Hay v. Ontario Provincial Police, 2012 HRTO 2316

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lawrence William Hay

Applicant

-and-

Ontario Provincial Police, Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Her Majesty the Queen in Right of Ontario as represented by the Attorney General and Julian Fantino

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: December 10, 2012

Citation: 2012 HRTO 2316

Indexed as: Hay v. Ontario Provincial Police

APPEARANCES

Lawrence Hay, Applicant

Peter Rosenthal, Amanda Driscoll and Darcy Belise, Counsel

Ontario Provincial Police, Ministry of Attorney General, Ministry of Community Safety and Correctional Services and Julian Fantino, Respondents

Christopher Diana and Samantha Orr, Counsel

INTRODUCTION

1This Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), concerns the suspension and termination of the applicant's appointment as a First Nations Constable after he made comments to the press that the OPP, RCMP and SQ ("Sureté du Québec") are racist organizations. The applicant alleges that his race, ancestry and ethnic origin were factors in the decisions to suspend and ultimately terminate his appointment and therefore a violation of s. 5 of the Code, and that the termination was an act of reprisal contrary to s. 8 of the Code. He alleges that the exclusion of First Nations Constables from the Police Services Act, R.S.O. 1990, c. P.15, as amended (the "PSA"), is discriminatory contrary to s. 5 of the Code.

2The hearing of the Application was bifurcated. This Decision addresses the question of whether the applicant's rights were infringed under the Code.

BACKGROUND FACTS

The Applicant

3The applicant, Lawrence Hay, was born into the Wahta Mohawk Nation, and later became a member of the Mohawks of the Bay of Quinte. He identifies as Kaienke'haka.

4The applicant commenced basic training with the RCMP in Regina, Saskatchewan in January 1979. From July 1979 to 1982, he was posted to the RCMP's North Vancouver (Lower Mainland) Detachment.

5In 1982, the applicant was transferred to the Niagara Detachment of the RCMP. In 1992, he received the designation of Aboriginal Liaison Officer. The applicant remained with the Niagara Detachment of the RCMP for 15 to 18 years.

6The applicant left the RCMP in 1998 to become a First Nations Constable and Chief of Police of the Tyendinaga Mohawk Police Service ("TMPS"). The TMPS is a First Nations police service located on the Tyendinaga First Nation reserve, also known as the Mohawks of the Bay of Quinte. The TMPS has five First Nations Constables, one detective constable, one chief of police and one administrative assistant.

7The applicant was interviewed for the position of First Nations Constable/Chief of Police by the Council of the Tyendinaga First Nation (the "Council"). Chief R. Donald Maracle is the Chief of the Tyendinaga First Nation. The Ontario Provincial Police (the "OPP") was not involved in the hiring process.

8Although interviewed for the position by Council, the applicant's appointment as a First Nations Constable was by the Commissioner of the OPP. The appointment was for the purpose of "performing law enforcement functions in Ontario while acting as a First Nations Constable pursuant to First Nations Policing Agreements administered by the Ontario Provincial Police and the First Nations Governments or their respective Police Governing Authorities". The applicant's appointment expressly stated it was valid until he was no longer employed by the Tyendinaga First Nation.

First Nations Policing in Ontario

9The TMPS is a First Nations police service that is governed by the Ontario First Nations Policing Agreement (the "OFNPA"), a tripartite agreement between the federal government, the province of Ontario and First Nations communities. Under the agreement, funding for First Nations Policing is provided by the federal and Ontario governments. The Aboriginal Policing Bureau of the OPP administers the funding under the OFNPA. The original term of the OFNPA was from 1991 to 1996, but has been extended by amending agreements. The OFNPA was in effect in 2007 and 2008, the relevant time period in the Application.

10The Preamble of the OFNPA describes the desire of the parties to provide a secure basis for the creation or continued development on First Nations territories of First Nations Police Services controlled by First Nations police governing authorities or such other police services as are desired by First Nations Governments.

11As set out in paragraph 2 of the OFNPA, the primary goal of First Nations policing arrangements in Ontario is for the First Nations, with the financial support of Canada and Ontario, to provide effective and efficient policing services which are culturally sensitive and appropriate for First Nations communities. This includes First Nations members providing policing services and serving on police governing authorities responsible for providing such services.

12The primary objective of First Nations policing arrangements under paragraph 3 of the OFNPA is to provide a level and standard of police services at least equivalent to that provided in non-First Nations communities.

13The OFNPA gives First Nations Governments the right to choose the type of First Nations policing arrangements to be implemented on their territories under paragraph 4 of the agreement. These options include one or more of the following structures:

a. A First Nations police service controlled by a First Nations police authority operating on First Nations Territory.

b. A First Nations regional police service controlled by a First Nations police governing authority operating on a group of First Nations Territories.

c. One First Nations police service supplemented by another First Nations police service.

d. A First Nations police service supplemented by a municipal or regional police service or the OPP.

e. A First Nations Territory policed by a municipal or regional police service or the OPP.

14The TMPS is a police service supplemented by the OPP as described in paragraph 4(a)(iv) of the OFNPA:

4(a) A First Nations Government or group of First Nations Governments may, by negotiated agreement with Canada and Ontario, choose the type of First Nations policing arrangements to be implemented on its territory, which may consist of, but not be limited to, one or more of the following examples:

(iv) by agreement with the municipal or regional police service involved or with the O.P.P., a First Nations police service supplemented by a municipal or regional police service or the O.P.P. in a manner not inconsistent with the Police Services Act of Ontario e.g. it is intended that First Nations should have the option of policing with First Nations Constables supported by a municipal or regional police service or by the O.P.P.

15The federal First Nations Policing Policy ("FNPP") affirms the importance of providing First Nations communities with control over their own police services and links First Nations police services as a way to support First Nations self-government. When describing its objectives, the FNPP states:

Increasing Responsibility and Accountability: To support First Nations in acquiring the tools to become self-sufficient and self-governing through the establishment of structures for the management, administration and accountability of First Nations police services...

16The OFNPA has acted as a transition to Self-Administered ("SA") First Nations police services. As the large regional SA services came into being, the First Nations communities and officers under the OFNPA shrunk. At the present time, only 19 First Nations communities remain under the OFNPA (Don Clairmont, Aboriginal Policing in Canada: An Overview of Developments in First Nations, September 2006).

17Paragraph 21(a) of the OFNPA requires SA First Nations police services to develop procedures for dealing with complaints against and the discipline of First Nations Constables. It states:

The police governing authority referred to in sub-paragraph 4(a)(i) or 4(a)(ii) shall forthwith develop procedures for dealing with complaints against, and the discipline of, First Nations Constables and consult with the Commissioner thereon prior to making any final decision. Unless the parties to the arrangements agree otherwise, such procedures for discipline and complaints shall not be inconsistent with the principles set out in the Police Services Act of Ontario and the regulations made thereunder.

18Paragraph 21(b) of the OFNPA requires First Nations Governments to develop similar disciplinary procedures when their police services are supplemented by the OPP or another municipal or regional force. It reads:

A First Nations Government or group of First Nations Governments choosing a police service referred to in subparagraphs 4(a)(iii), 4(a)(iv) or 4(a)(v) shall develop procedures referred in subparagraph 21(a) by agreement with the police service it chooses to police that First Nations Territory.

19Council did not develop a complaints process for dealing with complaints against and the discipline of TMPS officers as required under paragraph 21(b) of the OFNPA.

20The OFNPA provides that where a First Nations Police Service is supplemented by the OPP, the First Nations Government is the employer of the First Nations Constables and civilian staff. Paragraph 33(c) of the OFNPA states:

In arrangements referred to in sub-paragraphs 4(a)(iii) or 4(a)(iv), the First Nations Government shall be the employer of the First Nations Constables and civilian staff and the Commissioner or relevant Chief of Police shall administer First Nations policing arrangements jointly with the First Nations Governments concerned.

21Under the OFNPA, First Nations Constables are selected for appointment by their own communities. Section 54 of the PSA authorizes the Commissioner of the OPP to appoint First Nations Constables. The appointment by the Commissioner requires the approval of the band council. The power to appoint a First Nations officer also includes the power to suspend or terminate the officer's appointment. Section 54 of the PSA states:

54(1) With the Commission's approval, the Commissioner may appoint a First Nations Constable to perform specified duties.

(2) If the specified duties of a First Nations Constable relate to a reserve as defined in the Indian Act (Canada), the appointment also requires the approval of the reserve's police governing authority or band council.

(3) The appointment of a First Nations Constable confers on him or her the powers of a police officer for the purpose of carrying out his or her specified duties.

(4) The Commissioner shall not suspend or terminate the appointment of a First Nations Constable whose specified duties relate to a reserve without first consulting with the police governing authority or band council that approved the appointment.

(5) The power to appoint a First Nations Constable includes the power to suspend or terminate the appointment, but if the Commissioner suspends or terminates an appointment, written notice shall promptly be given to the Commission.

(6) The Commission also has the power to suspend or terminate the appointment of a First Nations Constable.

(7) Before a First Nations Constable's appointment is terminated, he or she shall be given reasonable information with respect to the reasons for the termination and an opportunity to reply, orally or in writing as the Commissioner or Commission, as the case may be, may determine.

(8) A person appointed to be a First Nations Constable shall, before entering on the duties of his or her office, take oaths or affirmations of office and secrecy in the prescribed form.

22Under the OFNPA, the Commissioner of the OPP shall not withdraw a First Nations Constable's status without first consulting with the body that identified the constable for appointment. Paragraph 8 of the OFNPA states:

First Nations Constables shall be identified by their own communities under procedures approved by the relevant police governing authority or, where no police governing authority has been created, under procedures established by the relevant First Nations Government. The Commissioner may then appoint any person so identified as a First Nations Constable under the Police Services Act of Ontario and shall not withdraw such status without first consulting with the body that identified a First Nations Constable for appointment.

Occupation of the Culbertson Tract Quarry

23The Culbertson Tract is a piece of land encompassing part of the Town of Deseronto. A gravel quarry (the "Quarry") is located on the Culbertson Tract. A land claim was submitted to the federal government by the Mohawks of the Bay of Quinte for the Culbertson Tract. The Quarry is not located on the Tyendinaga reserve.

24In January 2007, there was a one-day protest at the Quarry to raise awareness regarding the removal of stone from the Quarry. In February 2007, the applicant advised the detachment commander of the OPP Napanee Detachment, Ron Van Straalen, that an occupation of the Quarry was anticipated. The applicant and Van Straalen agreed TMPS would be the frontline of policing the occupation. The occupation of the Quarry commenced on March 22, 2007.

25On April 17, 2007, the applicant was advised by Superintendent Blair, the administrator of the OPP's First Nations Policing Program (now Chief Superintendent Blair) that the TMPS would no longer be compensated by the OPP for overtime when policing the occupation and that he required an exit strategy from the site.

26During the morning of April 18, 2007, the applicant wrote to Commissioner Fantino complaining about the current working conditions at the Quarry and the lack of equipment available to the TMPS at the Quarry.

27During the afternoon of April 18, 2007, the applicant was advised by Chantal Bernier, the Assistant Deputy Minister of the federal Aboriginal Policing Directorate, that there was no legal authority to fund a police intervention outside of a reserve.

28On April 20, 2007, Superintendent Blair was advised by the federal Aboriginal Policing Directorate, Public Safety Canada and the Ontario Ministry of Community Safety and Correctional Services that under the FNPP, the federal and provincial governments had no legal authority to fund any intervention by First Nations police services outside of "First Nations territory" as defined under the Indian Act. Superintendent Blair was advised that because the Quarry was located outside of First Nations territory, federal and provincial funding provided under the FNPP could not be used to pay for the continued presence of the TMPS at the site.

Comments to the Press

29On April 11 or 12, 2007, the applicant was interviewed by student journalist Christopher Clarke and made the following comments:

I left the RCMP after Oka and I realized just what a racist organization the RCMP was, and I came here to learn that the OPP and the SQ (Surete de Quebec) are no different. It's deep-seated racism, and they will do all kinds of things to show that it isn't so, but we know better. Our so called partners in policing are simply out to undermine us and to discredit us..... We asked them to help us out with a porta-potty so our officers wouldn't have to hide behind the cruiser when they relieved themselves, and the bottom line to that was, if its not OPP pee, forget it...They (OPP) want to at least create the impression, to satisfy the Canadian taxpayer, that the police have the situation under control, when in fact, if they were here, it would be nothing but an escalation of violence.

30The comments were published in Online Pioneer, a Loyalist College publication, on April 14, 2007. The applicant advised Chief Maracle about the comments shortly after he made them. Chief Maracle suggested to the applicant that he recant the comments and apologize so as to not jeopardize his policing career.

Suspension

31The following chronology is taken from the correspondence that was created at the time of the events under review. In my view, the correspondence accurately reflects the positions taken by the parties at that time.

32On April 18, 2007, Julian Fantino, who was then the Commissioner of the OPP, suspended the applicant's appointment as a First Nations Constable under s. 54(5) of the PSA. The applicant was advised by Commissioner Fantino that his comments to the press had called into question the appropriateness of his appointment as a First Nations Constable and that an investigation would take place. Commissioner Fantino advised the applicant that the results of the investigation would be shared with him and he would be provided with an opportunity to respond to the findings. Commissioner Fantino advised the applicant that following the investigation, he would either remove the suspension or terminate the applicant's appointment. Finally, Commissioner Fantino advised the applicant that any issues or concerns relating to his status as an employee should be directed to his employer, the Tyendinaga First Nation, and that he was only dealing with his appointment as a First Nations constable. The OPP suspended the applicant with full pay.

33On April 20, 2007, Superintendent Blair wrote to Chief Maracle about the applicant's suspension and stated:

On April 18^th, 2007 I spoke with you, and advised you of the Commissioner's intention to suspend Mr. Hay's appointment as a result of a conduct related matter. At your request I confirmed that Mr. Hay would be given "due process" with regards to the suspension and any subsequent action as a result of the conduct investigation. Further to this commitment you (council) will be consulted with regards to the final disposition of this matter.

The suspension with pay removes the powers and authorities Mr. Hay has as a police officer. Mr. HAY has surrendered his use of force equipment and his police identification. Although suspended as a police officer he remains an employee of the Council of the Mohawks of the Bay of Quinte. Any decisions in regards to this employment status are the responsibility of his employer.

34On April 23, 2007, Chief Maracle wrote to Commissioner Fantino to complain that the OPP had not consulted with Council about the applicant's suspension. Chief Maracle took the position that the unilateral approach by the OPP demonstrated the inadequacies and paternalism of the current policing model. Chief Maracle advised Commissioner Fantino that Council needed to have direct involvement into disciplinary matters regarding officers of the TMPS. Chief Maracle requested a meeting with Commissioner Fantino to discuss Council's concerns.

35On April 30, 2007, the applicant's legal counsel, Michael O'Shaughnessy, wrote to Commissioner Fantino and requested a revocation of the suspension on the basis that it was done without consultation with Council and was therefore illegal. Mr. O'Shaughnessy advised Commissioner Fantino that if he failed to revoke the suspension in a timely manner, he would seek redress from the Superior Court of Ontario.

36On May 3, 2007, the applicant was notified by Staff Sergeant Chris Newton of the Professional Standards Bureau ("PSB") of the OPP that an internal complaint had been filed against him. He was advised the complaint would be investigated by Detective Sergeant Reema Abdo.

37On May 14, 2007, Superintendent Blair wrote to Mr. O'Shaughnessy advising him that the applicant's appointment had been suspended under s. 54 of the PSA pending completion of an investigation. Superintendent Blair stated that consultation with the Chief of the Tyendinaga First Nation had occurred prior to the applicant's suspension. Superintendent Blair told Mr. O'Shaughnessy that his client would be advised of the results of the investigation and given an opportunity to respond prior to the Commissioner making any decision regarding the termination of the applicant's appointment. Superintendent Blair advised Mr. O'Shaughnessy that the applicant would receive all pay and benefits pending the completion of the investigation.

38By letter dated May 15, 2007, Mr. O'Shaughnessy wrote to Staff Sergeant Newton and made the following inquiries:

• Under what authority or statute was he acting?
• Who made the complaint against the applicant?
• What complaint process was being followed?

39In the same letter, Mr. O'Shaughnessy advised Staff Sergeant Newton that his client would not attend any meetings or be involved in any process until the illegal suspension was revoked.

40By letter dated May 22, 2007, Mr. O'Shaughnessy wrote to Superintendent Blair and provided him with a copy of his correspondence to Staff Sergeant Newton. Mr. O'Shaughnessy advised Superintendent Blair that answers to the questions posed to Staff Sergeant Newton were fundamentally important to the applicant.

41On May 23, 2007, the applicant issued a Notice of Claim under the Proceedings Against the Crown Act. The Notice of Claim challenged the applicant's suspension on the basis that there was no consultation with Council.

42By letter dated May 31, 2007, M. MacLachlan of the PSB wrote to Mr. O'Shaughnessy and advised him that the PSB had been assigned to conduct an investigation into the alleged remarks made by the applicant and his conduct in relation to his appointment as a First Nations Constable. The letter advised Mr. O'Shaughnessy that his client would be contacted by Detective Sergeant Abdo. It said that if the applicant chose not to speak with the investigator, the investigation would proceed without the benefit of his response to the allegations and a report of the findings and conclusions of the investigation would be prepared for the Commissioner.

43The PSB investigation was completed in August 2007. The report was delivered to Commissioner Fantino on August 31, 2007. The report was delayed due to the leave of absence of Detective Sergeant Abdo and the reassignment of the investigation. The report found:

• The applicant made the comments to the press.
• The appointment of the applicant as police chief deteriorated the relationship between the OPP and the TMPS.
• The applicant made it clear to the members of the TMPS that he had a dislike of the OPP as an organization.
• The applicant stated to members of the TMPS that the OPP are "Fucking Idiots" and "a bunch of cowboys".
• There was a clear division within the TMPS as to how the occupation site should be policed.
• The applicant created division within the TMPS office.
• The applicant's attitude towards the OPP and the comments to the media created a safety concern for some members of the TMPS. They felt OPP officers would be hesitant to come to the reserve for back-up.

The PSB report was shared with Council on September 7, 2007.

44By internal memo dated September 24, 2007, then Deputy Commissioner Chris Lewis (now Commissioner Lewis) of the OPP expressed the view that the applicant should not return to TMPS because his comments and his divisive approach had caused harm to the OPP's relationship with the members of the TMPS and likely the people of Tyendinaga. Commissioner Fantino agreed and on October 9, 2007, he requested that a formal letter of termination be served on the applicant, with a copy to Chief Maracle and Council.

45On October 3, 2007, Chief Maracle wrote to Commissioner Fantino and advised him that Council was of the opinion that the onus should be on the OPP's First Nations Policing Branch to "remedy the situation it created". This letter was received by the OPP on October 10, 2007.

Termination

46By letter dated December 12, 2007, Commissioner Fantino advised the applicant that he was considering the termination of his appointment as a First Nations Constable based on the investigation findings that the applicant had made the comments attributed to him by the press. Commissioner Fantino advised the applicant that his conduct was inconsistent with the roles and responsibilities of a First Nations Constable. He stated broad unsubstantiated public allegations of this nature, about other police services in Ontario, were unacceptable, particularly when made by an officer in uniform and on duty. He stated further that the applicant's comments fostered disrespect for those responsible for law enforcement and could potentially place those individuals at risk. Finally, he stated the applicant's comments frustrated the ability of all police services in the province to work together and likely led to a lack of trust and respect amongst the applicant's policing partners. The comments were more concerning given the applicant's supervisory role with the police service in his community. The applicant was invited to reply to these concerns within three weeks of the December 12, 2007 letter.

47On January 15, 2008, Mr. O'Shaughnessy wrote to Commissioner Fantino and advised him the applicant would not participate in the investigation and would not reply to the allegations until the suspension was revoked.

48On January 22, 2008, Commissioner Fantino, Deputy Chief Lewis and Superintendent Blair met with Council to discuss the findings of the PSB report.

49By letter dated January 24, 2008, Commissioner Fantino terminated the applicant's appointment as a First Nations Constable. The reasons for termination were the same reasons provided in his December 12, 2007 correspondence, summarized in paragraph 46 above.

50By letter dated January 24, 2008, Commissioner Fantino wrote to Chief Maracle to advise him of the decision to terminate the applicant's appointment as a First Nations Constable. Commissioner Fantino advised Chief Maracle that he was not terminating the applicant's employment. On this point, he stated:

I am not terminating his employment. As we discussed at the meeting (January 22, 2008), any impact this decision may have on his employment status is for his employer, the Tyendinaga First Nation, to resolve.

The process for terminating an appointment under section 54 is not the same as the disciplinary process, which would be undertaken by an employer. The effect of the termination is to remove the policing authority that he acquired as a consequence of his appointment.

51Chief Maracle responded to Commissioner Fantino's letter of January 24, 2008 on April 2, 2008, more than two months after the termination. He advised Commissioner Fantino of a decision of the Canada Industrial Relations Board ("CIRB") dated March 10, 2000 which found First Nations Constables of the TMPS were employees of the OPP, not the Mohawks of the Bay of Quinte (Tyendinaga First Nation). Chief Maracle took the position the applicant was an employee of the OPP and as a result, the termination of his appointment as a First Nations Constable was a termination of his employment by the OPP.

52By letter dated July 9, 2008 from Superintendent Blair, the applicant was advised that funding of his position was discontinued under the provisions of the OFNPA.

The Ipperwash Inquiry

53First Nations policing was considered by the Ipperwash Inquiry when it inquired into and reported on the events surrounding the death of Dudley George who was shot in 1995 during a protest by First Nations at Ipperwash Provincial Park, and later died. The hearing commenced in July 2004 and concluded in August 2006. The Ipperwash Inquiry Report was released by the Honourable Justice Linden on May 31, 2007.

54The Inquiry found that racist and culturally insensitive comments by OPP officers during the occupation and the production of inappropriate memorabilia after the occupation, was indicative of a lack of sensitivity that created an invisible barrier to the timely and peaceful resolution of the occupation. Justice Linden found cultural insensitivity within the OPP was not restricted to a few "bad apples", but was widespread in the organization. On this point, he stated:

If this lack of sensitivity was prominent in the days immediately following this event amongst those officers who participated in the event, it is reasonable to infer that these officers went into the confrontation with the same lack of sensitivity. At the very least, both the post-shooting conduct (as manifested in the mugs, T-Shirts, beer can symbol, and the bull's eye and arrow appliqué,) and the racist and culturally insensitive comments made during the course of the police operation on September 5 and 6, 1995, are suggestive of an invisible barrier that prevented a timely, peaceful resolution to the occupation by reflecting an "us versus them" mentality, and caused the Aboriginal occupiers to maintain their preconceptions about the police in terms of their attitudes toward the Aboriginal occupiers and the motives underlying the actions of the occupiers.

55The following recommendations were made by the Ipperwash Inquiry regarding First Nations policing:

• The federal and provincial governments should update their policies on First Nation policing to recognize that self-administered First Nation police services in Ontario are the primary police service providers in their communities.
• The provincial government, OPP, and First Nation police services should work together to identify how the provincial government can support First Nation police services to be as effective as possible when policing Aboriginal occupations and protests, either within their own territories or in support of the OPP or other police services in Ontario. The OPP and First Nation police services should engage in joint planning and training for Aboriginal occupations and protests and existing protocols should refer to occupations and protests.
• Federal, provincial, and First Nation governments should commit to developing long-range plans for First Nation policing in Ontario.
• Federal, provincial, and First Nation governments should commit to developing a secure legislative basis for First Nation policing services in Ontario.
• The provincial government should work with the Nishnawbe Aski Nation, the Nishnawbe-Aski Police Services, and other First Nations in Ontario as appropriate to develop a "made in Ontario" legislative or regulatory framework for First Nation policing in Ontario. The provincial government should also amend the Police Services Act to allow First Nation police services or boards to appoint their own officers.
• The provincial government, First Nation police services, and the OPP should establish an Ontario First Nation Chiefs of Police Association.
• The federal and provincial governments should increase capital and operational funding for First Nation police services in Ontario. This funding should be secured by renewable, five-year agreements between the federal, provincial, and First Nation governments.

56The Ipperwash Inquiry found First Nations policing arrangements under tripartite agreements are both valuable and successful. The Inquiry recommended provincial legislation be enacted to allow a First Nation to opt into all or parts of the PSA or to some form of stand-alone provincial First Nation policing legislation. The Inquiry stated it was important that the application of provincial legislation not be mandatory as "Any potential Police Services Act amendment or stand-alone legislation must acknowledge the right of individual First Nations to choose to follow all or parts of the provincial legislative scheme".

THE ISSUES

57The issues in this case are as follows:

a. Was the suspension and termination of the applicant's appointment as a First Nations Constable discriminatory?

b. Was the applicant's termination a form of reprisal?

c. Was the investigation conducted by PSB discriminatory?

d. Is the exclusion of First Nations Constables from the PSA discriminatory?

Before answering these questions, there are some preliminary issues to determine.

ANALYSIS

Who was the Applicant's Employer?

58The parties agree the applicant's allegations are "with respect to his employment" within the meaning of section 5 of the Code. As such, there is no issue regarding the application of the Code to the applicant's complaint of discrimination.

59The applicant and the respondents take the position Council was the applicant's employer. This is consistent with the terms of the OFNPA. The OPP makes a distinction between the applicant's appointment as a First Nations Constable under the PSA and his employment with Council.

60Council, although not a party to the Application, asserts the OPP was the applicant's employer. It relies on the decision of the CIRB in Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory (Re), [2000] CIRB No. 64, to support this view. This position was set out in correspondence from Chief Maracle to Commissioner Fantino on April 2, 2008.

61The OPP argues the identification of the applicant's employer is relevant to the issues in this case because had Council acted, the Commissioner would not have acted or have been required to act. Because the Commissioner was forced to act, his options were limited to suspension and termination under s. 54 of the PSA.

62In Mohawks of the Bay of Quinte, the CIRB held Council was responsible for the appointment, discipline and termination processes of First Nations Constables. Notwithstanding this finding, the Board held the financial aspects of the relationship between the First Nations Constables and the OPP were conclusive of the employer/employee relationship. The Board found the OPP was the employer because it controlled the salary, overtime pay, insurance and pension rights of First Nations Constables.

63The Federal Court in Chippewas of Kettle & Stony Point First Nation v. Shawkence, 2005 FC 823, [2005] F.C.J. No. 1030, held the Kettle & Stony Point First Nation (the "KSP First Nation") was the employer of First Nations Constables. The Court stated to hold otherwise would remove the ability of the KSP First Nation to hire its own police constables. In that case, the KSP First Nation hired and fired the First Nations Constable. The Court distinguished the CIRB decision on the basis that it involved the certification of a bargaining unit, not unjust dismissal, and did not involve officers who were first employed by the individual First Nation communities. This decision was upheld by the Federal Court of Appeal in 2006 FCA 154, [2006] F.C.J. No. 655.

64I adopt the finding of the Federal Court and find Council was the applicant's employer. This finding is supported in the paper "Setting the Context: The Policing of First Nations Communities" by The First Nations Chiefs of Police Association in partnership with Human Resources Development Canada at page 115:

To be clear, First Nations constables employed under the OFNPA or a tripartite arrangement between a First Nation, the province and Canada, are not employees of the OPP (or other provincial police service). If they are appointed under the OFNPA and are not members of a self-administered police service, they are defined as employees of the First Nations Council, governed by the terms of their own policing agreement. The officers are accountable to an established police governance board in addition to the members of the First Nations members that they serve. The police governance board acts as a sounding board for the community's concerns.

65The identity of the applicant's employer is relevant to the fourth issue raised in the Application, namely whether the exclusion of the applicant from the PSA discriminated against him.

The Applicant's Comments to the Press

66During the hearing before the Tribunal, the applicant gave the following explanation for his comments to the press:

There were a number of instances with police officers (...) vast misunderstanding of the Aboriginal plight. My own life experiences. I had seen behaviour in the RCMP and OPP. I was aware of other incidents involving SQ and Oka. This led me to conclusions. There are varying degrees of racism. It can be overt to subtle policy decisions. It creates a double standard. It is still racism. Race-based approaches to not just Aboriginal people that in some way disadvantages them further. In the policing of the Culbertson Track, it became clear our officers were not afforded the same resources as non-Aboriginal officers. We had to rely on the OPP to supplement with manpower, resources, porta-potty, that was available to us. That was first and foremost in my mind. There wouldn't be a second thought to providing those resources if non-Aboriginal. We were functioning bare-bones and trying to manage with minimal police officers and not much of a command post. When the question was asked, racism in terms of policies and resources.

67The applicant's evidence is consistent with the concerns expressed to Commissioner Fantino in his e-mail of April 18, 2007, sent prior to his suspension. In that communication, the applicant complained that his officers were no longer being compensated for overtime. He stated he was disturbed by Superintendent Blair's assumption that he had the administrative authority to direct the operations of the TMPS who were operating on Mohawk territory and raised the issue of differential resources being provided to the TMPS compared to other police services. The applicant advised Commissioner Fantino that if funding the policing of the Quarry was beyond the scope of the First Nations policing agreement, arrangements could be made to obtain emergency funding from the Federal Aboriginal Policing Directorate. The applicant stated in his e-mail correspondence:

Should you decide to pursue this course of action in seeking additional funding from the federal government, I have a list of resourcing requirements to be addressed in order to support our continued presence. The current working conditions and lack of even the very basic equipment that is available to any other mainstream organization under these circumstances is suggestive of a double standard within our profession. Clearly this inequity would not be tolerated by any member of your Service, the SQ or the RCMP.

68The applicant's comments to the press in April 2007 preceded the release of the Ipperwash Inquiry Report in May 2007. There is no evidence from the applicant that his comments were influenced in any way by the evidence before the Ipperwash Inquiry.

69During the hearing, the applicant asserted additional reasons for his comments, namely that for many years First Nations constables were paid less than OPP officers and have different pension rights today. The applicant does not, however, state that these issues were on his mind when he made the comments to the press. They were relied upon as an after-the-fact rationale for his comments and were not pleaded in his Application.

70Although the applicant's own life experiences and his experiences as a police officer no doubt influenced his perspective, I find the applicant's comments to the press related to the resources provided to the TMPS to police the occupation at the Quarry. The applicant testified before the Tribunal that his comments to the press related to racism in terms of policies and resources. His comments to the press were similar to his statements to Commissioner Fantino in his e-mail of April 18, 2007, where he complained about the inequity in resources provided to the TMPS. He asserted this inequity would not be tolerated by members of the OPP, the SQ or the RCMP. In essence, the applicant's comments to the press were very similar to his comments to Commissioner Fantino on April 18, 2007.

Issue One: Was the suspension and termination of the applicant's appointment discriminatory?

(a) Failure to consult is discriminatory

71The applicant argues his suspension and termination were discriminatory because they were imposed without consultation with Council. He states the "duty to consult" is the only protection a First Nations Constable and a First Nations governing authority have. To fail to provide that protection discriminated against the applicant on the basis of race.

72There was a great deal of evidence about the communications between the OPP and Council relating to the suspension and termination of the applicant's appointment as a First Nations Constable. The OPP took the position it had consulted with Council before making its decisions to suspend and terminate the applicant's appointment. The applicant took the opposite view.

(i) Suspension Decision

73The decision to suspend the applicant's appointment was made by Commissioner Fantino on April 17, 2007. This is reflected in the notes of Deputy Commissioner Lewis on April 17, 2007. On April 18, 2007, Superintendent Blair spoke to Chief Maracle and informed him of the Commissioner's suspension decision. Commissioner Fantino admitted in evidence that he made the decision to suspend the applicant's appointment before speaking with Council.

74When Superintendent Blair spoke to Chief Maracle, Chief Maracle did not express a view as to whether the applicant should be suspended. Chief Maracle testified he did not believe Council had a say in the suspension because the Commissioner had both the authority and the responsibility as the applicant's employer. Because of this, he did not ask that the applicant not be suspended, nor did he request the decision be delayed until Council could meet. Chief Maracle did request the applicant be given due process.

75I find the Commissioner did not consult with Council prior to making the decision to suspend the applicant's appointment as required by s. 54(4) of the PSA. This was admitted by Commissioner Fantino in his evidence. The issue is whether that, on its own, discriminated against the applicant.

76Chief Maracle, in his letter to Commissioner Fantino dated April 23, 2007, took the position that the unilateral approach by the OPP in suspending the applicant was "systemic of the inadequacies and paternalism of the current policing model". He expressed the view that Council must have direct involvement into any disciplinary matters regarding the officers of the TMPS. While one can understand how a failure to consult Council could be perceived as paternalistic, it is difficult to reconcile that position with Chief Maracle's evidence that he did not believe Council had a role in the suspension decision. On this point, he stated:

I understood they thought it was serious and that Larry should not have made the comments. I didn't feel we had a say in what was happening. The Commissioner had the authority. It was his obligation and responsibility. Whether Larry could be a police officer was the Commissioner's decision.

77The Commissioner testified that he made the decision to suspend the applicant's appointment quickly as a form of damage control to the greater policing community, his own police service, and the Aboriginal community in Tyendinaga and beyond, during a very difficult time in policing in the province. The Tribunal heard evidence that in 2006 and 2007, the OPP was responding to protests involving Native land claims in Caledonia, Robertsville and Big Trout Lake, in addition to the occupation at the Quarry. I accept this evidence.

78I find the decision to suspend the applicant's appointment was made quickly and without consultation with Council because of the nature of the applicant's comments, their impact on the broader policing community and the volatility of the times both in relation to the occupation of the Quarry and other land disputes that were taking place in the province. The decision to act quickly was not influenced by the applicant's race, but was reflective of the seriousness with which the applicant's conduct was perceived by the Commissioner.

79The Divisional Court decision in Allen and Commissioner of the Ontario Provincial Police (1975), 1974 CanLII 717 (ON HCJDC), 6 O.R. (2d) 671, offers support for this finding. The Court found the power to suspend a constable is part of the authority conferred on the Commissioner for the proper administration of the force. "Its primary purpose is not to discipline the member who is suspended under its provisions, but to remove him from duty for reasons that in the judgment of the Commissioner are important for the protection of the public and of the force itself" (at pg. 4). This finding was affirmed by the Court of Appeal for Ontario in Myllynen v. Board of Police Commissioners of City of Peterborough et al., [1978] O.J. No. 3430.

80The applicant submits the suspension was illegal because the failure to consult Council was in contravention of s. 54(4) of the PSA. That issue is not before the Tribunal. The applicant commenced a court action to review the suspension decision, but did not proceed with it. The Tribunal has no authority to judicially review the Commissioner's breach of his statutory duty as that is within the exclusive jurisdiction of the courts.

(ii) Termination Decision

81The PSB investigation report was completed in August 2007. The PSB report was provided to Council on September 7, 2007.

82After receiving the PSB report, Deputy Chief Lewis, in an internal memorandum dated September 24, 2007, expressed the opinion that the applicant should not return to TMPS. Commissioner Fantino agreed and on October 9, 2007, requested an appropriately worded formal letter of termination be served on the applicant, with a copy to Chief Maracle and Council. No letter of termination was sent at that time.

83By letter dated October 3, 2007, Chief Maracle wrote to Commissioner Fantino about the situation. He expressed the view that while the OPP had to remedy the situation it had created, Council did not feel that termination was warranted. Relevant excerpts of the letter are reproduced below.

The Tyendinaga Mohawk Council has deliberated the issue of Police Chief Hay's suspension at length and is of the opinion that the onus should be on First Nations Policing Branch to remedy the situation it created. However, as an interim police services board, the Tyendinaga Mohawk Council would be remiss if it did not offer its advice on the issue.

Although the Tyendinaga Mohawk Council does not support or condone the alleged public comments made to the media by Police Chief Hay, it does not feel that termination is warranted. Therefore, the Tyendinaga Mohawk Council suggests the reassignment of Police Chief Hay's police duties with an appropriate reprimand as deemed by First Nations Policing utilizing existing "codes of conduct", police services bureau, or other professional resources you deem appropriate.

As a proactive measure to address the deficiencies in policing under the current model and to ensure that a similar situation does not arise in the future, our community has initiated a process of examining our policing needs through a community consultation process. A Community Safety Working Group has been formed to explore policing needs from a community perspective and also to research existing policing models of other First Nations communities. This fact-finding process will assist us in developing a policing model that will be culturally appropriate and responsive to the needs of our community. This process will also assist us in establishing police governance and accountability measures within our police services in future.

84Chief Maracle testified that he believed the applicant was wrong to have made the comments to the press and that he had put his career in jeopardy by doing so. He expressed the opinion that racial issues should be complained about in a professional way. Chief Maracle acknowledged that while insulting comments could be made by individual officers, to paint the entire organization as racist was, in his view, very unfair.

85On December 12, 2007, Commissioner Fantino wrote to the applicant and advised him that he was considering the termination of his appointment as a First Nations Constable and provided him with the reasons why. Commissioner Fantino advised the applicant that he had consulted with Council who did not want him to terminate the applicant's employment. On this point he stated:

As required by Section 54 of the Police Services Act, I have consulted with your employer, the Chief and Council of the Mohawks of the Bay of Quinte, in regard to the termination of your appointment as a First Nations Constable. Chief R. Donald Maracle has indicated that your employer does not want me to terminate your appointment. Chief Maracle has advised that he and his council do not condone your actions, but, as your employer, they are not prepared to take any action regarding your inappropriate behaviour.

The applicant did not reply to this letter.

86On January 22, 2008, Commissioner Fantino, Deputy Commissioner Lewis and Superintendent Blair met with Council to inform them of the Commissioner's decision to terminate the applicant's appointment. On January 24, 2008, the applicant was provided with written notice of the termination of his appointment.

87The Divisional Court in Bruce v. Ontario (Provincial Police), 2000 CanLII 22608 (ON SCDC), [2000] O.J. No. 4767, held the "duty to consult" under s. 54(4) of the PSA requires the Commissioner to determine the band council's interest in continuing the appointment and the grounds for council's position so that, together with the information from the OPP's internal investigation and other sources, the Commissioner can fulfil his duty under subsection (7) to give the constable in question reasonable information with respect to the reasons for the termination. The purpose of the "duty to consult" is to provide procedural fairness to the constable to enable him or her to provide an informed reply to the reasons for termination.

88Council was provided with the PSB report on September 7, 2007. The Commissioner made the decision to terminate the applicant's appointment on October 9, 2007, but did not act on that decision. Council communicated its view of the appropriate penalty to be given to the applicant by letter dated October 3, 2007, received by the OPP on October 10, 2007. The applicant was provided with the position of Council, the results of the PSB investigation and the reasons for termination in the Commissioner's letter of December 12, 2007. He was provided with full information to permit him to give an informed reply. He chose not to do so. The Commissioner met with Council on January 22, 2008, to inform them of his decision to terminate the applicant's appointment. After receiving the input of Council and hearing nothing from the applicant, the Commissioner made the final decision to terminate the applicant's appointment by letter dated January 24, 2008. In these circumstances, the Commissioner met his duty to consult as found in Bruce.

89The applicant has failed to establish that the failure to consult Council discriminated against him. While the Commissioner failed to consult Council prior to making the suspension decision, there were non-discriminatory reasons for doing so. The Commissioner did consult with Council before making the final termination decision and therefore it cannot be found the failure to do so was discriminatory.

(b) Treatment of non-Aboriginal officers

90The applicant argues the termination of his appointment was discriminatory because he was treated more harshly than the OPP officers who made racist comments and distributed racist material relating to Ipperwash. He states his appointment was terminated for drawing attention to racism within the OPP whereas the OPP officers who had engaged in racist conduct received inconsequential discipline and continued to be employed. The applicant draws a comparison based on race – those who committed racist acts versus the applicant who complained about racism.

91For the purposes of this comparative analysis, the applicant relies on the OPP's treatment of detective constables Whitehead and Dyke who made a video recording of Ipperwash Provincial Park in 1995. The OPP investigated the recording in 2003 as a result of a Freedom of Information Act request. In the video, Whitehead stated, "Just a great big fat fucking Indian". Dyke stated, "We had this plan. If we got 5 or 6 cases of Labatt's 50, we could bait them. Then we could get this big net in a pit, creative thinking, works in the south with watermelons".

92Whitehead received informal discipline in August 2003 for his conduct. Twenty-four hours were deducted from his vacation credits and he was required to attend a four-day First Nations Awareness Program. Dyke had retired from the force and was not disciplined. He was, however, on contract at the time of the investigation and his contract was terminated.

93There are a number of variables that make the applicant's comparative analysis with Whitehead and Dyke impossible. The applicant made a public statement about racism in the OPP, RCMP and SQ. He did not make racist or other discriminatory comments. The applicant's comments were made when he was chief of police. The other officers were detective constables. The applicant's comments were made in 2007 and he was disciplined eight months later. The other constables made racist comments in 1995 and were disciplined eight years later in 2003. The other officers participated in the investigation, the applicant did not. The other officers expressed remorse. The applicant did not. These differences highlight why it is difficult to draw a conclusion based on the differential treatment of the applicant and Whitehead and Dyke because of race.

94The applicant also relies on the OPP's treatment of Kenneth Deane, the person convicted of criminal negligence causing the death of Dudley George. Mr. Dean was not discharged as a police officer until several years after his criminal conviction. Mr. Dean received support from fellow officers in the form of buttons bearing an OPP logo. The support was not initiated or condoned by the OPP. The applicant argues this is further evidence of racism within the OPP.

95Deputy Commissioner Lewis testified the PSA hearing into Mr. Deane's conduct occurred sometime between 2001 and 2004. Mr. Dean's criminal conviction was in 1997 followed by two appeals, including one to the Supreme Court of Canada in 2001. Mr. Dean's appeals, not inherent racism within the OPP, may well have been the reason for the delay of the PSA hearing.

96The applicant compares his treatment with the treatment of non-Aboriginal officers involved in Ipperwash. The applicant's conduct and the conduct of the other officers are not similar in any way and cannot form the basis of any comparison. Even if they could be compared, there are too many variables to make the comparison reliable. The real comparison in this case is how the applicant was treated when compared with a senior OPP officer who publicly criticized the OPP and refused to explain or justify the criticism. There is no evidence in this regard.

97Although there is no evidence of differential treatment between the applicant and other senior officers, it is reasonable to assume the OPP's reaction to a senior officer going to the press with serious criticisms of the OPP would have been responded to in the same way. This suspicion is supported by the evidence of Deputy Commissioner Lewis. In cross-examination, he was asked whether the applicant's experience as a Native person provided some justification for his comments to the press. Deputy Commissioner Lewis responded:

A: No, I wouldn't agree. In fact I would further that by saying, even if Larry had (observed more racism) – which would be wrong and sad, and obviously it is something I wouldn't condone – I would expect that he would take action, not get up in front of the press and say that eight or nine or ten or 15 years prior, in the RCMP, he observed racism. Why didn't he deal with that at the time or some time since then? As well, with the OPP, when he met with me, and when he met with the different inspectors in Napanee or whoever. If it occurred, wrong as it is, he should have raised it, not gone to the media and made this announcement for all to hear.

Q: How should he have raised it, sir, in your view?

A: Directly with the individuals at the time; with supervisors at the time within whatever police department he was dealing with. That would be the appropriate way to deal with that, and he would know that as an experienced police officer and as a supervisor. He would understand that.

98Commissioner Fantino expressed a similar view in his evidence:

Q: If it was true (the applicant's allegation that the OPP was a racist organization), then it would be proper for him to have said so to the reporter. Is that your view?

A: No, it would not. He would have had a fiduciary duty to report in a proper manner, not to the media. Since when do the police go reporting to the media?

99It is clear from the evidence of Deputy Commissioner Lewis and Commissioner Fantino that they believe there was an appropriate way for the applicant to voice his concerns: that it was inappropriate for a police officer to ignore the chain of command and voice his complaints publicly to the press. It is my view the OPP would have responded the same way to any public criticism of the organization by a police officer, especially by a senior officer, while in uniform and on duty.

100In conclusion, there is no evidence the applicant was treated differently because of his race when compared to non-Native senior police officers who engaged in similar conduct. The applicant seeks to draw a comparison between his treatment and the treatment of OPP officers who engaged in racist conduct in 1995. There are too many variables to make this comparison reliable.

(c) Cultural Insensitivity of Fantino

101The applicant also asks the Tribunal to draw an inference that racism influenced Commissioner Fantino's decisions to suspend and terminate the applicant's appointment based on allegations that Commissioner Fantino himself is culturally insensitive or racist towards First Nations people. I will address that part of the applicant's case next.

102Factual inferences may be drawn provided they can be reasonably and logically drawn from the evidence. An inference which does not flow logically or reasonably from a fact or group of facts established by the evidence amounts to conjecture or speculation. See R. v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at para. 52.

103The applicant argues Commissioner Fantino's cultural insensitivity was displayed in his testimony before the Tribunal in the following ways:

• Commissioner Fantino referred to Shawn Brant, a Native protestor, as a "criminal" and the protest in which he was involved as a "criminal activity";
• Commissioner Fantino believed the findings of the Ipperwash Inquiry in May 2007 had "nothing to do with the applicant";
• Commissioner Fantino failed to implement all of the Ipperwash Inquiry recommendations;
• Commissioner Fantino did not deal with the OPP officers who committed racist acts identified in the Ipperwash Inquiry Report.

104The applicant testified that he believes Commissioner Fantino is a racist.

105Shawn Brant is a First Nations protestor who was involved in the blockades of the Canadian National Railway line and highway 401 in 2007. The applicant referred to a transcript of Commissioner Fantino's evidence during the preliminary inquiry into Mr. Brant's criminal charges where he expressed the view that Mr. Brant's request to consult with his community during the blockade was really a stalling tactic. The applicant argues this shows a lack of understanding of the consensual decision-making process engaged in by Native people. The Commissioner testified that in his view, Mr. Brant was engaged in counselling and promoting criminal activity that had nothing to do with Native culture. The applicant argues Commissioner Fantino demonstrated his cultural insensitivity when he described Native protestors as "criminals" and Native occupations as "criminal activity".

106The applicant also relies on the temporal connection between the release of Ipperwash Inquiry report and his suspension and pending termination. In a nutshell, the applicant believes the findings of the Ipperwash Inquiry provided public affirmation for his comments to the press and this should have given Commissioner Fantino pause. Commissioner Fantino testified that in his view, the findings of the Ipperwash Inquiry had nothing to do with the applicant. He testified the applicant's comments tarred all 9,000 OPP employees. He did not feel Justice Linden had done the same thing. The applicant submits this view alone is evidence of racial discrimination.

107The applicant argues further that Commissioner Fantino's cultural insensitivity is evident from the fact that he did not deal with the officers who had made racist remarks or committed racist acts in relation to Ipperwash. Commissioner Fantino testified his priority was not to go back and relive the Ipperwash Inquiry. His concern was on embracing the findings of the Inquiry and working towards dealing with its recommendations in a meaningful way.

108Finally, the applicant relies on the fact that Commissioner Fantino did not implement all of the Ipperwash Inquiry recommendations to support his argument that he held culturally insensitive or racist views of Native people.

109The respondents rely on a number of initiatives undertaken during his tenure as Commissioner to refute the applicant's assertion that he was culturally insensitive:

• Commissioner Fantino met with Mr. Justice Linden in order to fully understand both the issues and the recommendations in the Ipperwash Report.
• Commissioner Fantino tasked the creation of the Aboriginal Policing Bureau to enhance the commitments made by the OPP at the Ipperwash Inquiry. The Bureau has 30 positions, 15 of which are filled by Native officers.
• Commissioner Fantino developed relationships with First Nations leaders throughout Ontario and met with them frequently.
• Commissioner Fantino directed the creation of a youth program in Pikangikum.

The applicant was not aware of these initiatives.

110The evidence adduced by the applicant is insufficient to draw an inference that Commissioner Fantino held culturally insensitive views towards First Nations and that those views influenced his treatment of the applicant.

111Dealing first with Commissioner Fantino's use of the word "criminal" to describe Shawn Brant. While I agree the use of the word "criminal" in the context of native occupations and blockades may be culturally insensitive, I know very little about this blockade and the actions of Shawn Brant, other than he faced criminal charges. It is unclear to me what conclusion I am to draw from this. Even if I were to find Commissioner Fantino's language was culturally insensitive, the question is whether a larger inference can be drawn.

112The applicant argues I should draw a larger conclusion based on the fact that Commissioner Fantino believed the findings of the Ipperwash Inquiry had nothing to do with the applicant. I agree that it is difficult to draw a link between Ipperwash and the applicant. The Ipperwash Inquiry concerned events that happened in 1995. The applicant made his comments in 2007. Justice Linden's finding of cultural insensitivity and racism within some of the ranks of the OPP was based on conduct that had occurred in 1995, not 2007. Finally, Justice Linden did not say the OPP was a racist organization. The applicant did.

113The applicant argues further that the findings of the Ipperwash Inquiry confirmed his comments to the press. I do not agree. As stated above, the Ipperwash Inquiry concerned events that occurred in 1995 (although some of it was discovered much later). The Ipperwash Inquiry Report did not make findings about the OPP as it existed in 2007. As Justice Linden stated in the report "It is important to acknowledge that since this tragic event, the OPP have taken many positive steps toward promoting cultural sensitivity and eliminating racism within its own organization and building a constructive relationship with First Nations communities". It is difficult to infer that an organization found to have had problems of systemic racism arising out of events in 1995 is the same organization in 2007, after many reforms have been implemented. To accept this argument would mean organizations are never capable of systemic change.

114The applicant argues an inference of racism should be drawn from the fact that Commissioner Fantino did not implement all of the Ipperwash recommendations directed at the OPP. There is no basis for drawing an inference of racism from the failure to address specific recommendations of a public inquiry.

115Finally the applicant argues an inference of racism should be drawn from the fact that Commissioner Fantino did not go back and deal with those officers who had made racist comments or produced racist material identified in the Ipperwash Report. There are various possible responses to the Ipperwash Report and the choice of some does not make Commissioner Fantino a racist.

116In large part, the applicant relies on the events at Ipperwash to support his inferences against Commissioner Fantino. It is important to note that Ipperwash did not happen under Commissioner Fantino's watch. Commissioner Fantino became Commissioner of the OPP in October 2006, after the Inquiry had concluded and before the Report was released in May 2007.

117The applicant has adduced insufficient evidence to allow me to draw an inference that race was a factor in the decisions to suspend and terminate his appointment as a First Nations Constable based on the alleged attitudes of Commissioner Fantino. Commissioner Fantino responded to the applicant because of the seriousness with which he viewed his public comments to the press and not because of racist or culturally insensitive attitudes held by him.

Conclusion

118The applicant has failed to establish the decisions to suspend and terminate his appointment were discriminatory. The Commissioner suspended the applicant's appointment because his comments put into question the appropriateness of his appointment as a First Nations Constable. The suspension allowed the OPP to investigate his conduct. The Commissioner consulted with Council prior to terminating the applicant's appointment. While it is unknown whether the Commissioner would have acted differently had Council taken disciplinary action, the decision to terminate was based on non-discriminatory reasons. The applicant was terminated because he made public allegations against the OPP and other police services while in uniform and on duty. The comments were unsubstantiated because the applicant refused to explain them. The comments fostered disrespect for police officers and potentially placed them at risk. They interfered with the cooperation necessary for police services to work together. The comments were more concerning because they were made by the chief of police. These are the reasons given on the termination letter and they are not discriminatory.

Issue Two: Was the termination of the applicant's appointment a form of reprisal for claiming his human rights?

119Section 8 of the Code provides as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

120There are two issues relating to this allegation. Did the applicant assert his rights under the Code and was he reprised against for doing so?

121The applicant's comments to the press related to his belief that differential resources were being provided to the TMPS to police the Quarry. The applicant was clear in his evidence that he did not have a complaint as an individual officer: his complaint was systemic in nature.

122Section 8 protects the right to claim individual rights under the Code. While some systemic complaints may involve individual complaints of discrimination, that is not the case here. The applicant's police resourcing complaint was not an assertion of his rights under the Code. In fact, the applicant himself did not see the police resourcing complaint as a human rights issue. The consistent response of his legal counsel, both in correspondence and in litigation documents, was the suspension was illegal because the statutory requirement to consult with Council had not been met. At no time was the issue of human rights raised. If the applicant did not see his comments to the press as an assertion of his human rights, how would the respondents see it that way?

123The applicant argues his comments to the press in April 2007 constituted a complaint about systemic racism in the OPP. The applicant asserts his complaint was confirmed by the findings of the Ipperwash Inquiry one month later. As stated earlier, there was no evidence from the applicant that at the time he made his comments, Ipperwash was on his mind.

124Finally, the applicant argues his suspension was in reprisal for policing the occupation of the Quarry in a culturally-sensitive manner. He relies on the notes of Deputy Commissioner Lewis taken during a meeting with Superintendent Blair on April 17, 2007 to support this argument. The notes of Deputy Commissioner Lewis state the applicant would be asked to transition out (of the Quarry) and if he refused, he would be suspended. The notes also state the applicant would be asked if he made the comments and if he affirmed making the comments, he would be suspended. There is no evidence the applicant was suspended for refusing to leave the Quarry. He was suspended for making the comments to the press. The argument advanced by the applicant ignores the evidence before the Tribunal that the OPP thought the TMPS was doing a good job policing the occupation of the Quarry. There were no criticisms regarding how the TMPS was performing in this role.

125Although the comments to the press related to the applicant's belief differential resources were being provided to police the Quarry, the comments themselves were a public criticism of the three largest police forces in Canada. A public criticism on the facts of this case is not a human rights complaint.

126I find the applicant's comments to the press were not an assertion of his human rights under the Code and as such, he does not have access to the protections found in section 8.

Issue Three: Was the PSB conduct investigation discriminatory?

127The applicant argues the PSB investigation into his conduct was unfair for the following reasons: both Superintendent Blair and Deputy Commissioner Lewis functioned as complainants; Superintendent Blair was involved in the investigation; the applicant did not see the PSB report; the OPP did not answer questions from the applicant's legal counsel; the investigation took too long; the applicant was never informed of allegations relating to sharing information with Shawn Brant and his records-management system; and there were deficiencies in the investigation report.

128The applicant has made no submissions as to how the investigation was discriminatory. He states the investigation was so unfair that it supports a finding of racial discrimination. He provides no explanation for this bald assertion.

129As stated many times, the Tribunal does not have jurisdiction over allegations of unfairness unrelated to the Code. See Brouillette v. Northern Lights Canada, 2012 HRTO 159 at para. 37. The mere fact that unfairness has been caused to a person protected by the Code is insufficient. The applicant must establish a link between the investigation and his race. He has failed to do so and as such, this claim is dismissed.

130The investigation conducted by the PSB was an investigation into the applicant's conduct. It was an investigation that he refused to participate in. At no time during the investigation did the applicant raise his human rights. As such, the jurisprudence on the indicia of a proper human rights investigation does not apply in this case.

Issue Four: Is the exclusion of First Nations Constables from the PSA discriminatory?

131The applicant argues the exclusion of First Nations Constables from the definition of police officer under the PSA is discriminatory because it denies them the procedural protections under Part V of the PSA. Under Part V, police officers are entitled to various processes when complaints are made about their conduct. These processes include the right to informal resolution, the right to a hearing and a further right of appeal. The applicant argues these procedural protections were not available to him in the PSB investigation.

132The applicant argues further that s. 54(5) of the PSA is discriminatory because it limits the Commissioner's authority to suspension and termination. The applicant asserts he was denied the range of disciplinary options available to non-First Nations Constables under Part V. It is clear that the arguments relating to the exclusion of First Nations Constables under the PSA and the limited authority of the Commissioner under s. 54(5) are inter-related.

133The respondents argue First Nations policing in Ontario is a special program and the exclusion of First Nations constables from the PSA is an integral part of the special program. The respondents rely on the Hansard debates before the Standing Committee on the administration of justice on June 12, 1990, when the PSA was before the Legislature, to support this argument.

134Grand Chief Cheechoo of the Nishnawbe-Aski Nations ("NAN") presented during the Hansard debates. NAN represented 45 Indian bands or First Nations in remote northern Ontario. Grand Chief Cheechoo spoke about the creation of a NAN police force and a NAN police commission as the first step in the creation of self-government. He stated self-governing institutions required a legislative base and they were looking at whether self-governing institutions could be accommodated within existing legislation or whether legislative amendments were required. In his presentation before the Standing Committee, he stated his community did not want to be subject to the employment, discipline and complaints process in the PSA that other constables are subjected to. An excerpt of his submissions is reproduced below:

Although we want our constables to have full police officer status, we do not wish them to be subject to all of the employment, disciplinary and complaints procedures that other constables are subject to. These procedures are too complex for our small and isolated communities. We would suggest that we design simple procedures which would apply to the NAN constables, but which would address the same basic issues.

135During the debates, the issue of the exclusion of First Nations Constables from the definition of "police officer" in the PSA arose. On this point, the Solicitor General stated:

However, I want to talk to the last point (...) which dealt with the definition of "police officer". I think it is important, because it comes to grips with one of the concerns that you brought forward and we very much understand and believe in, which is that a police officer does not include a special constable or first nations constable.

That definition and the qualifications for a police officer have been drafted in such a way that there is a type of flexibility that you say is necessary for a first nations constable qualification.

I know we have this agreement that we are going to work again together to deal with policing and how policing can be governed or made responsible by yourselves. You know and I know that we are going to continue to work together with a series of things to deal with these issues. We have examples. You are aware of the Six Nations reserve. After a period of time and discussion, the Six Nations reserve outside Brantford is now an example of policing done by that reserve, totally governed by that reserve. We want to continue to do that with you.

I know you have in your own submission brought forward the point that the bill is important for its recognition in a separate section of first nations constables. We believe in that (....) this particular bill presents the framework so that we can build those types of agreements such as we have on the Six Nations reserve.

136First Nations Constables are expressly excluded from the definition of police officer under the PSA. The differential treatment is apparent on the face of the legislation. The issue is whether their exclusion is discriminatory.

137Proving discrimination requires more than simply identifying a distinction based on a prohibited ground of discrimination and a negative impact. The law is clear that not every distinction that creates a disadvantage is discriminatory. For differential treatment to be discriminatory, it must create disadvantage in the sense that it perpetuates historic disadvantage, prejudice or stereotyping. In many cases, a more nuanced inquiry is required to determine whether differential treatment based on a prohibited ground of discrimination results in substantive discrimination. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 91-94.

138The Tribunal heard evidence that there is no consensus in the First Nations community regarding the applicability of provincial policing legislation to First Nations policing. Many First Nations Governments believe their relationship is with the federal, not the provincial, government and they are concerned about the impact of provincial policing legislation on Aboriginal and treaty rights. This is reflected in the recent resolution of the Chiefs of Ontario on April 13, 2011:

Direct the First Nation Ipperwash Task Force to seek a legal opinion on the implications for a possible legislative basis, including but not limited to implications for First Nations laws and current First Nation policing services. Particular emphasis should be placed on identifying any negative impacts on inherent and Treaty rights.

139Chief Maracle testified that he believed there should be a legislative basis for First Nations policing. It is unclear whether this would involve including First Nations Constables in the PSA as a whole or enacting separate legislation dealing with First Nations policing. It may well be that a legislative basis would strengthen First Nations policing in Ontario. That recommendation was made in the Ipperwash Inquiry. However, the Inquiry also noted such legislation should not be mandatory on First Nations Governments or First Nations police services.

140First Nations Constables were excluded from the PSA out of respect for the self-government of First Nations communities. Their exclusion, in conjunction with the OFNPA, gives First Nations Governments autonomy over their police services, including how to deal with complaints against and the discipline of First Nations Constables in a culturally sensitive way. It promotes the equality of First Nations Governments and First Nations Constables and is the very antithesis of substantive discrimination.

141The argument advanced by the applicant is really one of formal equality. The applicant wants to be treated the same as non-First Nations Constables. This argument ignores the specific needs of First Nations communities and fails to recognize that for real equality to be achieved, differential treatment is often required.

142Council was the applicant's employer. As the employer, Council had the authority to discipline the applicant unconstrained by statutory limitations. Had Council disciplined the applicant, Commissioner Fantino may have felt it unnecessary to act. I do not know. I am not prepared to find that Commissioner Fantino would not have acted given the seriousness with which he viewed the applicant's conduct. That being said, had Commissioner Fantino acted in spite of Council's discipline, the applicant's case might have been very different. That is not what occurred. Although Council disagreed with Commissioner Fantino's decision to terminate the appointment, it remained steadfast that it would take no steps to discipline the applicant because it asserted the OPP was the applicant's employer. It was incorrect in this assertion.

143The lack of procedure and disciplinary options available to the applicant did not result from his exclusion from the PSA or the limited authority given to the Commissioner under s. 54(5). It resulted from Council's failure to develop the appropriate process for dealing with complaints against and the discipline of its First Nations Constables and its failure act as the applicant's employer.

144The exclusion of First Nations Constables from the PSA is consistent with the First Nations policing scheme as a whole and supports the right of self-determination by allowing First Nations to control their own police services. It is not discriminatory. As such, there is no need for me to decide whether First Nations policing in Ontario is a special program under section 14 of the Code.

DECISION

145Although the Tribunal heard a great deal of evidence, this case comes down to a very straightforward issue. The applicant made serious public allegations against the OPP, the RCMP and the SQ and refused to participate in the investigation into his conduct to explain his actions. The applicant challenged the actions of Commissioner Fantino because he believes he is a racist. It is unclear on the evidence whether he held that view of Commissioner Fantino at the time of his suspension/termination or whether he came to that conclusion later on. Be that as it may, my role is not to conduct an inquiry into Commissioner Fantino. My mandate is to determine whether there is evidence the applicant's race was a factor in Commissioner Fantino's decisions to suspend and terminate his appointment as a First Nations Constable. The applicant has failed to adduce sufficient evidence to support that such an inference being drawn. For these reasons, the Application is dismissed.