Bradley Christian v. Constable Dean Grbich and Aylmer Police Service, 2001 CanLII 57508

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED

BETWEEN:

BRADLEY CHRISTIAN

Appellant

-and-

CONSTABLE DEAN GRBICH and AYLMER POLICE SERVICE Respondents

DECISION

Panel: Frederic G. Farrell, Q.C., Member Kelly Culin, Member

Hearing Date: Tuesday, July 17, 2001

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:

Frederic G. Farrell, Q.C., Member

Kelly Culin, Member

Appearances:

Bradley Christian, Appellant

David Thompson, Counsel for the Aylmer Police Service

Hearing Date: Tuesday, July 17, 2001

1. Mr. Christian has brought an application under section 70(4) of the Police Services Act R.S.O. 1990, c. P. 15 as amended (the “Act”) seeking Leave to Appeal various decisions of Staff Inspector M. Moule (the “Hearing Officer”) arising from disciplinary proceedings against Constable Dean Grbich of the Aylmer Police Service (the “Service”).

2. This application raised a number of preliminary issues. At a meeting of the parties on February 6, 2001, it was agreed that two matters would need to be determined before the Leave to Appeal application could proceed. These were:

3. Whether or not Mr. Christian was qualified as a complainant within the meaning of Part V of the Act for the purposes of appealing the penalties imposed on four counts (i.e. other than that arising from the C.P.I.C. check conducted on May 1, 1998);

4. Whether or not the Commission has the authority under section 70 of the Act to hear appeals from disciplinary charges that were withdrawn by the prosecutor at the original hearing.

This hearing was to deal with these two issues.

Background:

3. Constable Dean Grbich was at all material times a police officer with the Service. On January 14, 1999 he became aware that a motor vehicle was parked outside the residence of his former girlfriend (Ms. D). Constable Grbich used the Service’s C.P.I.C. (Canadian Police Information Centre) system to determine the ownership of this motor vehicle. It belonged to Bradley Christian.

4. Constable Grbich later telephoned Ms. D and threatened harm to Mr. Christian. In response, Ms. D immediately notified the Service about the telephone conversation. Sgt. Reymer (now Deputy Chief Reymer) was advised of the incident and on the same night telephoned Ms. D for details. He also spoke to Mr. Christian.

5. Chief Segui of the Service was informed of the matter and requested the Ontario Provincial Police (the OPP) to investigate. Constable Grbich was suspended on January 15, 1999 with pay. The OPP interviewed Bradley Christian and obtained a written statement. Eventually criminal charges were brought against Constable Grbich. In addition, over a period of time, a total of ten charges of misconduct were laid under various sections of the Code of Conduct found at O. Reg. 123/98 (the “Code”).

6. On October 21, 1999, Constable Grbich was found guilty of the criminal offences of uttering a death threat to cause bodily harm and uttering a death threat to cause death. His sentence was eighteen (18) months’ probation and 45 hours of community service.

7. With respect to the charges of misconduct under the Code the following occurred:

8. On February 2, 2000, Constable Grbich pleaded guilty to five separate charges of discreditable conduct of which three related to his improper use of the C.P.I.C. system.

9. The five remaining disciplinary charges were withdrawn by the prosecutor.

10. The penalty imposed with respect to the five charges of discreditable conduct to which Constable Grbich pled guilty were as follows:

11. a cumulative suspension of 50 days without pay;

12. a reduction of rank from second class constable to third class constable for a period of six (6) months; and

13. an order to participate in an anger management program. The 50-day suspension was invoked as follows:

a) for a May 28, 1998 improper use of the C.P.I.C. system: 5 days suspension;

b) for a December 28, 1998 improper use of the C.P.I.C. system: 15 days suspension; and

c) for a January 15, 1999 improper use of the C.P.I.C. system: 30 days suspension.

Mr. Christian subsequently made an application to this Commission seeking Leave to Appeal.

Appellant’s Position:

9. Mr. Christian argued that he made a series of complaints to the Service that qualified him as a complainant within the meaning of Part V of the Act. As such, he argued that he has status to appeal any disposition of the charges of discreditable conduct laid against Constable Grbich.

10. He argued that his complaint arose as a result of the incident of January 14, 1999 wherein he later gave a written statement to the OPP. He stated that the OPP subsequently delivered his signed written statement to the Service within a six-month period of the occurrence as required by the Act. He argued that the OPP, insofar as the delivery of his statement was concerned, were his agents (willing or unwilling).

11. Accordingly, he argued that his signed written statement constituted a proper complaint within the meaning of the Act. This complaint, he argued, covered disciplinary allegations #2 (Uttering a Threat which was related to the criminal convictions under the Criminal Code) and #3 (relating to Constable Grbich’s telephone calls to Ms. D on January 14, 1999).

12. Furthermore, Mr. Christian argued that the letter he had sent on October 22, 1999 to Chief Segui constituted additional complaints arising from the actions of Constable Grbich during the time period May 1998 through October 1999. He maintained that all disciplinary charges laid against Constable Grbich were a direct result of either his original complaint on January 14, 1999 (his written statement to the OPP during the course of their investigation) or his letter of October 22, 1999.

13. He stated that in the opening paragraph of his letter of October 22, 1999, he specifically referred to several incidents that occurred during the period from May 1998 to present (October 22, 1999) and to other members of the Service who had acted improperly.

14. With respect to the second preliminary matter, Mr. Christian argued that the Commission has full authority to hear his appeal pertaining to the disciplinary charges that were withdrawn by the prosecutor at the original hearing. In particular, he believed that the withdrawal of these charges was inappropriate for a number of reasons. He argued that the prosecutor was in a conflict of interest since, at the time in question, he was also counsel defending a civil suit that he had brought against Constable Grbich, the Aylmer Police Services Board, the Service, the Corporation of the Town of Aylmer and Chief Bill Segui. He noted that the prosecutor was at all material times under the express authority or direction of the Chief of Police (one of the defendants in his civil action).

15. He also asserted that the prosecutor did not fully perform his role since he failed to introduce evidence at the hearing regarding the prior discreditable conduct of Constable Grbich (referred to in his employment record) that would have been damaging to all defendants in his civil action. He noted that the disciplinary charges, which were withdrawn, were part of a plea bargain negotiated by the prosecutor and counsel for Constable Grbich at the same time his civil action against the defendants was outstanding. He argued that this plea-bargaining arrangement was not in the public’s best interest, since it was negotiated out of public view and he, being the injured party, was not a participant.

16. In support of his arguments, Mr. Christian relied on various provisions of the Act. These included sections 60(5), 80(2) and (6), and 84. (It should be noted that sections 80 to 112 were repealed 1997, c.8, s. 35). He argued that the Commission, based on the foregoing, should hear his appeal with respect to the disciplinary charges that were withdrawn by the prosecutor.

Respondent’s Position:

17. David Thompson, on behalf of the Respondent Service, took issue with the position taken by Mr. Christian on the two preliminary matters identified by the Commission that are the subject matter of this hearing.

18. With respect to the first issue, Mr. Thompson argued that Mr. Christian was a complainant within the meaning of the Act with respect to only one disciplinary allegation that arose from his letter of October 22, 1999. This related to the improper use of the C.P.I.C. system by Constable Grbich on May 21, 1998.

19. He noted that this complaint was more than six months after the incident on which it was based, yet Chief Segui had exercised his discretion under section 59(4) of the Act in favour of Bradley Christian and allowed the complaint to be investigated. Further, a disciplinary charge was laid against Constable Grbich for his improper use of the C.P.I.C. system on May 21, 1998. While other charges were laid against Constable Grbich, Mr. Thompson argued that they were as a direct result of an investigation by the Service and completely independent of Mr. Christian’s complaint concerning the single incident outlined in his letter of October 22, 1999.

20. Mr. Thompson argued that the statement by Mr. Christian to the OPP, following the events of January 15, 1999, was not a public complaint within the meaning of the Act but a criminal complaint pursuant to the provisions of the Criminal Code of Canada.

21. Mr. Thompson asserted that in order to qualify as a complainant within the meaning of the Act, certain procedural requirements must be met. For example, the complaint must be in writing, signed and delivered to the station or detachment of the police service to which the complaint relates or to the Commission itself. With respect to the delivery of the complaint, he points out that it can be done personally by the complainant or his agent or by mail or by fax. Mr. Thompson argued that none of this occurred. At best, he argued, the statement to the OPP was merely a statement concerning the conduct of a police officer, namely Constable Grbich, which initiated a criminal investigation.

22. Unless a complaint is made by a member of the public in accordance with the procedure set forth in the Act, Mr. Thompson argued that it does not qualify as a complaint within the meaning of Part V. Accordingly, Mr. Christian was not a complainant within the meaning of Part V for the purpose of appealing the penalties imposed on the other four counts.

23. With respect to the second matter, Mr. Thompson argued that the Commission has no authority under section 70 of the Act to hear appeals from the disciplinary charges that were withdrawn by the prosecutor at the original hearing. He argued that since these charges were withdrawn, there was no decision rendered which could be the subject of an appeal.

24. Mr. Thompson relied on various provisions of the Act. These included sections 57(1), (2) and (3) and 70(1), (2), (3) and (4).

Decision:

25. As noted earlier, there are two matters to be determined in this proceeding. They are as follows:

26. Whether or not Mr. Christian was qualified as a complainant within the meaning of Part V of the Act for the purposes of appealing the penalties imposed on four counts (i.e. other than that arising from the C.P.I.C. check conducted on May 1, 1998);

27. Whether or not the Commission has the authority under section 70 of the Act to hear appeals from disciplinary charges that were withdrawn by the prosecutor at the original hearing.

28. With respect to the first preliminary matter, we have carefully examined the materials filed and the matters raised in oral argument both by the Appellant Bradley Christian and David Thompson for the Respondent Service as well as the relevant provisions of the Act.

29. The provisions of the Act determine who is a complainant for the purposes of Part V. To qualify as a public complainant within the meaning of Part V, certain preconditions must be met. These are mandatory and not discretionary requirements. Accordingly, the actions of Mr. Christian and the Service must be viewed in light of these requirements to determine if he is a qualified complainant for the purpose of appealing the penalties imposed with respect to the four counts of discreditable conduct.

The relevant sections of the Act are as follows:

56(1) Any member of the public may make a complaint under this Part about the policies of or services provided by a police force or about the conduct of a police officer;

57(1) A complaint may be made by a member of the public only if the complainant was directly affected by the policy, service or conduct that is the subject of the complaint;

(2) A complaint made by a member of the public must be in writing, signed by the complainant and delivered to any station or detachment of the police force to which the complaint relates or to the Commission, personally by the complainant or his or her agent, by mail or by telephone transmission or a facsimile;

(3) If a complainant wants to make his or her complaint on a standard form, he or she may use a form approved for the purpose by the Commission; the approved form shall be available in every police station and detachment and in the Commission’s offices;

59(1) The chief of police shall determine whether a complaint is about the policies of or services provided by the police force or the conduct of a police officer and shall ensure that every complaint is appropriately dealt with as provided by section 60;

(2) The chief of police shall notify the complainant in writing of his or her determination that the complaint is about the policies of or services provided by the police force or is about the conduct of a police officer and the complainant’s right to ask the Commission to review the determination within 30 days of receiving the notice.

How do these sections apply to the facts of this case?

28. First, a complainant must be a member of the public who is not otherwise excluded from making a complaint under the Act. A list of those who are not entitled to the status of complainant is set forth in section 57(7). It is sufficient to say that none of these sections apply to Mr. Christian.

29. As well as being a member of the public, the complainant must be directly affected by the incident. There is little question in our minds that Mr. Christian has been directly affected by the actions of Constable Grbich.

30. It is also essential that the complaint must meet certain criteria i.e. must be in writing, signed by the complainant and delivered either to any station or detachment of the police force to which the complaint relates or to the Commission itself. Delivery can be in person, by his agent, by mail or fax. The complaint must be made within six months of the occurrence. If these requirements are met, the substance of the complaint will be classified as policy, service or conduct.

31. While the exact format of the complaint is not established by the Act, it is essential that the written complaint be clear on its face as to the nature of the issues involved that are of concern to the complainant. In other words, it is necessary that the Service be able to identify the policy, service or conduct which is of concern to the complainant without having to interpret the written document or second-guess his or her intention. The complaint must be sufficiently clear to identify the subject matter of the complaint in order that the complaint can be classified as one of policy, service or conduct.

32. Mr. Christian argues that his written statement to the OPP on January 14, 1999 and later delivered by the OPP to the Service, was a written complaint within the meaning of Part V. A copy of his written statement was filed with the Commission and we have carefully reviewed it.

33. It is evident that Mr. Christian’s statement was essentially evidence gathered by the OPP as part of the investigation into the potential criminal conduct on the part of Constable Grbich. The subsequent delivery by the OPP of the statement to the Service was part of the criminal investigation and does not qualify as a prescribed method of delivery under the Act. The OPP was clearly dealing with it as part of the criminal investigation and not as agents for Mr. Christian for the purpose of filing a public complaint.

34. Further, the receipt of the statement by the Service did not initiate any identifiable complaint process being initiated. Under the Act, when a proper complaint is received by a police service, the chief of police is required:

35. under section 59(1) to classify the complaint as being about service, policy or conduct; and

36. under section 59(2) is required to notify the complainant as to the classification of his complaint.

None of this took place.

35. In contrast, Mr. Christian’s letter of October 22, 1999 does appear to have been properly delivered to the Service within the meaning of Part V. At issue is the extent of the matters captured. Mr. Christian argued that his correspondence contained a complaint broad enough to include not only the improper C.P.I.C. check conducted on May 21, 1998 but the other four counts as well. Mr. Thompson had argued the contrary, namely, that the letter of October 22, 1999 was a complaint about a single occurrence, namely, the improper use of the C.P.I.C. system on May 21, 1998.

36. We have carefully examined Mr. Christian’s letter of October 22, 1999. We find that on its face, it met the statutory requirements of a public complaint about the improper use of the C.P.I.C. system on May 21, 1998. This letter identified the officer involved and the nature of his conduct that was the subject of Mr. Grbich’s concerns. Beyond that, the letter of October 22, 1999 does not identify any other conduct with sufficient clarity, in our opinion, to constitute a further complaint or complaints within the meaning of Part V.

37. The letter makes reference to the conduct of a specific auxiliary officer. However, auxiliary officers are not covered by Part V. Further, even if that were not the case, we understand that he is no longer working with the Service in any capacity.

38. With respect to the second preliminary matter, it is important to understand that the Commission derives its authority from the Act and is bound by its provisions. In particular, section 70 empowers the Commission to hear appeals with respect to disciplinary charges and sets forth the procedures to be followed.

39. Section 70(6) states that the Commission may confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police or the Board as the case may be. However, the prerequisite for the Commission to exercise its discretionary authority under section 70(6) is that a decision must have been rendered.

40. There must be a finding of fact, a determination of the issues resulting in a decision being made. When the five disciplinary charges were withdrawn by the prosecutor, there was no finding of fact, no determination with respect to the issues involved and therefore no decision rendered. The wording of section 70(6) is clear. If there was no decision rendered then there is nothing to appeal. To conclude otherwise would be illogical.

41. In summary, we find as follows:

42. Mr. Christian is a complainant within the meaning of Part V of the Act for the purpose of appealing the penalty imposed with respect to one count only, namely, Count #10 which was laid December 17, 1999 with respect to the improper use of the C.P.I.C. system on May 21, 1998. This complaint properly arose as a result of Mr. Christian’s letter dated October 22, 1999.

43. Mr. Christian does not qualify as a complainant for the purpose of seeking Leave to Appeal with respect to the four other penalties imposed on Constable Grbich by the Hearing officer.

44. The Commission has no authority under section 70(6) of the Act to hear appeals from disciplinary charges that were withdrawn by the prosecutor at the original hearing.

Now that these preliminary matters have been concluded, we believe that it is appropriate to move forward to have a determination on the Leave to Appeal application.

42. Over the past several months, significant materials have been filed on behalf of both the Appellant and the Respondents. We will determine the merits of the application based upon the materials filed. We grant both the Appellant and the Respondents an additional thirty (30) days from the date of this decision to file any further written materials which they wish to file in support of their respective positions.

DATED THIS 18th DAY OF OCTOBER, 2001.

Frederic G. Farrell, Q.C.

Member, OCCPS

Kelly Culin

Member, OCCPS