Joanne E. Mulcahy

The applicant police officer sought judicial review of an Ontario Civilian Police Commission (OCPC) decision that upheld his misconduct conviction for Unlawful or Unnecessary Exercise of Authority and ordered a new hearing for a Neglect of Duty charge.

The charges arose from an incident where the officer failed to remove handcuffs from a misidentified suspect after learning they were not the intended target.

The Divisional Court dismissed the application, finding the OCPC's decision reasonable.

The court upheld the OCPC's dismissal of a fresh evidence motion regarding post-decision communications, found no reversible error in the hearing officer's use of copied precedents, and agreed that the failure to release the misidentified suspect constituted an unlawful arrest.

The Court of Appeal for Ontario considered three applications related to a previous application by David Swaine, the respondent on a Crown appeal.

Swaine sought orders under sections 682 and 683 of the Criminal Code, including cross-examination of prosecuting Crowns and production of documents from the Executive Legal Officer of the Superior Court of Justice.

Two applications to intervene were brought by the Office of the Chief Justice of the Superior Court of Justice and the Ontario Superior Court Judges’ Association, both raising concerns about the administration of justice and judicial independence.

The Crown also sought a sealing order for future materials.

The Court granted leave to intervene to both proposed interveners and dismissed the Crown’s application for a sealing order, finding it inapplicable to the materials at issue.

The accused, a police officer, was charged with sexually assaulting a 17-year-old summer student in an elevator at the police headquarters in 2007.

The trial centered on credibility, as the accused completely denied the allegations and claimed he had no contact with the complainant.

Applying the W.D. framework, the court found the complainant's evidence compelling and rejected the accused's testimony, noting a pattern of downplaying his opportunity to commit the offence.

The accused was found guilty of sexual assault.

Boris Borissov, a Toronto Police Service officer, was sentenced for multiple offences including theft, fraudulent use of bank cards, trafficking stolen property, attempt to obstruct justice, unauthorized use of police computer systems, and possession of a motor vehicle obtained by crime.

The offences involved abusing his position to steal from vulnerable victims (a missing person and a deceased woman) and to assist criminal associates by providing internal police information and obstructing investigations.

The court emphasized denunciation and deterrence as primary sentencing objectives for police officers who breach public trust.

Despite mitigating factors such as good character, PTSD, and rehabilitation efforts, the court imposed a global sentence of 7 years' incarceration, finding the offences to be profound and repeated abuses of police power.

The appellant police officer appealed a disciplinary decision finding him guilty of unlawful exercise of authority and neglect of duty.

The charges arose from an incident where the appellant continued the arrest of an individual after learning the individual had been mistakenly identified as the target of an investigation, and failed to provide rights to counsel.

The Commission confirmed the finding of unlawful exercise of authority, holding that the continued arrest after the misidentification became known was unlawful.

However, the Commission revoked the finding of neglect of duty, finding the hearing officer erred in law by relying on his own experience rather than uncontradicted evidence regarding whose duty it was to provide rights to counsel.

A new hearing was ordered for the neglect of duty charge and the penalty.

The appellant police officer appealed a penalty decision ordering his resignation or termination after he pleaded guilty to discreditable conduct for stealing $175 from a member of the public.

The appellant argued the Hearing Officer erred in weighing mitigating factors, including his mental health diagnoses, expressions of remorse, and letters of support, and in applying the test for dismissal.

The Ontario Civilian Police Commission dismissed the appeal, finding the Hearing Officer reasonably concluded that the seriousness of the misconduct, the appellant's prior disciplinary record for dishonesty, and the resulting reputational damage to the police service outweighed the mitigating factors and justified dismissal.

Two police officers appealed findings of misconduct for unlawfully arresting two Black youths for assaulting police, and one officer appealed a finding of excessive force for punching a third youth.

The public complainants cross-appealed the finding that the officer was not guilty of discreditable conduct for pointing his firearm at them.

The Ontario Civilian Police Commission found the Hearing Officer erred in his analysis of arrest powers under the Criminal Code but substituted its own finding of misconduct for the unlawful arrests.

The Commission confirmed the finding of excessive force for the punch.

Finally, the Commission revoked the not guilty finding regarding the firearm, finding the Hearing Officer erred by failing to consider the Use of Force Regulation and improperly relying on his own experience, and substituted a finding of guilt for discreditable conduct.

The appellant police officer appealed a hearing officer's decision finding him guilty of misconduct for allegedly making racist and sexually suggestive comments to a civilian employee during a ride-along.

The Ontario Civilian Police Commission allowed the appeal and ordered a new hearing, finding that the hearing officer made fundamental errors in his credibility analysis.

Specifically, the hearing officer improperly shifted the burden of proof to the appellant by requiring him to explain why the complainant would fabricate the allegations, and unreasonably failed to consider the impact of subsequent friendly text messages between the parties on the complainant's credibility.

The applicants, two police officers charged with theft, obstruct justice, and perjury, applied for a stay of proceedings alleging a violation of their right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay was 41 months and 6 days.

The court deducted periods of defence delay, including an implicit waiver by one co-accused, and delay caused by an inaccurate estimate for the preliminary inquiry.

The court also deducted 10 months as an exceptional circumstance due to the COVID-19 pandemic backlog.

After deductions, the net delay for both applicants fell below the 30-month presumptive ceiling.

The application was dismissed.

The appeal concerns the openness of a police services board hearing regarding an extension of time for service of a disciplinary notice.

Following an investigation by the Ontario Independent Police Review Director into allegations of police misconduct in the investigation of the death of an Indigenous man, a retired judge appointed as a substitute decision-maker ordered that the extension hearing be held in camera.

The Canadian Broadcasting Corporation and First Nation complainants sought judicial review, arguing that the hearing should be open pursuant to section 2(b) of the Canadian Charter of Rights and Freedoms.

The Divisional Court upheld the in camera order, finding that the Dagenais/Mentuck test did not apply to administrative proceedings and that the statutory test under the Police Services Act was sufficient.

The Court of Appeal allowed the appeal, finding that while the Dagenais/Mentuck test does not apply to administrative proceedings, the Charter right to freedom of expression and freedom of the press recognized in Langenfeld applies to police services board meetings, and the presumption of openness under the Police Services Act must be considered in light of this Charter protection.

The applicant police service sought judicial review of a decision by the Ontario Civilian Police Commission, which had reduced a disciplinary penalty imposed on a police officer from an 18-month demotion to a 40-hour forfeiture.

The Commission had found that the Hearing Officer erred by punishing the officer twice for the same actions (insubordination and discreditable conduct) and by failing to ensure consistency of disposition with a comparator case.

The Divisional Court held that the Commission's decision was unreasonable, as it misapplied the Kienapple principle by failing to consider the lack of legal nexus between the offences, and misapprehended the facts of the comparator case.

The Commission's decision was set aside and the Hearing Officer's penalty was restored.

The applicant, a police officer, was found guilty of misconduct under the Police Services Act for unlawful arrest and excessive force during the G20 summit.

The Ontario Civilian Police Commission upheld the misconduct findings but reduced the penalty to a one-month demotion.

The applicant sought judicial review, arguing the Commission erred in its standard of review and treatment of the Hearing Officer's credibility findings.

The Divisional Court dismissed the application, finding the Commission's decision was reasonable and properly deferred to the Hearing Officer's factual and credibility determinations.

The applicant media organization sought judicial review of a decision to hold an in camera hearing for an extension of time application under s. 83(17) of the Police Services Act regarding police misconduct allegations.

The applicant argued the decision-maker erred by failing to apply the Dagenais/Mentuck test for open court proceedings.

The Divisional Court dismissed the application, finding that the standard of review was reasonableness and that the Dagenais/Mentuck test does not apply to administrative or procedural functions under the Police Services Act, which contains its own statutory framework for determining when hearings may be closed to the public.

The applicant, a police constable, sought judicial review of a decision by the Ontario Civilian Police Commission upholding his dismissal for unnecessary use of force against a person in custody.

The Divisional Court found that the Commission applied the correct standard of review and reasonably concluded that the penalty of dismissal was warranted despite some errors by the Hearing Officer.

The application for judicial review was dismissed.

A senior police officer with the Halton Regional Police Service pleaded guilty to breach of trust under section 122 of the Criminal Code for stealing oxycodone pills from a police evidence locker between August 27, 2015 and April 30, 2016.

The officer had developed an addiction to prescription opioids following multiple knee surgeries and work-related injuries, compounded by untreated PTSD and workplace harassment.

The court imposed a conditional discharge with three years probation, 240 hours of community service, and a victim fine surcharge, finding that exceptional circumstances—including the officer's addiction, mental health issues, early guilty plea, comprehensive rehabilitation efforts, and strong family and community support—justified a discharge despite the serious nature of the breach of trust offense.

The appellant police officer appealed a Hearing Officer's decision convicting her of Discreditable Conduct and ordering her resignation or dismissal.

The misconduct arose from an off-duty domestic incident where the appellant held a knife to her throat while holding her child and threatened to drive into a transport truck.

The appellant argued the Hearing Officer made numerous errors, including failing to properly consider her mental state and PTSD diagnosis.

The Ontario Civilian Police Commission dismissed the appeal, finding the Hearing Officer reasonably concluded the conduct was likely to bring discredit upon the police service and that the penalty of dismissal was appropriate given the severity of the conduct and the appellant's disciplinary history.

An appeal concerning jurisdiction to review a youth justice court decision regarding access to youth records under the Youth Criminal Justice Act.

The Toronto Police Service and a police officer appealed a youth court judge's decision denying access to records.

The Superior Court judge allowed the appeal and ordered production of records.

The Court of Appeal found that the Superior Court lacked jurisdiction to hear an appeal from the youth court decision under section 40(1) of the Courts of Justice Act, as the YCJA is federal legislation.

While certiorari under Part XXVI of the Criminal Code provides an alternative review route, the Court of Appeal declined to determine the appeal on the merits due to the procedural irregularities and set aside the Superior Court decision.

The appellant, a police officer, appealed a penalty decision ordering him to resign or be summarily dismissed following convictions for criminal harassment and breach of trust.

The misconduct involved stalking his former partner and conducting unauthorized police database searches.

The Ontario Civilian Police Commission reviewed the Hearing Officer's decision on a reasonableness standard.

The Commission found that the Hearing Officer appropriately weighed the penalty factors, including the egregious nature of the offences, the damage to the police service's reputation, and the appellant's limited prospects for rehabilitation.

The appeal was dismissed and the penalty of dismissal was confirmed.

The Crown prosecuted three accused on sexual assault charges arising from sexual activity in a hotel room after a night of drinking among off-duty colleagues.

The central issues were whether the complainant consented and whether she was incapable of consenting because of alcohol, an unknown drug, or both.

The court applied the reasonable doubt framework and the W.(D.) approach, finding serious reliability and credibility problems in the complainant's evidence, including inconsistencies with prior statements, video footage, text messages, and toxicology evidence.

Although sexual activity was established, the Crown failed to prove non-consent or incapacity beyond a reasonable doubt.

All three accused were acquitted.

The defendants were charged with sexual assault.

The Crown sought to admit expert toxicologist evidence regarding the effects of "date rape" drugs, consistent with the complainant's symptoms of incapacitation, despite no direct evidence of drug administration.

The defence objected, arguing irrelevance due to the absence of a drug charge and late disclosure of new testimonial details.

The court ruled the expert evidence admissible, finding it relevant to the issue of consent and the complainant's incapacitation, even without knowing the exact drug or its administration method.

The court noted that late disclosure, if remedied by adjournment, affects weight rather than admissibility.