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Staff Superintendent R. Kerr, Support Operations
Superintendent J. Hunter, Professional Standards
Staff Inspector N. Sweeney, Trial Preparation
Mr. R. Beauchesne, Legal Advisor, Legal Services
Mr. J. Wiley, Regional Director of Crown Attorneys
Conference Room 8B, 40 College Street & Legal Services Boardroom
Special meeting of the Committee were called to discuss the Junger/Whitehead review of disciplinary matters based on Mr. Hines's report and the investigation conducted by A/Staff Inspector S. Reesor.
ISSUES - JUNGER
Response: The allegations do not constitute, in our minds, the grounds to lay Police Act charges. It is our belief that all these matters were, in fact, being considered by the investigators with the intention of proceeding by way of Police Act charges, certainly Solicitation and the Misuse of C.P.I.C. Between the 5th of December, 1991, and the 19th of January, 1992 there had already been contact with the Trial Preparation Unit with a view to laying Police Act charges. The Committee agrees with the statement by Mr. Hines that:
"If it could be shown that S would never have pursued these matters or had no legitimate reason for the delay in initiating charges, discipline might be warranted. However, the evidence does not support this conclusion."
Response: (a) CPIC Regulations
The Committee adopted Mr. Hines: statement that:
"There is undoubtedly a constable's discretion as to whether or not to lay criminal charges in a given case. To succeed on this offence, one would have to show (a) that S had a positive "duty" to lay the charges, and (b) he had not "lawful excuse" for failing to do so."Shannon and Pilkington intended to deal with this CPIC misuse only under the provisions of the Police Act.
Mr. Brian Harvey, Senior Auditor with the Police Service Division of the Ministry of the Solicitor General, testified at the Inquiry that he was aware of only two cases in Ontario where criminal charges had been laid in relation to CPIC misuse. Both charges were laid against civilian employees. He was aware of other instances where disciplinary charges had been laid against police officers for CPIC misuse.
At the time of the Junger investigation it was accepted practice within the Force to proceed only by way of Police Act charges in cases of CPIC misuse.
Response: (b) Breach of Recognizance
The Committee adopted Mr. Hines's statement referred to in (a) above. On January 11, 1990, Langford attended Internal Affairs and brought with her a tape recorded conversation between her and Junger. Shannon and Pilkington were aware that technically Junger had breached his recognizance. However Langford admitted that she had initiated numerous communications with Junger since his arrest and had actually stayed with him overnight at his home in Oakville.
Given all the circumstances, Shannon and Pilkington did not view the complaints made by Langford in relation to Junger harassing her as being credible. In relation to these two criminal allegations, we do not believe that they had a positive duty to lay the charge and that they had lawful reasons for not doing so.
A review of the evidence does not support the necessity of an arrest being warranted.
There is evidence that Staff Inspector Hill was aware that consideration was being given to arrest Junger even though consultation with Detective Sergeant Shail had indicated no charge should be proceeded with. The evidence would indicate that it was an unnecessary arrest.
Response: There was a technical breach of this procedure. The disposition on a first offence would normally be resolved at the unit level.
Response: Prior to the sting operation, December 5, 1989, Langford had indicated to Shannon and Pilkington that she wanted Junger to stay away from her house and not communicate with her.
After Junger's arrest on the drug charge, Shannon told him that it was Langford's wish that he not return to her house.
Langford knew that Junger would be aware that she had supplied information because she would be required to testify against him.
Junger was released from custody on December 5, 1989, on his own recognizance with conditions that he not communicate with Langford or to go near her home.
It is reasonable to believe that the officers would have been unable to comply with Langford's wishes without disclosing to Junger that fact that she was co-operating with the investigators.
Response: While the officers did not intend to destroy the video referred to in paragraph six, Mr. Byers testified at the Inquiry that paragraph six of the agreement was included at Junger's request because Junger was concerned about adverse publicity and didn't want the video hanging around to be played 20 years from now.
As it relates to the destruction of the drugs, the officers were aware that the normal practice when drug charges are withdrawn is that the drugs are destroyed. Therefore, this provision did not create a conflict in their mind.
There is no indication in any of the evidence to suggest that Shannon and Pilkington were not intending to fully comply with the other paragraphs of the agreement to the best of their ability with the exception of paragraph six. In relation to paragraph six, the officers did not intend to destroy the video, but felt that holding it securely at I.A. would satisfy Junger's desire for no publicity.
Maher did not see the agreement or know of its contents until later in the day after it had already been signed.
(ii) THE RESIGNATION AGREEMENT
Response: Maher signed the request to withdraw the drug charge on the same day but after the agreement had been signed. It was his view that whether or not Internal Affairs proceeded against Junger on other matters he would still have recommended the withdrawal of the charge subject to Crown approval.
The evidence disclosed that Byers and Junger were aware of such proviso prior to signing the agreement.
Mr. Graham Reynolds, Supervisory Federal Prosecutor, sent a letter to Maher dated March 1, 1990, indicating that the decision to withdraw the drug charge was based on lack of evidence and that the Force's agreement with Junger was not a factor in the Justice Department's decision.
The withdrawal of the narcotics charge proposed in the resignation agreement was only to be complete subject to Crown approval. This was not a "trade" of a criminal charge but an acknowledgement that a weak charge, affected substantially by RL's change in testimony, would be withdrawn. Byers, Junger, Pilkington and Shannon fully expected it to be withdrawn, regardless of the terms of the resignation agreement.
Misuse of C.P.I.C - dealt with under section 2(a)
Intent to Destroy Evidence - dealt with under section 6(i)
(iii) THE RESIGNATION AGREEMENT
Response: In hindsight, it is agreed that the investigating officers were not as prudent as they should have been. However, there was no Force requirement on them, at the time, to have it viewed by legal counsel.
SUMMARYUpon review of the issures raised by Mr. Hines, the P.S.R.C., having reviewed the investigation of Acting Staff Inspector Reesor, finds that there are grounds for disciplinary action to be taken against the following officers:
Detective Sergeant James Shannon (1813)DISCIPLINARY FINDINGS:
Inspector Roy Pilkington (4583)DISCIPLINARY FINDINGS:
Superintendent Aidan Maher (1249)DISCIPLINARY FINDINGS:
Superintendent Edward Hill (979)DISCIPLINARY FINDINGS:
ISSUES - WHITEHEAD Re: CAISSEMr. John McMahon, acting for Mr. J. Wiley, advised that, due to the fact the complainant does not want to testify (which has been the situation since the onset and was communicated through the complainant's counsel only recently). it would not be in the complainant's interest to proceed criminally. Counsel feel to proceed criminally would only victimize her twice when there was no likelihood for a successful prosecution.
Response: The Committee adopted Mr. Hines's statement:
"Caisse had grounds to lay the following criminal charges;
The committee concurred with Mr. Hines's statement that the investigating officers had no positive duty to lay a charge. Given all the evidence, a charge of neglect of duty is not appropriate. This issue is unlikely to arise again in view of the fact the P.S.R.C. are reviewing such matters upon presentation of a proper Brief and consultation with the Regional Director of Crown Attorneys who is also a member of the P.S.R.C.
Response: Technically they should have released him at the scene but the circumstances mitigated the action that the officers took. We are in agreement with Hines that the officers had "good and sufficient cause."
Response: The officers did have a responsibility to put in a record of arrest.
Response: The Committee adopted Mr. Hines's statement that:
"Although the Panel was critical of this, there is no offence under the Police Act which has arguably been committed. Indeed, it could be argued that any such disclosure would constitute a breach of confidence (Code of Offences, section (e)) as well as a violation of the Freedom of Information Act. In any event, the Panel Report is somewhat misleading on this point in that the transcript summary indicates that the investigators were prepared to disclose W's identity to D's lawyer or a Justice of the Peace for the purpose of laying a private information."
ISSUES - WHITEHEAD Re: GRIFFITHS
Response: The Committee adopted part of Mr. Hines's statement:
"In fact, the "in-house" nature of these proceedings has been expressly recognized by the Supreme Court of Canada in the Wigglesworth case. Where a citizen wished greater input and control over the process, they have access to the Public Complaints Commission."
The practice to involve complainants in the disciplinary process has since been changed to ensure all witnesses are appraised of the fact that disciplinary charges have been laid and to keep them informed of the process by letter.
Response: Staff Inspector Griffiths acknowledged the fact that Caisse had given assurance that her anonymity would be protected and such failure to ensure that the hearing would be held in camera was an oversight on his part.
Response: The Committee acknowledged Mr. Hines's comment:
"In view of the foregoing, it will be necessary (and difficult) to establish that G's decision was so unreasonable as to constitute a disciplinary offence."
Response: The evidence disclosed that Federico did not observe any signs of impairment when W arrived at the location. There is evidence that W had a bottle of liquor in his possession when he left the vehicle and there is further evidence that the officers lost sight of W prior to him arriving in the apartment. (They would be unable to establish that, in fact, W was impaired prior to entering the apartment complex. He could have consumed the alcohol enroute to the complainant's apartment and after parking his vehicle. The results of the (illegible) test could not be used towards a charge of Care and Control but only towards W's ability to drive home.
SUMMARYUpon review of the issues raised by Mr. Hines, the P.S.R.C., having reviewed investigation of Acting Staff Inspector Reesor, finds that there are grounds for disciplinary action to be taken against the following officers:
Detective Sergeant Donald Caisse (1942)DISCIPLINARY FINDINGS:
Staff Inspector Alan Griffiths (1146)DISCIPLINARY FINDINGS:
Created: August 16, 1999|
Last modified: August 16, 1999
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