Memis Sipar v. Detective John Schertzer et al., 1999 CanLII 31608

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended

BETWEEN:

MEMIS SIPAR

Applicant

-and-

DETECTIVE JOHN SCHERTZER, DETECTIVE NED MAODUS, DETECTIVE CONSTABLE JONATHAN REID, DECTECTIVE CONSTABLE GREGORY FORESTALL, DETECTIVE CONSTABLE JOSEPH MICHED AND DETECTIVE CONSTABLE STEVEN CORREIA

Respondents

-and-

CHIEF DAVID BOOTHBY

Intervener

DECISION

Panel: Murray W. Chitra, Chair G. Douglas Smith, Member

Hearing Date: July 27, 1999

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, Ontario M7A 2T3 Tel: 416-314-3004 Fax: 416-314-0198

Presiding Members: Murray W. Chitra, Chair G. Douglas Smith, Member

Appearances: Moishe Reiter, Q.C., Counsel for the Applicant Harry G. Black, Q.C., Counsel for the Respondents George S. Monteith, Counsel for the Intervenor

Hearing Date: July 27, 1999

1This is an application for leave to appeal under section 70(4) of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the "Act").

Background:

2On October 28, 1997, the Applicant and another man were arrested by members of the Toronto Police Service attached to the Central Field Command Drug Squad. The Applicant was held in custody for a number of hours at 53 Division. While there he was permitted to speak to his lawyer, Mr. Moishe Reiter, by telephone. However, a subsequent request for direct contact was denied.

3The Applicant's vehicle was seized. The car and three locations with which he was associated were searched. No drugs were found. The Applicant was released from custody the same day. No charges were brought against him.

4On November 7, 1997, Mr. Reiter wrote a letter to Chief David Boothby concerning this incident. Subsequently, a Public Complaint Form (under former section 77 of the Act) was prepared.

5An internal investigation was initiated. The specific allegations in question were that:

• the Applicant had been denied the opportunity to speak personally to his lawyer; and
• his home had been searched without a warrant being obtained

6At the conclusion of the investigation disciplinary proceedings were initiated against the Respondents.

7On October 2, 1998 Superintendent Terrence Kelly (the "Hearing Officer") dismissed the charges against the Respondents. Essentially, this was based on a finding that the Notice of Hearing had not been served on the officers within six months of the original allegations coming to the attention of the Chief as required by section 69(18) of the Act.

8On November 10, 1998 Mr. Reiter filed "formal notice of appeal" of this decision with the Ontario Civilian Commission on Police Services (the "Commission").

9The relevant sections of the Act are 70(1), (3) and 4. They state:

70(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held under subsections 64(7) or 65(9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

(3) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a complainant if the appeal is from a finding that misconduct or unsatisfactory work performance is not proved on clear and convincing evidence.

(4) The Commission may hold a hearing, if it considers it appropriate, upon receiving a notice under subsection from a complainant with respect to an appeal other than an appeal described in subsection (3).

10Basically, these sections give a public complainant the right to appeal a decision that a finding of misconduct has not been proved. All other appeals require the approval of the Commission.

11Accordingly, the purpose of this proceeding is to determine whether or not leave to appeal should be granted to the Applicant to contest the October 2, 1998 decision of the Hearing Officer.

Preliminary Motions:

12At the commencement of this proceeding, Mr. Black on behalf of the Respondent's raised three preliminary concerns.

13First, he stated that the chief of police was not a proper party to an application for leave to appeal. As such, he suggested that we should not hear arguments from Mr. Monteith.

14Second, he suggested that the Applicant had not filed his appeal within 30 days as required by section 70(1) of the Act. Further, he stated that the Commission has no authority to extend this time period. Accordingly, he argued that we have no jurisdiction to consider this application.

15Finally, he stated that the Applicant failed to serve the Respondents with proper notice under section 8.1 of the Commission's Rules of Practice. He stated that this failure goes to our jurisdiction to proceed.

16The first two matters are the subjects of this decision.

Decision:

17This case raises a number of novel issues. It is the first formal request for leave to appeal to reach the Commission since the proclamation of amendments to the Act on November 27, 1997 by S.O. 1997, c.8.

18Prior to this, the disciplinary scheme involving police officers and public complainants was quite different. Under that scheme disciplinary hearings arising from a public complaint either took place before a Hearing Officer appointed by the chief of police or a Board of Inquiry. The final arbiter of such matters was the Police Complaints Commissioner.

19The Board of Inquiry performed two roles. It conducted original disciplinary hearings at the direction of either the chief of police or Police Complaints Commissioner. As well, it heard appeals on the record from original disciplinary hearings conducted by Hearing Officers appointed by the chief.

20Section 95 provided that:

95(1) The parties to a hearing are:

(a) the complainant; (b) the police officer; (c) the Commissioner; and

(d) the chief of police, in the case of an appeal by the police officer.

21Further, section 95(2) vested in a Board of Inquiry the authority to "add parties at any stage of the hearing on the conditions it considers proper".

22Generally, the carriage of all proceedings before a Board of Inquiry rested with counsel appointed by the Police Complaints Commissioner. The exception was appeals by police officers from decisions by Hearing Officers. The carriage of such appeals rested with the police officer.

23Changes to the Act abolished the Office of Police Complaints Commissioner and Board of Inquiry. Now all disciplinary proceedings take place before Hearing Officers appointed by chiefs of police. Appeals are to the Commission.

24Currently, section 69(3) of the Act provides:

69(3) The parties to the hearing are the prosecutor, the police officer who is the subject of the hearing and, if the complaint was made by a member of the public, the complainant.

25Prosecutors are appointed by chiefs under either section 64(8) or (9).

26Section 70(1) of the Act deals with the question of appeals. Section 70(1) states that appeals may be initiated by either a police officer or complainant.

27However, no clear statement is made about who the parties to an appeal are to be.

28Some assistance in this regard can be found in the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 as amended and the Commission's Rules of Practice. Section 5 of the Statutory Powers Procedures Act states:

5. The parties to a proceeding shall be the persons specified as parties by or under the statute under which the proceeding arises or, if not so specified, persons entitled by law to be parties to the proceeding.

29Further, section 25.1 (1), (2) and (3) of the same Act provide:

25.1(1) A tribunal may make rules governing the practice and procedures before it. (2) The rules may be of general or particular application.

(3) The rules shall be consistent with this Act and

other Acts to which they relate.

30Section 5.1 of the Commission's current Rules state:

5.1 The parties to an appeal include,

(a) the police officer;

(b) the prosecutor at the disciplinary hearing being appealed from; and

(c) the complainant, if the complaint was made by

a member of the public.

31Accordingly, the Rules contemplate Mr. Monteith participating in this proceeding as a party.

32While the Act is not as clear as it might be in this regard, we believe that the participation of the prosecutor as a party to an appeal is both correct and proper. Certainly it makes sense that, unless otherwise specifically excluded by statute, that the parties to an initial hearing are lawful parties to any appeal. A rule to this effect is not inconsistent with the Act.

33To find otherwise would produce an absurd result. It would mean that in those cases where there was no public complainant that the only party to an appeal would be a police officer. There would be no party to respond. This makes no sense. Accordingly, we are prepared to permit Mr. Monteith to participate as a party, in the capacity as counsel to the chief's appointed prosecutor.

34The second issue to be determined by this Commission is whether the appeal of the decision of the Hearing Officer was made within the 30 day limitation period as set out in section 70(1) of the Act. Section 70(1) states:

70(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held under subsection 64(7) or 65(9) appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

35Mr. Black on behalf of the Respondents argued that the Commission has no authority to extend the 30 day period as set out in section 70(1) of the Act. Neither Mr. Reiter nor Mr. Monteith on behalf of the Applicant disagreed with the position taken by Mr. Black.

36We were urged, however, by Mr. Monteith that if the fact situation as to the date of the service of the appeal on the Commission was unclear that we should err in favour of allowing the appeal as to do otherwise would deny the Applicant of his right of appeal.

37We are in agreement with the position taken by Mr. Black that the appeal of the decision of the Hearing Officer must be served on this Commission within 30 days of receipt of the decision. We further agree that this Commission has no authority under the Act to extend the 30 day appeal period as set out in section 70(1).

38Formerly section 68 of the Act read as follows:

The ...Commission may grant an extension of the time provided for giving it notice of appeal before or after the expiry of the time, and may give direction in connection with the extension.

39This section was repealed with the proclamation of section 35 of the Police Services Amendment Act, S.O. 1997, C. 8. Under the new disciplinary scheme set out in Part V of the Act all appeals are now made directly to the Commission pursuant to section 70(1). Neither this section nor any other section of the Act gives authority to this Commission to extend the time for appeal as formerly allowed by section 68, Hegney and Toronto Police Service (January 29, 1998, OCCPS). Consequently this Commission must decide on the evidence before it whether the Appeal was served on the Commission within the 30 days.

40The following facts are not in contention:

1. The Hearing Officer's decision was rendered on October 2nd, 1998.
2. Mr. Reiter served the Commission on November 10th, 1998 a written notice of appeal by hand delivering same to the Commission's offices at 25 Grosvenor Street, Toronto, Ontario.

41The issue in dispute is the date that the Appellant received notice of the decision of Superintendent Kelly.

42In order to assist us in determining this question we received evidence. This included oral evidence from Staff Inspector Dalziel who was the Prosecutor assigned to the original hearing. As well, we received an affidavit from Ms. Naomi Bruni, a legal assistant to Mr. Reiter.

43Staff Inspector Dalziel testified that to the best of his recollection he received a copy of the decision of the Hearing Officer either on October 2nd or October 5th, 1998. He further testified that upon receiving the decision he spoke to Mr. Reiter by telephone and advised him of the decision. He also testified that following his telephone conversation with Mr. Reiter that he believed that he sent a copy of the decision by facsimile transmission (fax). Staff Inspector Dalziel admitted on cross-examination that he did not have a fax confirmation sheet or cover sheet to confirm the exact time and date of the fax transmission. Furthermore he confirmed on cross-examination that his recollection was based primarily on his usual practice that he followed upon receipt of decisions.

44Ms. Naomi Bruni's affidavit affirmed that at all material times she was the person responsible for the receipt of a filing of all correspondence received and sent by or on behalf of Mr. Reiter. In her affidavit Ms. Bruni swears that she has reviewed all correspondence with respect to this matter.

45She swears that her file contains a letter from the Hearing Officer dated October 5, 1998 and date stamped as received on October 13, 1998. Furthermore she swears that there is a letter dated October 7, 1998 signed by Staff Inspector Thomas Dalziel, date stamped as received on October 14, 1998. The letter from the Hearing Officer contains the notice of the results of the discipline proceeding. The letter from Staff Inspector Dalziel did not purport to contain a copy of the decision but only summarized the results as "dismissed". In his testimony Staff Inspector Dalziel admitted that his letter dated October 7, 1998 was not intended to be the notice of the decision as contemplated by section 70(1) of the Act.

46We do not believe that Staff Inspector Dalziel's telephone conversation with Mr. Reiter, either on October 2nd or October 5th, 1998 was notice of the decision of the Hearing Officer. It is our view that a notice of the decision must include a written copy of the decision. Section 77(1) of the Act requires notice to be served personally, by regular letter mail, by electronic transmissions, by telephone transmission of a facsimile, or by some other method that allows proof of receipt. We do not accept Mr. Black's contention that this section allows a verbal communication that can then by proven by sworn testimony. A verbal communication could be a synopsis of the decision or could even be a faulty or incorrect interpretation of the decision. A potential Appellant surely must have a written copy of the decision if he/she is to make an informed appeal to the Commission regarding same.

47Furthermore section 77(1) of the Act makes it clear that the method of service must allow for "proof of receipt" of the notice. We cannot accept that "proof of service" is established by Staff Superintendent Dalziel's belief that he faxed a copy of the decision to Mr. Reiter, based only on his normal practice.

48In our view, the correspondence of the Hearing Officer dated October 5, 1998, along with a copy of his decision was proper notice.

49Section 77(2) of the Act states:

"77(2) Service by regular mail shall be deemed to be received by the person, board or Commission on the fifth day after it is mailed unless the person, board or Commission establishes that the person, board or Commission did not, acting in good faith, through absence, accident, illness or other cause beyond the person's or Commission's control, receive the notice on that day."

50Although the Hearing Officer's letter is dated October 5th, 1998 we have no evidence on the date that it was mailed. We therefore have no firm date from which to calculate the 5 day period as set out in section 77(2) of the Act.

51The only compelling evidence before this Commission in establishing the date that the Appellant received the notice of the decision is the sworn affidavit of Naomi Bruni, confirming that Superintendent Kelly's letter dated October 5th, 1998 was received on October 13th, 1998.

52We are therefore satisfied that the actual notice of the decision was received by Mr. Reiter on October 13th, 1998. As a result the notice of the appeal served by Mr. Reiter on this Commission of November 10th, 1998 was within the 30 day limitation period set out in section 70(1) of the Act.

53Accordingly, the second motion is denied.