COURT FILE NO.: 602/04

DATE: 20070712

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J. MACDONALD, DAMBROT AND SWINTON JJ.

B E T W E E N:

SERGEANT RANDY BLAKELY

Appellant

• and -

FRED PARKER

Respondent

• and -

QUINTE WEST POLICE SERVICE

Respondent

Harry G. Black, Q.C., for the Appellant

Fred Parker, In Person

Christopher Diana, for the Respondent Ontario Provincial Police (successor to Quinte West Police Service)

HEARD at Toronto: July 12, 2007

dambrot J.: (Orally)

1This is an appeal from the decision of the Ontario Civilian Commission on Police Services, dated November 8, 2004, in which it set aside the penalty of reprimand imposed by a Hearing Officer and substituted a six month reduction in rank.

2Sergeant Randy Blakely of the former Quinte West Police Service was found guilty of neglect of duty contrary to s.74(1)(a) of the Police Services Act, R.S.O. 1990, c.P.15, by a Hearing Officer, for failing to provide Fred Parker with his right to retain and instruct counsel without delay under s.10(b) of the Charter for a period of approximately 90 minutes, and, as I have indicated, imposed a reprimand as the penalty.

3Mr. Parker was arrested for theft and possession of stolen property on Saturday, December 20, 1998 along with James Zebedee, a man with a long criminal record for offences involving violence. Mr. Zebedee was said to be a member of a group known as the Zebedee Crime Family. The members of this group were said to be dangerous criminals who were not afraid to confront and shoot at the police. The evidence led in support of this characterization was substantial and horrifying. As a result, Mr. Parker was held incommunicado for almost 28 hours after his arrest under the direction of Sgt. Blakely in order to prevent him from notifying others about the police investigation. Sgt. Blakely considered this to be necessary in the circumstances in order to protect the safety of officers who were conducting a raid on the Zebedee farm that day and to preserve evidence.

4The evidence led at the hearing concerning the search demonstrated that Sgt. Blakely’s fears were real. In particular, eighteen firearms were seized at the Zebedee farm, as well as a large quantity of stolen goods of a value between $250,000 and $300,000, a quantity of drugs and a police scanner. In addition, an apparent torture chamber was located in the barn.

5Sgt. Blakely’s decision to delay the exercise of Mr. Parker’s right to counsel was discussed with and approved by the Chief and Deputy Chief of the Quinte West Police Service. Sgt. Blakely instructed other officers that no one was to attempt to obtain a statement from Mr. Parker in the interim.

6The Hearing Officer concluded that Sgt. Blakely had an honest, good-faith belief that if he allowed Mr. Parker to call his lawyer during the search of the Zebedee farm, officer safety would have been at risk. As a result, to that point in time, s.10(b) of the Charter had not been violated.

7The Hearing Officer further concluded that by 3:15 p.m., on Sunday, December 21, 1998, Sgt. Blakely’s concerns about officer safety and the potential destruction of evidence had ceased, and Mr. Parker should have been permitted to exercise his s.10(b) rights. In fact, he was not permitted to call his lawyer until 5:05 p.m. As a result, she found that Sgt. Blakely had denied Mr. Parker his right to counsel during that approximately 90 minute period, and so was guilty of neglect of duty.

8As I have indicated, the Hearing Officer imposed a written reprimand as the penalty. In imposing this penalty, she took into account:

(i) the prosecutor’s recommendation that a reprimand be imposed;

(ii) Sgt. Blakely’s 23 years of service with an unblemished work history;

(iii) the opinion of Sgt. Blakely’s Chief that he was a dedicated hardworking officer and supervisor who performed all of his duties in an exemplary manner;

(iv) 23 letters of appreciation and 12 letters of reference from Crown Attorneys, Chiefs and Deputy Chiefs of Police, the President of the Quinte Criminal Lawyers Association and others;

(v) penalties imposed in other cases;

(vi) the emotional impact of the incident and the hearing on Sgt. Blakely and his family;

(vii) the impact of the offence on Mr. Parker; and

(viii) the seriousness of the offence.

9The Hearing Officer treated the seriousness of the offence as a fundamental consideration. She was alive to the significance of a violation of the right to counsel. She recognized that the penalty had to address the impact of the offence on public confidence in the police force. She emphasized the impact of the offence on Mr. Parker. As a result, she recognized that the penalty had to emphasize specific and general deterrence. She thought that the seriousness of the offence was mitigated, however, by Sgt. Blakely’s order to all police personnel that Mr. Parker not be interviewed until he was given his right to counsel, and by his good faith. She took into account that this was Sgt. Blakely’s first formal discipline offence. She also noted that a penalty involving a demotion in rank would be severe and would ignore the principle of progressive discipline.

10Both Sgt. Blakely and Mr. Parker appealed the finding of misconduct to the Ontario Civilian Commission on Police Services pursuant to s.70(1) of the Police Services Act, and Mr. Parker also appealed the penalty. The Commission dismissed the appeals from the finding of misconduct, but allowed the appeal of the penalty, and substituted a reduction in rank for a period of six months for the reprimand.

11Sgt. Blakely appeals to this Court, pursuant to s.71(1) of the Police Services Act, from the decision to substitute a penalty of reduction in rank for the penalty of reprimand imposed by the hearing officer.

12The reasons given by the Commission for varying the penalty were very brief. The Commission concluded that the penalty of reprimand was inadequate, and not proportional to the offence of violating Mr. Parker’s rights under s.10(b) of the Charter. In particular, the Commission stated:

“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."

13The Commission further stated:

“Not only must Sergeant Blakely understand the seriousness of a denial of the section 10(b) right of a 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.”

14Disciplinary proceedings in the police context have been characterized as quasi-criminal in nature. (See Re Gloucester Police Force and Tremblay (1983), 1983 1736 (ON SC), 42 O.R. (2d) 395 (Div. Ct.)). As a result, when it comes to the imposition of penalty, while the proceedings remain concerned with discipline, Hearing Officers, the Commission and the Courts have applied principles akin to the principles of sentencing. In this case, both the Hearing Officer and the Commission approach the question of penalty in this way.

15This Court can interfere with the conclusion of the Commission only if its decision was unreasonable. This requires the Court to determine if the Commission properly considered all relevant factors in determining the appropriate penalty, including the opinion and reasons of the Hearing Officer. (See Ontario Provincial Police v. Favretto (2004), 2004 34173 (ON CA), 72 O.R. (3d) 681 (C.A.) at paragraph 50). The task of this Court is to enter into a “somewhat probing examination” to determine whether the Commission’s reasons “taken as a whole are tenable as support for the decision,” as directed by the Supreme Court of Canada in Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003] 1 S.C.R. 247.

16Turning then to the merits of this appeal, I observe first of all that the reasons for penalty of the Hearing Officer reflect a thoughtful and logical analysis, taking into account the relevant principles of sentencing and the factors that aggravate and mitigate the offence. In particular, I note that she was alive to the need to emphasize both specific and general deterrence, and concluded that a reprimand was not a trivial penalty, and was adequate to the task.

17On the other hand, the Commission’s reasons do not reflect a similarly nuanced approach. I can only interpret the Commission’s brief reasons to mean that in the Commission’s view, the need to discourage “arbitrary” violations of the right to counsel cannot be accomplished by the imposition of a reprimand, and that to impose a reprimand is an error in principle. This emphasis on deterrence by the Commission would clearly trump other penalty considerations.

18Unlike the Commission, I find no error in principle in the Hearing Officer’s approach to the imposition of penalty, or in the penalty that she imposed, but I see at least three errors in the approach taken by the Commission which render its decision unreasonable.

19First, in its reasons, the Commission’s comments were concerned with the appropriateness of a penalty of reprimand for an arbitrary violation of s.10(b) of the Charter. But the Hearing Officer found, to the contrary, that the denial of the right to counsel in this case was done in good faith, and was lawful, except that it continued after the justification disappeared. The Commission did not interfere with this finding. However one characterizes the failure of Sgt. Blakely to terminate the restraint in Mr. Parker’s communication in a timely way, in no sense was any of his conduct arbitrary. It was for the most part deliberate, done in good faith, lawful, and ensured that no advantage was taken by the police of the deferral of the right to counsel. The Commission erred in approaching this case as if the offence was committed arbitrarily.

20Second, the Commission erred in principle in determining the appropriate sentence solely on the basis of the nature of the offence committed by the appellant. Sentencing is an individualized exercise. The determination of a fit sentence must include a consideration of all the surrounding circumstances, including the circumstances not only of the offence, but also of the offender. In this case, there were a number of mitigating circumstances that were taken into account by the Hearing Officer, but were ignored by the Commission.

21Third, the Commission erred in principle in concluding that, despite the fact that a penalty of reprimand is lawfully available for this offence, its imposition simply cannot accomplish the proper goals of sentencing, and so reflects an error in principle. It may be that because of the seriousness of a breach of s.10(b) of the Charter, a reprimand should be imposed only rarely. But it is wrong to conclude, as did the Commission, that it is simply unavailable as punishment for a breach of the right to retain and instruct counsel without delay.

22As is plain from what I have already said, the Commission did not properly consider all relevant factors in determining the appropriate penalty. In my view, in this case, it was unreasonable for the Commission to conclude that the Hearing Officer erred in imposing a reprimand.

23As a result, the appeal is allowed, the penalty of a six month reduction in rank is set aside and the reprimand imposed by the Hearing Officer is restored.

J. MACDONALD J.

24I endorse the Motion Record as follows: “This appeal is allowed for oral reasons delivered in Court; the penalty of six month reduction in rank imposed by the Commission is set aside, and the penalty of reprimand imposed by the Hearing Officer is restored. The O.P.P. seeks a declaration that it has authority to implement the penalty. It seeks this declaration in advance of any attempt to impose the penalty. This Court was constituted to hear the appeal from the Commission under s.71(1) of the Police Services Act. The relief sought by the O.P.P. is premature, and we have no jurisdiction to grant it. No costs.”

DAMBROT J.

J. MACDONALD J.

SWINTON J.

Date of Reasons for Judgment: July 12, 2007

Date of Release: August 15, 2007

COURT FILE NO.: 602/04

DATE: 20070712

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT