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GOING 10-7


September 24, 2014
By John Cameron

“2 Bravo 15 is 10-7.”

With those simple words the officers in Unit 2 Bravo 15 advise their radio dispatcher and other units that they are going out of service. The terminology may vary among agencies but the message is the same. Time to change and go home.

Officers likely don’t give any thought as to whether going off-duty changes their legal status from a peace officer to an ordinary citizen. Most would agree that there are a lot better things to do with valuable off-duty time than ponder esoteric questions.

A 1999 case transformed the question of whether off-duty police are officers or private citizens from an esoteric question into, quite literally, a million dollar question.

The case had all the elements of a Hollywood script: a bag with almost a million dollars in cash left inexplicably in a Vancouver park; a strange collection of characters claiming ownership, including a mysterious “Mister X”; a man inadvertently stumbling across the bag while out walking his dog Gus. The man just happened to be Cst. Mel Millas, an off-duty Vancouver police officer.

{Finders Keepers}

A number of legal issues arose after Millas called police and turned over the money. One of the most fundamental was whether Millas, as a finder of apparently lost or abandoned property, had any legal claim to it.

The well-known expression “finders keepers” is in many respects a fair reflection of the common law position in Canada and England on the rights of those who find lost property.

In the early case of a young chimney sweep found a diamond ring and gave it to a jeweller to appraise. The jeweller returned the ring without the stones and the boy sued for their return. The court held that the chimney sweep was entitled to the diamonds and could keep them against anyone except the rightful owner. The rationale from has been applied in several finder cases over the past three centuries.

If Millas was treated as an ordinary private citizen he would have a legal claim to the found money, assuming the true owner did not claim it. However, if Millas was treated as a police officer, he would be an agent of the Crown and the government would hold the money for the true owner or it would be forfeited to the Crown.

{Uncertainty in the Law}

Somewhat surprisingly, considerable uncertainty existed in law as to the legal status of police officers when off-duty. One viewpoint was that no distinction exists between on and off-duty status. As a result of the nature of the office of constable, a police officer is never off-duty.

An alternate view is that there is a valid distinction to be made. It is suggested that the proper approach is to generally treat off-duty officers as essentially private citizens and only on-duty under certain limited circumstances.

In British Columbia, support for a distinction between on and off-duty police officers exists in the following sources:

• Justice Wally Oppal’s report into BC policing;

• the Police Act;

• Police training and practices; and

• case law.

{Oppal Report}

The Honourable Justice Wally Oppal was appointed in June 1992 to conduct a commission of inquiry into BC policing. The terms of reference were expansive and included an extensive examination of the legislation governing police officers and policing.

Justice Oppal’s report suggested that police officers are to be treated as ordinary citizens with private lives during their time off-duty, except where their conduct would injure the reputation of the force. During their time off-duty they are entitled to the same activities as other private citizens.

For example, they may engage in political protest, operate a business, vote, run for political office, own property and sue and be sued in their own name as private citizens. If injured while off-duty they are not entitled to collect WCB or any other benefits which they would ordinarily receive if injured on-duty. If police officers are involved in a motor vehicle accident while off-duty, their police department has no vicarious liability.

{The Police Act}

As a result of Justice Oppal’s report, the Solicitor General made a number of substantial amendments to the Police Act in 1996, including, for the first time, expressly recognizing the distinction between on and off-duty status. The enacted under the provides for the circumstances in which off-duty police officers may be subject to discipline as a result of off-duty conduct:

{Disciplinary Defaults}

<4 (1). In this Code, “disciplinary default” means (a) discreditable conduct;

(b) neglect of duty;

(c) deceit;

(d) improper off-duty conduct.

{Improper off-duty conduct}

  1. For the purposes of section 4(l), a police officer commits the disciplinary default of improper off-duty conduct if:

(a) the police officer, while off-duty, asserts or purports to assert authority as a police officer and does an act that would constitute a disciplinary default if done while the police officer is on-duty, or

(b) the police officer, while off-duty, acts in manner that is likely to discredit the reputation of the municipal police department with which the police officer is employed.>

{BC police training}

Police officers spend the majority of their time off-duty. When not working, BC police departments do not expect their officers to continue the activities and duties of on-duty police officers. They are not expected to patrol their neighbourhoods, for example, or chase after and flag down speeding motorists.

The training at the Justice Institute of British Columbia emphasizes the difference between the expectations on officers when on and off-duty. Officers are instructed that when off-duty they are not expected to take any direct action in situations that they observe, which they would normally react to while on-duty. Of course many officers have chosen to take action when off-duty and their actions have often prevented perpetrators of crimes from escaping undetected.

It is stressed that in most instances officers would be without back-up and appropriate weapons with which to defend themselves. They are taught, however, that there are expected to act in some way, such as calling 9-1-1 and staying around to be a witness.

{Case Law”

Prior to Millas’ case, only a handful of cases had considered the off-duty status of police officers. In the case of an off-duty war reserve constable was injured on the way to work and claimed compensation for a “war service injury.”

Eligibility for compensation depended on whether the injury arose in the course of performance of duty. The constable argued that he should be entitled to benefits because a constable is effectively “on-duty at any time” and although he was outside his regular hours of duty, any accident must be treated as being in the performance of his duties.

The court rejected this position.

In other cases off-duty police officers were treated as though they were on-duty. These have generally fallen into two classes. The first class is where the officer, while off-duty, chooses to “put himself or herself on-duty” by acting in the capacity of a police officer after witnessing a crime in progress and taking action.

The second class is where officers, although off-duty, act in a manner likely to discredit the reputation of their police agency.

{Officers putting themselves on-duty}

The circumstance of an off-duty officer “putting himself on-duty” arose in the cases of <R. v. Johnston, (1966) 1 C.C.C. at 226 (Ont. C.A.), R. v. Crimeni ((1992)), 41 B.C. M.V.R. (2d). 2217 (Q.L.) 205 (B.C.S.C.) and Love v. Saanich (District) Workers Compensation Review Board (BC), 1 April, 1993. >

involved an off-duty police officer employed privately to direct traffic outside a business who observed several individuals causing a disturbance and chose to make an arrest. The court of appeal stated (at p. 226) that “a police officer is on-duty at all times and he is quite within his rights in making the arrest when he found it advisable and necessary to do so.”

Although the language in Johnson appears to suggest that police are always on-duty, it should be more properly seen as standing for no more than the proposition that police can put themselves on-duty by acting in the capacity of a police officer.

In the similar case of <Crimeni,> an off-duty BC municipal police officer observed what he believed to be an intoxicated driver operating a car. After following until the driver voluntarily stopped, he presented his police identification, requested the driver surrender his licence and registration, confiscated the driver’s car keys and directed a private citizen to contact the nearest police detachment.

Uniformed, on-duty police officers arrived, arrested the driver and subsequently charged him with impaired driving. The driver argued that his rights under the Charter had been violated as the off-duty officer failed to advise him of his Charter rights to counsel when he stopped him.

The court considered the issue of whether the officer, although off-duty, was a civilian or was acting within his police capacity when he detained the driver. After considering the applicable statutory provisions in force at the time (which did not include the since enacted off-duty provisions in The Police Act), it stated:

“(The statutes) do not suggest that one ceases to be a police officer merely because one is not acting within the confines of a working day.”

The court went on to emphasize the fact that although the officer was off-duty, he had acted in the capacity of a police officer and relied on his police authority:

As a consequence, the court held Tottenham was a police officer during the arrest of the driver and had violated his Charter rights by not giving the appropriate warnings.

The same reasoning was applied in the case of <R. v. Leontowich, 1999 BCPC 8 (CanLII)> where an off-duty police officer went to help a motorist outside a coffee shop, only to realize the driver was grossly impaired.

The court held:

In <Love,> an off-duty officer investigated a noise outside his home late in the evening and discovered someone attempting to remove a stereo from a car parked in his driveway. The person was casually dressed and armed only with a bamboo tomato stake. The police officer was injured in the course of apprehending the suspect, who was convicted of attempted theft and assault.

The officer claimed Workers’ Compensation benefits for his injuries, which he asserted occurred in the course of carrying out his duties as a police officer, although he was off-duty during the incident. The Workers’ Compensation Review Board concluded that the officer’s injuries arose “out of and in the course of his employment within the meaning of the term in the Workers Compensation Act.”

The board held that although police officers injured off-duty are not ordinarily entitled to WCB compensation, in this case the officer would be covered because “once he saw objective evidence of a crime in progress, his police officer role was engaged.”

In <Johnson, Crimeni, Leontowich and ‘Love’> off-duty officers were treated as being on-duty because they had effectively put themselves on-duty by acting in the capacity of a police officer.

{Discreditable off-duty conduct}

The issue of discreditable conduct by off-duty officers was considered by the Alberta Court of Queen’s Bench in A police officer was disciplined for conducting himself in a manner which would bring discredit upon the Edmonton Police Service. While responding to a domestic abuse call, he met the complainant, a young woman. Later, while off-duty, the officer invited her on a vacation to Illinois, during which he allegedly sexually harassed her.

The court decided that, when considering the offence of discreditable conduct, it would be inappropriate to distinguish between on and off-duty activity.

It is clear from that even off-duty police officers are accountable to a certain standard of behaviour 24 hours a day.

{The million dollar question}

The question of whether Millas was a police officer or citizen when he found the money was answered on December 20, 1999 when Judge Baird-Ellan heard the case

Counsel for Millas argued that he was off-duty when he found the money, that there was a difference between on and off-duty police officers and that neither of the two classes of cases which would justify treating Millas as an on-duty officer were relevant in this case.

It was submitted that, unlike the off-duty officers in <Johnston, Crimeni and Love>, Millas did not rely on his authority as a police officer in any fashion, or in any manner act in that capacity when he found the money. He wasn’t in the park in any official capacity. He wasn’t investigating any crime. He did not initiate an investigation into who owned the money.

It was also submitted that there was no legitimate reputation or discipline issue, as Millas’ behaviour had only improved the reputation of the force for integrity.

The court ruled that there was no legal bar to the money being returned to its finder.

On the issue of off-duty status of police officers in BC, Baird Ellan J. stated (at para. 7):

<(Counsel for Millas) has provided the relevant portions of the Oppal Report and an exhaustive review of cases dealing with the rights and duties of off-duty officers. These provisions and authorities all support the conclusion that while an off-duty officer may by his actions place himself on-duty and thereby attract the legal status that that entails, Millas wasn’t acting in an on-duty capacity at the time he found the money and therefore should be treated as any other member of the public.>

{Conclusion}

The decision lends additional support to the position that a valid legal distinction can be drawn between the duties and responsibilities of a police officer when on and off-duty.

In summary, a police officer going 10-7 will have essentially the same legal status as a private citizen with the following exceptions:

• Off-duty officers may place themselves on-duty by acting in the capacity of a police officer or relying on their authority as such. Off-duty officers who place themselves on-duty will have all the responsibilities of an on-duty officer, such as giving Charter warnings to arrested suspects.

• Off-duty conduct injurious to a force’s reputation can result in an officer being treated as, and disciplined as, a police officer regardless of when or where such conduct occurs.

• Off-duty officers may be called out for duty by their agency and will be treated as being on-duty.

Another case arose after the decision considering the status of an officer when not strictly “working.” In an injured motorist sued for damages after he was rear-ended by an unmarked RCMP vehicle.

The officer was en route to a personal appointment with his doctor for an annual medical check-up (not required by RCMP regulations) when the collision occurred. The unmarked vehicle was assigned to the officer because he had to be on call, via a pager, at all times.

The question was whether the officer “was engaged in the performance or intended performance of his duty at the time of the accident.” The RCMP argued that he was, submitting that regardless of specific duties, a police officer is on duty in a general sense 24 hours a day. In that regard, the defendants cited <s.18> of the which, in its germane part, reads:

<{Duties}

  1. It is the duty of members who are peace officers, subject to the orders of the Commissioner,
    (a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed and the apprehension of criminals and offenders and others who may be lawfully taken into custody.>

Counsel for the RCMP argued that, although the officer was going to a private medical appointment, he was still, like all police officers, on general duty 24 hours a day. Under this duty, he has an obligation to report any breach of the law he sees, prevent it and enforce the law.

The court in held that the officer wasn’t “in the execution” of his duties when driving to his private doctor appointment. As such he would be treated like any other person who rear-ended a vehicle and would be personally liable (although covered by insurance through the RCMP). The court stated:

<… (T)he law recognizes a distinction between a peace officer being “engaged in the execution of his duty” and simply being on duty, in the sense that he or she is “at work”. … Thus a police officer who is eating dinner while on duty is acting in the course of his duties, but that same officer could not then be said to be engaged in the execution of his duty.

(The officer here) was engaged in a personal errand in that he was going to see his doctor for his own private reasons for a medical check-up. In the result, he wasn’t engaged in the performance of his duty at the time of the accident within the meaning of section 21(2) of the Police Act.>

<<< Bio Box >>>

This article originally appeared in the August/September issue of and has been reviewed and update by the author.

A former police officer, John Cameron LL.B. is now a Vancouver trial and appeal lawyer who assists people injured through the negligence of others. He frequently acts for police officers injured in on and off duty car accidents. Contact him at john@cameronlaw.com or 604 681-8888 for more information.


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