Commissioner of the Ontario Provincial Police v. Silverman, 2000 CanLII 45059

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE

Appellant

-and-

CONSTABLE WAYNE D. SILVERMAN

Respondent

DECISION

Panel: Karlene J. Hussey, Member

G. Douglas Smith, Member

Hearing Date: Thursday, October 5, 2000

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

Website: www.ocpc.ca

Presiding Members:

Karlene J. Hussey, Member

G. Douglas Smith, Member

Appearances:

Kim Twohig, Counsel for Appellant

W. Michael Temple Q.C., Counsel for Respondent

Hearing Date: Thursday, October 5, 2000

1. This is a motion brought on behalf of the Respondent. At issue is the question of whether or not this Commission has jurisdiction to hear an appeal by the Commissioner of the Ontario Provincial Police with respect to a disciplinary sanction imposed by retired Superintendent Neil Sweeney (the “Hearing Officer”).

Background:

2. The Respondent is and was at all relevant times employed as a constable by the Ontario Provincial Police (the “OPP”). On July 13,1998 a discipline hearing was convened against him for six alleged counts of discreditable conduct.

3. On October 20, 1998, after receiving testimony from at least 17 individuals the Hearing Officer delivered a twenty-page judgment with a detailed analysis of the evidence and credibility of the various witnesses. The Respondent was convicted of the six counts of discreditable conduct and a penalty was imposed on December 15, 1998.

4. The Appellant filed an appeal dated January 12,1999 with this Commission pursuant to sections 70(1) and (4) of the Police Services Act, R.S.O. 1990, c. P. 15 as amended (the “Act”).

5. This appeal was held in abeyance pending a decision of the Ontario Superior Court Justice, Divisional Court (the “Court”). This concerned an application filed by the Appellant seeking to quash the penalty imposed by the Hearing Officer. On June 5, 2000 the Court dismissed the Appellant’s application and accordingly this matter was scheduled.

The Motion:

6. The preliminary motion before us raises the question of whether or not we have the jurisdiction to hear an appeal brought by the Commissioner of the OPP with respect to a disposition imposed by a Hearing Officer appointed by the same Commissioner.

7. The preliminary motion before us raises the question of whether or not we have the jurisdiction to hear an appeal brought by the Commissioner of the OPP with respect to a disposition imposed by a Hearing Officer appointed by the same Commissioner.

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.

(2) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a police officer.

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

8. Mr. Temple argued that section 70 does not grant the right of an appeal to an employer but only a police officer or a complainant.

9. It was further argued that the word “complainant” as used in section 70, does not include the Appellant. Mr. Temple referred the Commission to Section 56(2) of the Act. This section reads as follows:

56(2) The chief of police may also make a complaint under this Part about the conduct of a police officer.

10. Mr. Temple argued that the use of the word “also” in section 56(2) was used to distinguish the chief of police from a member of the public, as a complainant as set out in section 56(1) of the Act. Consequently it was argued that we should only consider the use of the word “complainant’’ in section 70 of the Act to include members of the public and not the employer as represented by the chief of police.

11. Mr. Temple referred us to the June 5, 2000 decision of the Court noted above. The gist of the Appellant’s application in that case was that while the Commissioner delegated the authority to the Hearing Officer to conduct a hearing and make a finding of misconduct this did not include the authority to impose a penalty. Mr. Temple argued that the reasons set out by the Court in dismissing the Appellant’s application should be applied to this motion before the Commission.

12. Mr. Temple also referred us to Godfrey v. Ontario Police Commission (1992), 1991 CanLII 7115 (ON CTGD), 5 O.R. (3d) 163 (Div. Ct.). This case was an application to quash a decision of this Commission to increase a disciplinary penalty. The arguments centered around the meaning of the word “vary” as set out in section 58(10)(c) of R.R.O. 1980, Reg. 791 under the Police Act, R.S.O. 1980 c. 38l as amended (the “former Act”).

13. Mr. Temple acknowledged that this regulation was made pursuant to the provisions of the former Act which has been substantially amended. However, he suggested that the reasons set out by Justice Watt on behalf of the Court in this case are still applicable to the current disciplinary regime. In particular he referred us to page 180 of the decision where Justice Watt stated:

It would be an anathema to the disciplinary process to afford the employer the right to impeach its own decision as to discipline, as it would allow the third-party adjudicator to assume the role of management to impose a more severe penalty than that imposed in the first instance.

14. Mr. Temple also referred us to the case of Trumbley and Fleming (1986 ), 1986 CanLII 146 (ON CA), 55 O.R. (2d) 570 (Ont. C.A.) which stands for the proposition that section 11(d) of the Canadian Charter of Rights and Freedoms does not apply to police disciplinary proceedings as such proceedings are neither criminal or penal in nature. He notes that, while such proceedings may be formal, they are purely an internal administrative process that is analogous to a discipline matter in ordinary employer-employee relationships.

Appellant’s Position:

15. Ms. Twohig on behalf of the Appellant argued that the Appellant does have the right to appeal sentence imposed by the Hearing Officer. We were cautioned that Godfrey v Ontario Police Commission was decided on the basis of the former Act. Ms. Twohig argued that this case turned on the interpretation of the word “vary” in a regulation that has since been repealed.

16. Furthermore, it was argued that the discipline regime under the former Act differs substantially from the current Act. Ms. Twohig noted that, under section 70 of the new Act, the Commission now has the power to increase a penalty imposed by a Hearing Officer. As a result, she asserts that the decision in Godfrey is no longer relevant.

17. Ms. Twohig pointed out that there is no definition in the present Act for the term “complainant”. As a consequence, she suggested that we must look to section 56 to determine who is a “complainant” for the purpose of initiating the appeal under section 70. Ms. Twohig pointed out that section 56(2) clearly states that “the chief of police may also make a complaint under this Part about the conduct of a police officer”. As such, she argued that the chief of police must be a complainant within the meaning of the Act with the right of appeal pursuant to section 70.

18. Ms. Twohig disagreed with the position taken by Mr. Temple that the use of the word “also” in section 56(2) distinguishes the chief of police from any member of the public as a complainant. Ms. Twohig argued that the word “also” should simply be construed that the chief of police is a complainant in addition to a member of the public.

Decision:

19. This motion raises an interesting and novel point of law.

20. The Act was substantially amended on November 27, 1997 by S.O. 1997, c.8. Prior to that time the question of whom had the status to initiate a disciplinary appeal was well settled.

21. Appeals from disciplinary decisions arising from Part V “internal” complaints were to this Commission. Section 63(8) use to state:

68(3) The police officer may appeal to the Commission from the board’s decision by serving a notice of appeal on the Commission, the board and the chief of police within thirty days of receiving notice of the decision.

22. Appeals from disciplinary decisions arising from Part VI “public” complaints were to the Board of Inquiry. Section 92(1) of the Act use to state:

92(1) If a penalty is imposed on a police officer after disciplinary hearing under section 60 that was conducted as a result of the complaint, he or she may appeal to a board of inquiry by serving a notice of appeal on the Commissioner, the chair of the panel and the chief of police within 15 days of receiving notice of the decision.

23. In neither case, did a Chief of Police or Commissioner of the OPP Have the status to initiate a disciplinary appeal. The amendments to the Act consolidated Part V and VI of the Act and vested all disciplinary appeals in this Commission. The question for us is whether or not these changes created a new right of appeal for chiefs of police or the Commissioner of the OPP.

24. In order to make this determination it is necessary to examine the disciplinary provisions of the amended Act as a whole. It is our duty to endeavor to ascertain the intention of the legislature by reading and interpreting the language that the legislature has selected for the purpose of expressing its intention.

25. Under the new Act it is the responsibility of the Commissioner of the OPP to conduct investigations into allegations of misconduct or unsatisfactory work performance on the part of her officers (section 64(1)). During the course of such an investigation the Commissioner has the power to suspend the officer in question (section 67(1)).

26. If the result of the investigation discloses serious misconduct or unsatisfactory work performance the Commissioner must hold a disciplinary hearing (section 64(7)). The Commissioner designates the hearing prosecutor (section 64(8)). The Commissioner can conduct the hearing herself or delegate this responsibility to a senior police officer or former senior police officer (section 76(1)).

27. Indeed, in this case the Hearing Officer’s authority to act arose from an authorization signed by the Appellant dated June 8, 1998. It read:

AUTHORIZATION - FORCE ADJUDICATOR

Pursuant to Section 76, subsection 1 of the Police Services Act, I hearby authorize Superintendent (Retired) NEIL SWEENEY, to exercise any of the powers and perform any of the duties of the Commissioner described therein, for a hearing under subsection 64(7) of P/C. W.D. Silverman.

28. At the conclusion of a disciplinary hearing the Commissioner, or her delegated hearing officer can impose a range of sanctions (section 68).

29. As noted above, all appeals of disciplinary decisions are now to this Commission. Section 70(1) of the Act reads

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

30. The Act however does not define “complainant” and in particular does not define who is a complainant for appeal purposes.

31. We agree with the submissions of both Mr. Temple and Ms. Twohig that the only assistance that the Act provides in determining who is a complainant is the wording as set out in sections 56(1) and (2). It is clear from the wording of these provisions that members of the public and a chief of police may make a complaint about the conduct of a police officer. That being said, can we then simply assume that both members of the public and the chief must have the authority to initiate an appeal of a disciplinary decision under section 70?

32. It is our view that such a conclusion would be too simplistic. One must consider all of the sections pertaining to discipline as set out in the new Part V to determine whether this interpretation makes sense. Does interpreting the chief of police as a complainant for the purposes of section 70 of the Act fit into the context of the discipline procedure, or does it lead to absurdity? A construction that makes nonsense of a section must be avoided if the language will permit otherwise.

33. Although section 56(2) permits the chief of police to make a complaint about the conduct of a police officer, it is clear that the legislature distinguished this type of complaint from that of a member of the public as set out in section 56(1). The word “also” in section 56(2) clearly intended this section to be separate from the general complaint process as set out in Part V.

34. We are of the opinion that the wording of other sections of Part V of the Act can only lead to the conclusion that members of the public and the chief of police cannot both be “complainant” within the context of all aspects of the discipline procedure. In other words, every time the word “complainant” appears it Part V it is not possible to read in “chief of police”.

35. For example, section 56(3) of the Act states:

56(3) A complainant may withdraw his or her complaint at any time, but if the chief of police or board had begun holding a hearing in respect of a complaint, the complainant shall not be withdrawn without the consent of the chief of police …

36. Section 2 of the Act defines “chief of police” to also include the Commissioner of the OPP. In the context of section 56(3) it would be an absurdity if the Commissioner is considered a complainant in the same context as a member of the public. This would mean that the Commissioner could only withdraw her complaint after first obtaining her own consent.

37. Similarly, in attempting to interpret sections 56(5) of the Act if the Commissioner is considered as the complainant for the purposes of these sections.

38. Section 56(5) reads:

56(5) The chief of police or board may continue to deal with a complaint after the complaint is withdrawn, if the chief of police or board, as the case may be, considers it appropriate to do so.

39. It would be illogical to assume that the Commissioner is a complainant for the purposes of this provision. To do so would mean that the Commissioner may continue to deal with a complaint after she has withdrawn the complaint provided she considered it appropriate to do so.

40. Clearly, for these sections to make any sense whatsoever they must be read with the interpretation that the term “complainant” can only mean a member of the public.

41. Section 64 of the Act sets out the procedure to be followed by the Commissioner upon receipt of a complaint. Sections 64(1)(2)(3)(4) and (5) all deal with the procedures to be followed in the investigation of a complaint. Section 64(6) deals with the procedure to be followed if the Commissioner concludes following the investigation that the complaint is unsubstantiated. This section reads as follows:

64(6) If, at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the opinion that the complaint is unsubstantiated, the chief of police shall take no action in response to the complaint and shall notify the complainant and the police officer who is the subject of the complaint, in writing, together with a copy of the written report, of the decision and of the complainant’s right to ask the Commission to review the decision within 30 days of receiving the notice.

42. This section also leads to an absurdity if we were to interpret the Commissioner as the complainant. The Commissioner would then be required to serve herself with her own decision and then notify herself of her right to appeal her decision to this Commission. Again, these provisions only makes sense if the word complainant is interpreted as being a member of the public.

43. Finally, as noted earlier, section 64(7) sets out the provisions of holding a hearing if the Commissioner considers it warranted following the investigation of the complaint. Section 64(7) reads as follows:

64(7) Subject to subsection (11), if at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the opinion that the police officer’s conduct may constitute misconduct, as defined in section 74, or unsatisfactory work performance, he or she shall hold a hearing into the matter.”

44. This section would lead to an illogical conclusion if we were to determine that the Commissioner was a complainant for the purposes of section 70. It flies in the face of common sense and any concept of natural justice or procedural fairness that a Commissioner who sat as a hearing officer pursuant to section 64(7) had the right to appeal her own decision. As Justice Watt noted in the Godfrey case at page 181: “It would be illogical in the one case as it would be in the other to permit the employer to appeal his or her own determination of a fit penalty.”

45. It, in our opinion, makes no difference to this logic whether or not the Commissioner conducts the hearing, or delegates her authority pursuant to section 76(1) to a Hearing Officer.

46. In our view had the legislature intended to create such a new and significant statutory right of appeal with the passage of S.O. 1997, c.8 it would have used clear and express language to that effect. In our opinion this is not the case.

47. For these reasons we find that the Commissioner of the Ontario Provincial Police is not a complainant within the meaning of section 70 the Act. Accordingly this Commission does not have the jurisdiction to hear the appeal by the Appellant.

48. The Respondent’s motion to strike the appeal is granted.

DATED THIS 18TH DAY OF DECEMBER, 2000.

Karlene J. Hussey G. Douglas Smith

Member, OCCPS Member, OCCPS