McLean (Re), 2019 ONMIC 2

RegioNAL MUNICIPALITY OF DURHAM integrity commissioner, GUY GIORNO

Citation: McLean (Re), 2019 ONMIC 2 Date: March 26, 2019

REPORT ON COMPLAINT

Notice: Municipal Integrity Commissioners provide investigation reports to their respective municipal council and, in most cases, make recommendations for imposition of penalty or other remedial action to the municipal Council. Therefore, reference should be made to the minutes of each particular municipal council to obtain information about the particular council's consideration of each report. When possible, a link to the relevant municipal council minutes is provided.

Please find below the link to the corresponding council decision. https://calendar.durham.ca/meetings/Detail/2019-04-24-0930-Regional-Council-Meeting/5b5d43c7-d1ca-489a-aced-aa41010da222 (see minutes of April 24, 2019, Motion 150)

TABLE OF CONTENTS

THE COMPLAINT 3

SUMMARY 3

BACKGROUND 3

PROCESS 5

POSITIONS OF THE PARTIES 6

Complainant’s Position 6

Respondent’s Position 7

ANALYSIS AND FINDINGS 7

SCOPE OF MY JURISDICTION 9

CONCLUSION 9

CONTENT 9

THE COMPLAINT

1. The Complainant alleges that Regional Councillor Bill McLean (the Respondent) breached section 7.2 of the Council Code of Conduct.

SUMMARY

2. The Complainant is a decorated former police sergeant (Durham Regional Police) who suffers from post-traumatic stress disorder (PTSD) that is treated with cannabis. He complains that the Respondent made a joke about the Complainant’s medical cannabis use.

3. The Respondent acknowledges making the joke. He immediately apologized for it. The apology was insufficient, however, to resolve this complaint. Attempts to reach a settlement were unsuccessful. The Complainant is an advocate for First Responder PTSD who hopes to see the Code of Conduct process continue to a final, public report in order to draw attention to this important social issue.

4. In all of the circumstances, I have concluded that the appropriate response is to present this report to Regional Council without making a finding of contravention.

BACKGROUND

5. The Complainant is a decorated former police sergeant (Durham Regional Police) who suffers from post-traumatic stress disorder (PTSD) that is treated with cannabis. He complains that the Respondent made a joke about the Complainant’s medical cannabis use.

6. The Complainant served with the Durham Regional Police Service for 31 years, retiring as a patrol sergeant. During a distinguished policing career, which began at age 18, he was decorated and promoted several times.

7. The Complainant suffers PTSD and has been the subject of a medically supervised treatment program involving cannabis. He has become a public advocate for First Responder PTSD sufferers and for the medical use of cannabis.

8. The Complainant presented background material on his situation and on First Responder PTSD. To accurately represent his perspective, I am quoting from some of the material he provided:

“For me, ensuring cannabis is treated as a safe (when used as directed) non-toxic and affordable medicine for first responders and their health care benefits providers and a gateway to better health, is something I pledge to demonstrate during every intelligent interaction. My health was absolutely headed for disaster; for me to say I am on public speaking tours to share the complete healing capabilities for so many, is my new calling.

“My profession insisted that I serve justice. I only ask now that after more than three decades of sacrifice, that same justice not allow me to sit alone in front of the very organization I grew up with, expected to remain silent.

“First responders sell their souls to the profession to one degree or another; my function is to ensure a means to obtain a full refund is both available and recommended. It absolutely saved my life; it is saving others too, I assure you, I represent several in my organization who have chosen to remain anonymous, and I absolutely respect that right. I speak for them all regardless, including those we have lost in the line of duty. This is my way of not forgetting them, to assure them I am working very hard to prevent their situation from repeat, which we are seeing in epidemic proportions”

9. As part of his work to increase public awareness and to educate, the Complainant attends police services board meetings. In his words:

“I do however have to insist on making appearances at Police Services Board meetings, the same Board that is fully aware of my situation, to ensure that all stakeholders in the equation are fully educated and informed as to my success.”

10. The Respondent was Vice Chair of the Police Services Board. On October 16, the Complainant attended a Board meeting. He met the Respondent.

11. After the encounter with the Complainant, the Respondent remarked, to another Board member:

“I didn’t know whether to say ‘hello’ or ‘hi(gh).’”

12. The Complainant overheard the comment. He recognized that this was a joke, but felt that it stigmatized those using cannabis as medical treatment for First Responder PTSD. He said to the Respondent and the other, “There’s stigma.”

13. That same day, the Complainant told the Board’s Executive Director what happened, and the Executive Director told the Board Chair, who then instructed the Executive Director to inform the Respondent. The Respondent composed a written apology which was sent to the Complainant the next day, October 17:

“Thank you [Executive Director], looking back I can see how this comment was insensitive and was not meant to diminish or insult anyone who is using medical marijuana for any reason. I am a strong supporter of assisting and helping those with PTS.

“My apologies to the Sgt for my insensitive remark and I know that those suffering from PTS need all the support we can give them.

“Once again if the Sgt would like me to call him or meet him for a more formal apology I am available.”

14. The Complainant subsequently filed this Code of Conduct complaint.

PROCESS

15. In operating under the Code, I follow a process that ensures fairness to both the individual bringing a complaint (Complainant) and the Council Member responding to the complaint (Respondent). The fair and balanced process I normally use is consistent with the requirements of the Code. The process includes the following elements:

• The Respondent receives notice of the complaint and is given an opportunity to respond.

• The Respondent is made aware of the Complainant’s name. I do, however, redact personal information such as phone numbers and email addresses.

• The Complainant receives the Respondent’s response and is given an opportunity to reply.

• After the reply stage, I often accept supplementary communications and submissions from the parties, but only on the condition that parties generally get to see each other’s communications with me. I do this in the interest of transparency and fairness.

16. On October 24, the Complainant informed me that he had initiated a request for an integrity commissioner investigation.

17. I waited for the actual complaint. When it did not arrive, I emailed the Complainant, November 7, to inquire about the status.

18. On November 9, the Complainant completed the Complaint Form/Affidavit required by the Complaint Procedure. The Complaint Form/Affidavit was not, however, sent to me at that time.

19. I received the complaint form, December 19. December 19 is therefore deemed to be the official complaint date.

20. Owing to the holiday, I did not notify the Respondent until January 3.

21. The Respondent provided a preliminary response, January 4, with additional material to follow. I received the additional material January 14.

22. I interviewed both the Complainant and the Respondent.

23. The Complainant sent me additional material.

24. The Complainant has also copied me on correspondence related to other matters such as pension and WSIB, but because these fall outside an integrity commissioner’s jurisdiction I received them for information only.

25. The proceedings of the October 16 Police Services Board meeting were reviewed.

26. Section 5.1 of the Complaint Procedure expressly provides that, “efforts may be made to achieve an informal resolution. The formal Complaint will be held in abeyance during such time.”

27. I paused the proceeding to give the parties an opportunity to explore the prospect of a resolution. A resolution was not possible.

POSITIONS OF THE PARTIES

Complainant’s Position

28. He appreciates the need for moments of levity, but the Complainant feels the comment was inappropriate and made at the expense of his presence at the Board meeting.

29. He notes that he is completing the second year of his PTSD treatment and is working to defeat both the stigma of the disease (First Responder PTSD) and the “insidious stigma” surrounding an effective medicine (medical cannabis) which saved his life.

30. The Complainant says that while the comment may seem innocent on the surface, it is not, as evidenced by the “outright mockery” that has greeted his requests for help from public officials.

31. He says the comment is unprofessional and, though it may not seem injurious, toxic. He felt that the comment caused “a re-injury at the hands of the Board I trusted [with] my care and recovery.”

32. In the Complainant’s own words:

“Today’s headlines describe all too well the virtual epidemic which is first responder PTSD. This incident is representative of the very ignorance feeding the stigma which threatens a truly effective treatment.

“My efforts here are also for those in my care as a peer supporter on this very subject, those first responders we have lost to suicide, my family, and those who work every day to guard the well-being of our first responders.”

Respondent’s Position

33. The Respondent is himself a decorated, former police officer, having served 31 years with the Toronto Police Service and received more than 57 letters of praise, commendation and recognition from supervisors and citizens.

34. The Respondent admits making an uncalled-for remark. He points out that he immediately apologized for the statement.

35. He also notes that he immediately offered to speak with the Complainant to give his personal apology as well as a public one at a police services board meeting.

36. The Respondent states that he has been a very active outspoken champion for PTSD both within the police service and with the regional EMS and fire services.

37. While he is no longer a member of the police board the Respondent says he is still a strong supporter for those with PTSD. He realizes that the comment was in poor taste and insensitive but says it certainly was not meant to belittle the Complainant or his cause.

ANALYSIS AND FINDINGS

38. Section 7.2 of the Code of Conduct reads as follows:

“Every member shall:

“A) not use indecent, abusive or insulting words or expressions toward any other member, any member of staff or any member of the public; and

“B) not speak in a manner that is discriminatory to any individual, based on that person's race, ancestry, place of origin, creed, gender, sexual orientation or gender identification, age, colour, marital status, or disability.”

39. Subsection B) covers discrimination on the basis of a prohibited ground under the Human Rights Code. I agree that First Responder PTSD is a disability and that discrimination on the basis of PTSD would contravene subsection B). According to human rights jurisprudence, however, a single comment (especially one made in passing and in jest, or one followed by an immediate apology) does not constitute discrimination, except in limited circumstances that I find do not arise here.¹

40. That leaves subsection A), which prohibits indecent, abusive or insulting words or expressions. I am not sure that my analysis of subsection A) is necessary. The Respondent has already said that the comment was insensitive, uncalled for and in poor taste. The Respondent quickly apologized. I do not feel that it is necessary for me to characterize the comment when the Respondent has already done so.

41. The Complainant acknowledges the apology. The Complainant acknowledges the Respondent’s position that the comment should not have been made. The Complainant wants the complaint to proceed to its conclusion because he is an advocate for those afflicted with First Responder PTSD and he feels a public report will increase awareness of the disease and the role of medical cannabis as a cure.

42. It has taken me a while to arrive at a conclusion. On the one hand, the purpose of the complaint process is to deal with alleged contraventions of the Code of Conduct, not to be used as a vehicle to highlight public policy issues, no matter how important. On the other hand, it cannot be said that the concern was frivolous, since the Respondent himself has acknowledged that the comment was uncalled for, and has apologized.

43. On the one hand, since the Respondent has already apologized, it is hard to see what further remedy would be appropriate. On the other hand, unless the complaint is frivolous, vexatious or made in bad faith (which I do not find) or the complaint is abandoned (which did not occur) then the Complainant has a right to pursue the matter to conclusion.

44. In the circumstances, I believe the best approach is to report to Regional Council, setting out the relevant circumstances. I make no finding of contravention, as this would serve no purpose. However, the content of the report speaks for itself and is a now a matter of public record.

SCOPE OF MY JURISDICTION

45. As I explained to the parties, I am only able to consider the Code of Conduct complaint. I have no jurisdiction over other issues, such as pension, WSIB, Police Services Act, costs of medical care, and relations between the Complainant and the Durham Regional Police Services Board. This report does not address any of those topics.

CONCLUSION

46. I make no finding of contravention as it would serve no purpose. The content of this public report speaks for itself.

CONTENT

47. Subsection 223.6(2) of the Municipal Act states that I may disclose in this report such matters as in my opinion are necessary for the purposes of the report. All the content of this report is, in my opinion, necessary.

Respectfully submitted,

Guy Giorno

Integrity Commissioner

Regional Municipality of Durham

March 26, 2019

Footnotes

1. 1Seguin v Labourers International Union of North America, Local 527, 2012 HRTO 1103, at para. 28; Way v. Coalition Against Psychiatric Assault, 2011 HRTO 1234, at para. 39; Conway v. St. Joseph’s Healthcare Hamilton, 2015 HRTO 1232, at paras. 17-18.