all practical purposes, would be without force.

58. Mr. Policelli asserted that the clear purpose of section 8 is to prevent the use of a firearm against moving vehicles because it is ineffective and dangerous. He argued given the circumstances of this case (i.e. the presence of the other officers on the passenger’s side of the fleeing vehicle) the Hearing Officer properly concluded that the actions of Sergeant Wolfe gave rise to a clear danger to both the public and his fellow officers. Brown and Haldimand-Norfolk Regional Police Service and Henderson and Sarnia Police Service (1968), 1 O.P.R. 12(O.P.C.).

59. On the question of penalty, Mr. Policelli acknowledged that section 68(1)(f) of the Act is silent on how a penalty of forfeiture is to be satisfied. However, he asserted there was nothing in either the Act or custom to prevent a Hearing Officer from imposing reasonable conditions on how a penalty is to be met. In this regard he drew our attention to Tran v. Oosteroff (26 November, 1993, Ont. Bd. Inq.).

60. In conclusion, Mr. Policelli requested that we dismiss this appeal and uphold the penalty as directed.

III. Decision

61. Disciplinary proceedings against police officers in Ontario are governed by the Police Services Act. Section 69(1) of the Act directs that any hearing “shall be conducted in accordance with the Statutory Powers Procedure Act.”

62. Section 17(1) of the Statutory Powers Procedure Act R.S.O. 1990, c. S. 22 as amended states: “A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefore if requested by a party.”

63. Any reasons must be adequate and intelligible. It is not sufficient for a tribunal to simply summarize the positions of the parties and baldly state a conclusion. Reasons must address the major points at issue. They need not contain an exhaustive analysis of every question or collateral concern raised.

64. The explanation for this is simple. It is to ensure natural justice. An officer is entitled to know how a conclusion that adversely affects his or her future was reached. As well, the absence of reasons would thwart any meaningful right of appeal to this Commission.

65. In the case before us, the Hearing Officer released two sets of reasons. His first decision, dated February 28, 2005 with respect to Sergeant Wolfe’s conviction was fourteen pages in length. His decision on penalty, dated April 15, 2005 was seven pages. It is the former that is the main focus of this appeal.

66. We have no doubt that the decision of February 28, 2005 might have been better expressed and organized. However, perfection is not the standard of review. The Hearing Officer set out the allegation against Sergeant Wolfe, summarized the evidence, identified the relevant regulations and policies, articulated his findings and reached a conclusion.

67. As such, we are satisfied that the decision of February 28, 2005 is sufficiently detailed. Further, section 70(5) of the Act provides that this is an appeal on the record. The reasons provided, along with the complete record submitted, are sufficient to permit us to properly assess the result reached in this case.

68. On this point, it is also worth stating that our role on appeal is not to second-guess the decision of the Adjudicator. Rather, our function is to determine whether or not the conclusions of the Hearing Officer are without evidentiary foundation or cannot be reasonably supported.

69. At the heart of the case before the Hearing Officer was the question of the appropriateness of the use of a firearm in a particular situation. To assess the reasonableness of Sergeant Wolfe’s actions, it is necessary to understand the legislative context.

70. Section 42(1)(d) of the Act states that the duties of a police officer include “apprehending criminals and other offenders who may be lawfully taken into custody”. To this end police officers are authorized to use force. Section 25(4)(e) of the Criminal Code makes it clear that police officers are entitled to use “force that is intended or likely to cause death or serious bodily harm to a person to be arrested, if … the flight cannot be prevented by reasonable means in a less violent manner.”

71. These provisions cannot be read in isolation. Over the course of many years, directions, regulations and extensive training has been developed to guide police officers in determining what level of force is appropriate and what “reasonable means” can be applied to prevent flight.

72. O. Reg. 926/90 as amended addresses the general subject of equipment and use of force. In particular, it speaks to the question of firearms. It describes the types of firearms and ammunition to be issued to police officers and the necessary training required of them. Section 9 also makes it clear that a police officer is not to draw “or discharge a firearm unless he or she believes on reasonable grounds, that to do so is necessary to protect against loss of life or serious bodily harm.”

73. The use of a firearm is further circumscribed in the case of the police pursuit of automobiles. As the Hearing Officer heard from Mr. McKnight, in the late 1990’s there were a series of high-speed pursuits that resulted in the death of innocent third parties. Consideration was given to banning such pursuits altogether. As an alternative O. Reg. 546/99 was developed. It came into force on January 1, 2000.

74. The regulation prescribes in detail the procedures to be followed before, during and after such a pursuit. The regulation was accompanied by a Suspect Apprehension Training Manual developed by the Ontario Police College (Exhibit #6). It identified six approved methods for terminating pursuits (strategic following, discontinuing, tire deflation devices, rolling block, pinning and intentional contact).

75. Further, the OPP established Standing Orders (Exhibit #7) and In-House Training for all of its officers on the new regulation (Exhibit #15). At the hearing, it was made clear that Sergeant Wolfe was well aware of the pursuit regulation, Standing Orders and required training.

76. At the heart of O. Reg. 546/99 is section 8. It states “A police officer shall not discharge his or her firearm for the sole purpose of attempting to stop a fleeing motor vehicle.” This makes it clear that use of a firearm is not an approved method of stopping a pursuit. Mr. McKnight testified that this provision was not new. It mirrored a Provincial Directive that had been in place since 1989.

77. As well, some police services have had standing orders that effectively prohibited this practice well before 1989. An example of this can be seen in the 1968 decision of Henderson and Sarnia Police Service.

78. During the course of the hearing, there was much evidence concerning the reasons for this prohibition. Testimony indicated that police experience over the years was that discharging a firearm at a moving vehicle was both dangerous to anyone in the vicinity and ineffective.

79. The prohibition is not absolute. There is one obvious exception. That is the case where an officer has a reasonable immediate fear for his or her life or that of another person. A good example of this can be found in the 1987 decision of Brown and Haldimand-Norfolk Regional Police Service. While this case predates both the Provincial Directive and O. Reg. 546/99, it makes an important point.

80. In Brown the officer in question was on foot near a roadblock established to stop a suspected impaired driver being pursued at speeds of 150 kilometers an hour. As the car approached the roadblock, it drove directly at Constable Brown. When the vehicle was twenty feet away, Constable Brown fired a single shot into the vehicle’s radiator. The car veered away from him and passed by.

81. Constable Brown was initially convicted of discreditable conduct. This decision was overturned by the Ontario Police Commission. The explanation at page 770 was as follows:

The test in our opinion is to look at the state of mind of the officer at the time had to take action. Perhaps discharging the firearm into the car was fruitless. He could not hope to stop a speeding car twenty feet away. It was an act of panic out of fear for his life. This is the fear that anyone else in his position might reasonably experience. The fear of one’s life is a basic instinct. The fear was reasonable and founded on facts which were undisputed. A car was traveling directly for Constable Brown at high speed twenty feet away. He had no reason to be sure it would alter its course. He knew in fact that it was hotly pursued by the police after refusing to stop.

We therefore find that the discharge of Constable Brown’s revolver in these circumstances was in defence of his life.

82. This in essence, was the defence raised by Sergeant Wolfe.

83. How do these principles apply to the facts of this case?

84. The evidence before the Hearing Officer disclosed that Sergeant Wolfe is a highly experienced traffic officer. He was the senior police official on the road in Kawartha Lakes on the evening of February 15, 2003 when a high-speed chase was initiated by Constable Lewis in pursuit of a stolen vehicle. That car was being driven at high rates of speed in a dangerous manner.

85. Sergeant Wolfe very quickly took charge. He positioned his officers to intercept the fleeing vehicle and arranged for a spike belt. When the vehicle passed over that belt without apparent effect he took over the lead of the pursuit and rammed his heavier Crown Victoria into the Ford Contour causing it to stop.

86. Several officers converged on the vehicle on foot. Sergeant Wolfe was the only one to draw his service revolver when he exited his cruiser. Because of the location of different officers around the vehicle and the potential for injury in crossfire, Sergeant Wolfe moved to the front of the stolen vehicle. That put him in the car’s immediate path.

87. When the driver of the suspect vehicle turned to look him in the eye and spun his wheels Sergeant Wolfe raised his revolver and had a ‘sight picture’ of his head. There is no question in our mind given the rationale in Brown that Sergeant Wolfe would have been justified in firing at this point in time.

88. However, he did not. Rather, as the suspect vehicle moved forward, he stepped to one side and as it passed by, leaned in and fired two shots at the rear left tire. Given the fact that the stolen vehicle was passing Sergeant Wolfe the Hearing Officer did not accept as reasonable his explanation that he had an immediate fear for his life. Clearly, at that point in time the suspect vehicle was not a ‘weapon’ directed at him. On the evidence presented, we believe these were conclusions open to the Hearing Officer, an experienced police officer, to make.

89. As well, there was no evidence that when shots were fired that the suspect vehicle was being driven at any of the other officers on foot. Rather, it was leaving the scene. Indeed, Sergeant Wolfe returned to his cruiser, took the lead in the pursuit once again and rammed the suspect vehicle a second time driving it into a snow bank. This brought the pursuit to an end.

90. Given Sergeant Wolfe’s conduct during the course of the pursuit that evening, the Hearing Officer appears to have reached the conclusion that his actions demonstrated a deliberate, focused, organized and singular intention to stop the suspect vehicle. On the facts presented, we accept that this is a conclusion that can be reasonably supported.

91. Sergeant Wolfe was certainly entitled to direct that a spike belt be set and deployed and use intentional contact on two occasions to stop the suspect vehicle. However, he was not authorized to fire at a passing tire for the same purpose.

92. For these reasons, we would uphold the conviction. We would make one final observation. There is no doubt in our mind, having read the complete record of events, that Sergeant Wolfe is a well-respected conscientious platoon commander. With the exception of the use of his weapon, his conduct on February 15, 2003 was commendable, courageous and above approach.

93. This brings us to the question of penalty.

94. As noted earlier, the Hearing Officer imposed a forfeiture of twelve hours pursuant to section 68(1)(f) of the Act. In addition, he set the following conditions:

This means you [Sergeant Wolfe] will attend your office on either an annual leave day or rest day and work the prescribed hours until it is accomplished.

One month will be allocated to complete the disposition. You will advise Professional Standards Bureau when these hours have been accomplished.

95. Section 68(1)(f) of the Act authorizes a Hearing Officer to “direct that the police officer forfeit not more than 20 days or 160 hours off, as the case may be.” The section does not speak to the question of how such a penalty is to be satisfied.

96. This is in contrast with section 68(1)(e). It authorizes a Hearing Officer to “direct that the police officer forfeit not more than three days or 24 hours pay, as the case may be.” Section 68(4) goes on to state: “If a penalty is imposed under clause 1(e) … the … police officer … may elect to satisfy the penalty by working without pay or by applying the penalty to his or her vacation, overtime or sick leave credits or entitlements.”

97. Accordingly, the Act gives a police officer who receives a penalty of loss of twelve hours “pay” the right to chose how he or she wishes that penalty to be satisfied, but not a police officer who loses twelve hours “time off”. The latter is the situation here.

98. This would suggest to us that a Hearing Officer can direct that a forfeiture of time off be satisfied by working what would otherwise be time off. On this point we note that section 28(b) of the Interpretation Act R.S.O. 1990, c. 11 as amended states:

99. In every Act, unless the contrary intention appears …

(b) where power is given to a person, officer or functionary to do or to enforce the doing of an act or thing, all such powers shall be understood to be also given as a necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing;

99. We see no reason why this would not authorize a Hearing Officer to impose reasonable directions to ensure the proper enforcement of a penalty of forfeiture of time off.

100. However, this authority must be balanced with practical considerations. A Hearing Officer would normally not have any direct knowledge of an officer’s schedule, commitments or the operational requirements of the particular unit where that officer is employed. Accordingly, to our mind the question of the timing of the satisfaction of the penalty is a matter best left to the officer’s unit commander.

101. Further, we see no reason to require that the satisfaction of a particular penalty be personally reported by the officer in question to a unit (i.e. Professional Standards) where he or she is not employed.

102. Accordingly, we vary the penalty imposed by the Hearing Officer by deleting the requirement that: “One month will be allocated to complete the disposition. You will advise Professional Standards Bureau when these hours have been completed.”

DATED AT TORONTO THIS 16^TH^ DAY OF NOVEMBER 2005.

Murray W. Chitra Biagio (Bill) Marra Krishan D. Uppal

Chair, OCCPS Member, OCCPS Member, OCCPS