ONTARIO CIVILIAN POLICE COMMISSION

DATE: 2015-04-09

FILE: 2015 ONCPC 09

CASE NAME: Gauthier (Re)

IN THE MATTER OF A HEARING UNDER S. 25 OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, as amended, INTO THE CONDUCT OF John Gauthier, chief of the timmins police service

DECISION AND ORDER

Panel

David C. Gavsie, Associate Chair Zahra Dhanani, Member

Hearing Date:

October 30 and December 4, 2014 February 5 (Motion) and March 30, 2015

Hearing Locations:

Toronto and Timmins, ON

Appearances

Victoria Kondo and Erin Rizok for the Commission Ian Johnstone and Alex Sinclair for Chief Gauthier

Introduction

1. A hearing by the Ontario Civilian Police Commission (the “Commission”) was held on several dates with regard to the conduct of Chief John Gauthier (also the “Chief”) of the Timmins Police Service (the “Service”).

2. The hearing resulted from an investigation by the Commission on its own motion to inquire into and report on such conduct pursuant to the s. 25(1) of the Police Services Act, as amended (the “Act”).

3. The Notice of Hearing (Ex. 1) dated September 3, 2014 contained the following allegation:

It is alleged that Chief Gauthier acted in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Service, and did thereby engage in Discreditable Conduct pursuant to section 2(1)(a)(xi) of the Code of Conduct contained in the Schedule to Ontario Regulation 268/10, as amended, and did thereby commit misconduct pursuant to section 30(1) of the Regulation and section 80(1)(a) of the Act.

4. At the hearing on March 30, 2015, counsel for the Parties indicated to the Panel that if the allegation in the Notice of Hearing was amended, a plea of guilty would be entered by the Chief. After a short adjournment, an amended Notice of Hearing was placed into evidence (Ex. 5). The allegation set out in para. 3 above now reads:

It is alleged that Chief Gauthier acted in a manner likely to bring discredit upon the reputation of the Service, and did thereby engage in Discreditable Conduct pursuant to section 2(1)(a)(xi) of the Code of Conduct contained in the Schedule to Ontario Regulation 268/10, as amended, and did thereby commit misconduct pursuant to section 30(1) of the Regulation and section 80(1)(a) of the Act.

5. Chief Gauthier was then asked how he pleaded to the amended Notice of Hearing. He pled “guilty.”

6. An Agreed Statement of Facts (“ASF”) (Ex. 6) was read into the record by Ms. Kondo.* In para. 20 of the ASF, there is reference to a standing order of the Service issued by former Chief Lavoie in January, 2001. A copy of that standing order – R001-2001 dated January 31, 2001 was placed into evidence (Ex. 7). The reference line reads: “Re: Cancellation or Withdrawal of Provincial Offence & Municipal Parking Tickets.”

7. Counsel for the Parties also submitted a Joint Email Brief (Ex. 8) containing e-mails referred to in the ASF.

Decision

8. Based on Chief Gauthier’s guilty plea and the evidence placed before it, the Panel finds Chief Gauthier guilty of the allegation stated in the amended Notice of Hearing (para. 4 above).

Order

9. After discussion between counsel for the Parties and the Panel, it was decided to adjourn to give time for counsel to prepare their submissions as to penalty against Chief Gauthier.

10. The Panel ORDERED the following:

a) The hearing will re-commence on June 11 and 12, 2015 in Timmins for the purpose of hearing evidence and submissions regarding penalty;

b) the Commission shall file and serve on or before May 1, 2015 a list of witnesses it intends to call, if any, a will-say statement for each witness, a copy of any documents it intends to introduce into evidence, and a book of authorities it intends to rely upon;

c) Chief Gauthier shall file and serve the same material on or before May 15, 2015; and

d) the Parties shall provide the Panel with their book of authorities.

DATED AT TORONTO THIS 9th DAY OF APRIL, 2015

[Original signed by]

David C. Gavsie Associate Chair, OCPC

Zahra Dhanani, Member, OCPC

Schedule “A”

Agreed Statement of Facts

1. On May 19, 2013, Timmins city councillor, Gary Scripnick, was stopped at a red light at the intersection of Lafleur Drive and Shirley Street in Timmins, Ontario. He was going northbound on Shirley Street. Mr. Scripnick had previously complained that this light malfunctioned and did not change from red to green when oncoming traffic approached. These complaints were made in city council meetings on October 17, 2011, September 10, 2012 and June 24, 2013, to the City Engineer and reported in an article in the Timmins Daily Press on October 17, 2011.

2. Constable Kevin Clement of the Timmins Police Service (“TPS”) pulled up behind Mr. Scripnick at the red light. Mr. Scripnick exited his truck and approached Cst. Clement’s window to ask him for assistance with the malfunctioning light. Cst. Clement did not recognize Mr. Scripnick as a city councillor and was not aware that the light had malfunctioned in the past. Cst. Clement told Mr. Scripnick that he would have to complain to city council or the city’s engineering department. Mr. Scripnick was frustrated and told Cst. Clement that he was going to go through the red light. Cst. Clement did not tell Mr. Scripnick not to proceed through the red light.

3. Mr. Scripnick returned to his truck, waited for three cars turning left from Lafleur Drive onto Shirley Street and drove through the red light. Cst. Clement activated his emergency lights, followed Mr. Scripnick through the intersection and pulled him over. Both Cst. Clement and Mr. Scripnick exited their vehicles.

4. Mr. Scripnick told Cst. Clement that he was a city councillor and told Cst. Clement to call his supervisor. Cst. Clement described Mr. Scripnick as agitated. The insurance that Mr. Scripnick gave to Cst. Clement was expired. Mr. Scripnick explained that his house was approximately 150 meters away from the location he had been pulled over and that, if allowed to proceed to his home, he could produce a valid insurance card immediately.

5. Cst. Clement returned to his car and announced the traffic stop over the radio. While he was in his car, he had a call on his personal cellphone with Cst. Matthew Beerman who advised him that he had recently issued Mr. Scripnick a ticket for a red light infraction and given him a warning for not having a valid insurance slip in his vehicle.

6. Cst. Clement also called his supervisor, Staff Sargeant Danny Charest, who advised Cst. Clement that he was not aware of any problems with the lights at the intersection of Lafleur Drive and Shirley Street and that Mr. Scripnick was not exempt from the Highway Traffic Act as a city councillor. Cst. Clement advised S/Sgt. Charest that he thought Mr. Scripnick was going to lodge a complaint about him.

7. Cst. Clement exercised his discretion to issue two Certificates of Offence, also know as, Provincial Offence Notices (“PONs”) to Mr. Scripnick for going through a red light and for failure to produce valid insurance. Cst. Clement returned to Mr. Scripnick’s truck to serve him with the tickets. Mr. Scripnick recorded this particular conversation and advised Cst. Clement he was doing the same. Cst. Clement also advised that the conversation was being recorded. The interaction was recorded by the in dash-camera in Cst. Clement’s patrol car, but the audio was not turned on.

8. Following the traffic stop, Cst. Clement observed the lights at Lafleur Drive and Shirley Street to assess whether they were malfunctioning. He did not observe any problems for approximately 16 minutes. He also emailed S/Sgt. Charest and Sergeant Chypyha describing the traffic stop and asked them to forward his email to Chief Gauthier. He placed his copy of the PONs in the locked box for PONs in the traffic department.

9. Following the traffic stop, Mr. Scripnick sent Chief Gauthier and the mayor of Timmins, Tom Laughren, multiple emails about the traffic stop including his audio recording of his conversation with Cst. Clement. Mr. Scripnick did not like the manner in which Cst. Clement spoke to him and wanted Chief Gauthier to be aware of how he was treated. Mayor Laughren forwarded the emails he received to Chief Gauthier.

10. Chief Gauthier was away for the May long weekend. Upon Chief Gauthier’s return from his vacation, he responded to Mayor Laughren’s email. Chief Gauthier went to Mr. Scripnick’s home on Monday, May 20, 2013. Chief Gauthier and Mr. Scripnick went to the intersection and drove through it at least three times. The lights were functioning properly each time. Mr. Scripnick told Chief Gauthier that there are times when the lights do not function properly.

11. Chief Gauthier and Mr. Scripnick returned to Mr. Scripnick’s residence on the statutory holiday. The Chief was in plain clothes and driving his police car, which is unmarked. The Chief and Mr. Scripnick met for approximately 30 minutes.

12. Following his meeting with Mr. Scripnick, Chief Gauthier emailed Cst. Clement. He reiterated that Mr. Scripnick has had an issue with the lights at the intersection for quite some time and brought it up at council meetings in the past. Chief Gauthier stated that Mr. Scripnick “acknowledges that he should have been more patient, that he did go through the red light, and that he should have waited for you to tell him to go through”. He also requested that Cst. Clement not to process the PONs. If Cst. Clement still had the PONs, Chief Gauthier asked that he place them in an envelope for him. If they were already in the locked box, he advised he could have them removed. Cst. Clement advised S/Sgt. Charest of this email.

13. Chief Gauthier did not speak to Cst. Clement about the traffic stop or hear Cst. Clement’s version of events from him directly.

14. S/Sgt. Charest emailed Chief Gauthier, forwarding a copy of Cst. Clement’s email from the previous day describing the traffic stop. In his email, S/Sgt. Charest agreed with Cst. Clement’s decision to issue the PONs to Mr. Scripnick. S/Sgt. Charest also stated that he did not disagree with Cst. Clement’s frustration that Chief Gauthier decided to cancel the PONs without talking to Cst. Clement.

15. After meeting with Mr. Scripnick, Chief Gauthier decided to cancel the PONs. In deciding to cancel the PONs, Chief Gauthier listened to Mr. Scripnick’s account and his audio recordings. He did not have any discussion with Cst. Clement or S/Sgt. Charest, he did not view the in dash camera recording and he did not know about the recent ticket for a red light infraction and warning for not having a valid insurance slip.

16. In a responding email to S/Sgt. Charest, Chief Gauthier stated that he did not disagree with S/Sgt. Charest, that Cst. Clement did the right thing and that he was “proud of the way he handled it”. However, Chief Gauthier remained uncomfortable with Cst. Clement’s exercise of discretion in the circumstances, particularly the Chief’s knowledge of the outstanding issues with the traffic light at Shirley Street and Lafleur Drive. Further, the Chief was not comfortable with Cst. Clement’s failure to instruct Mr. Scripnick not to proceed through the red light and his subsequent decision to issue the insurance ticket, less than 150 meters from Mr. Scripnick’s home.

17. As Cst. Clement had already put the PONs in the locked box, S/Sgt. Charest removed them from the locked box and gave them to Chief Gauthier. Chief Gauthier took the PONs to his home. The PONs were never processed. Mr. Scripnick did not have to pay the $390.00 associated fines or attend court to dispute the PONs. Chief Gauthier advised Mr. Scripnick that the PONs had been taken care of.

18. At no time did Mr. Scripnick or Mayor Laughren ask Chief Gauthier to cancel the PONs.

19. Investigations into the Chief’s actions conducted by the Ontario Provincial Police (OPP) and by the Ontario Civilian Police Commission (OCPC) did not uncover any standing order or other policies of the Timmins Police Service that the Chief’s actions may have violated.

20. In preparing his defence, Chief Gauthier came across a standing order issued by former Chief Lavoie in January of 2001. This standing order states provincial offence tickets are not to be cancelled, but may be withdrawn through the Court Officer with the approval of the Traffic Sergeant or higher authority. The standing order states that there must be a valid reason for asking for the withdrawal and that withdrawal can only be done through a request to the court and proper documentation.

21. The Chief was not aware of the standing order at the time of making his decision to cancel the PONs. However, he acknowledges that his actions in cancelling the PONs were not consistent with this standing order because he did not follow the outlined process for withdrawing a ticket.

22. The investigations surrounding the cancellation of the PONs have been reported in the media.

23. The Chief admits that his actions in cancelling the PONs, in the circumstances set out in this Agreed Statement of Facts, constitutes discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct because his actions were likely to bring discredit upon the reputation of the Timmins Police Service.

• a copy of the ASF is appended hereto as Schedule “A”```