Ontario Civilian Commission on Police Services
OCCPS #07-15
REASONS FOR DECISION
CONSTABLE MICHAEL BYRNE Appellant
ONTARIO PROVINCIAL POLICE Respondent
Presiding Members: Murray W. Chitra, Chair Garth Goodhew, Member
Appearances: Jonathan D. Cocker, Counsel for the Appellant Marnie Bacher and Jordana Joseph, Counsel for the Respondent
Hearing Dates: February 7, 2007 and May 24, 2007
This is an appeal from a conviction of one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at Ontario Regulation 123/98 as amended (the “Code”) by Superintendent Clifford J. Strachan (the "Hearing Officer”) on May 9, 2006.
Further, it is an appeal from the penalty imposed on June 19, 2006. On that date, the Hearing Officer directed that Constable Byrne “attend [his] … work location and work sixteen (16) hours without pay. The arrangements regarding when and the duty you will perform will be determined by your supervisor.”
As well, the Hearing Officer directed that Constable Byrne had “two months from today’s date to complete this penalty and your detachment commander will notify professional standards upon its completion.”
Background:
This is the second case before this Commission concerning Constable Michael Byrne and his off duty activities.
Constable Michael Byrne has been a member of the Ontario Provincial Police (“OPP”) for over nineteen years. In the spring of 2004 he was assigned to the Wellington County.
Constable Byrne also owned and operated a small landscaping business known as MLSP Enterprises. In April he was hired by Mr. Elmer Martin to assist him transporting goods. Mr. Martin is an old order Mennonite with a farm business. His faith does not permit him to own or operate a motor vehicle.
On the morning of April 12, 2004 Constable Byrne drove Mr. Martin in his Dodge one-ton diesel pick up truck to Brindley Auction in Dungannon, Ontario. When they arrived Mr. Martin obtained an auction number and made several purchases. These included a cultivator, a corn planter, six large tractor tires and various tools.
Mr. Martin paid for all of his purchases and several were loaded on Constable Byrne’s truck. However, not all would fit and so Constable Byrne agreed to return the following day for the balance.
On one of these two trips, Auction staff loaded a red wood splitter on Constable Byrne’s truck. It had been bought by Constable Byrne using an auction number. That number was similar to, but not identical to Mr. Martin’s. The purchase price of $500 was not paid prior to the splitter being removed from Brindley Auction.
On the morning of April 13th, while the second load of items purchased by Mr. Martin was being placed on his truck Constable Byrne had a conversation with Mr. Gordon Brindley, the owner of Brindley Auction. There is disagreement about portions of this discussion.
It would appear however, that at some point Mr. Brindley expressed concern about the safety of Constable Byrne’s truck with its large load and Constable Byrne mentioned his satisfaction with his purchase of a wood splitter. As well, Constable Byrne’s employment as a police officer became known to Mr. Brindley, either because it came up in conversation or was evident from OPP patches on Constable Byrne’s jacket. Before Constable Byrne drove away he gave Mr. Brindley his MSLP Enterprises business card.
Three or four weeks later Auction staff noticed that a wood splitter had been removed and was not paid for. This is contrary to the auction rules. After several phone calls to different individuals Mr. Brindley finally spoke to Mr. Martin who said: “Did that prick not pay for that wood splitter?” and then something to the effect that Constable Byrne had “done this before”. Mr. Martin provided Mr. Brindley with contact information for Constable Byrne.
Helen Brindley, Brindley Auction’s bookkeeper then set about trying to obtain payment from Constable Byrne. She sent him an invoice. She contacted him by phone on May 21, 2004 and he agreed to send a cheque. She sent him a second invoice that same day.
Payment was not received. A third invoice was sent on June 4th with additional service charges for a total due of $545.70. Payment was not received and a fourth invoice was mailed on July 23, 2004. Messages were left on Constable Byrne’s answering machine on June 24, July 12 and August 1, 2004. These calls were not returned.