Christian v. Grbich and Aylmer Police Service, 2002 CanLII 76737

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

REASONS FOR DECISION

Citation: Christian v. Grbich and Aylmer Police Service, 2002 ONCPC 2

BRADLEY CHRISTIAN

and

CONSTABLE DEAN GRBICH AND AYLMER POLICE SERVICE

Applicant

Respondents

Presiding Members:

Frederic G. Farrell, Q. C., Member

E.E. Kelly Culin, Member

Submissions:

Bradley Christian, Applicant

David Thompson, Counsel for the Alymer Police Service

Initially Mr. Christian 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").

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:

1. 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);

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not the Commission has the authority under section 70 of the Act to hear appeals from disciplinary charges that were withdrawn by the prosecutor at the original hearing.

A hearing took place on July 17, 2001 with respect to the above preliminary issues. On October 18, 2001, the Commission made the following decision:

1. 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 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.

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

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 The Commission has no authority under section 70(6) of the Act to hear appeals from disciplinary charges that were withdrawn by the prosecutor at the original hearing.

Accordingly, the question now before us is whether or not the application of Bradley Christian for Leave to Appeal the decision of the Hearing Officer arising from the penalty imposed with respect to one count of discreditable conduct (being count #10) should be granted.

Background:

It is important to understand the background that gave rise to this application. Constable Dean Grbich was at all material times an officer with the Service in Aylmer, Ontario. On January 14, 1999, while on duty, Constable Grbich became aware that a motor vehicle was parked outside the residence of his former girlfriend (Ms. D.). Constable Grbich used the C.P.I.C. system to determine the ownership of this motor vehicle. The owner was Bradley Christian who was the boyfriend of Ms. D.

Constable Grbich later telephoned Ms. D. and threatened harm to Mr. Christian. In response, Ms. D. immediately notified the Service. Her telephone call was communicated through the St. Thomas dispatcher. Sgt. Reymer of the Service (now Deputy Chief) was notified of the incident and on the same night telephoned Ms. D. for details and also spoke to Mr. Christian. Thereafter, Chief Segui of the Service was informed of the situation and requested the O.P.P. to investigate.

Constable Grbich was suspended on January 15, 1999 with pay and charges were laid under the Criminal Code of Canada with respect to his conduct. The O.P.P. attended Bradley Christian's residence and obtained a written statement of the occurrence. As a result, a total of ten (10) charges of misconduct under the Act were laid against Constable Grbich over a period of time.

With respect to the criminal charges on October 21, 1999 Constable Grbich was found guilty of uttering a death threat to cause bodily harm and uttering a death threat to cause death. The sentence rendered at trial was eighteen (18) months probation and 45 hours of community service.

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. The remaining five charges of discreditable conduct were withdrawn by the Prosecutor.

The penalty imposed with respect to the five separate charges of discreditable conduct was as follows:

1. a cumulative penalty 50 of days suspension without pay;

2. a reduction in rank from Second Class Constable to Third Class Constable for a period of six (6) months; and

3. an order to participate in an anger management program. The 50-day suspension without pay can be broken down as follows:

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

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

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

Applicant's Position:

Mr. Christian asserts that the Commission should grant his application for Leave to Appeal. He argues that despite the provisions and the protections contained in section 69 of the Act for a fair hearing, he was not dealt with fairly. In his opinion, there was a denial of full participation in the hearing process, particularly with respect to the plea-bargaining between the Prosecutor and Constable Dean Grbich. He noted that the five disciplinary charges that were withdrawn were part of this plea bargaining arrangement. He suggested that this was not in the best interests of the public since it was negotiated out of the public view and because he (the complainant) was not a participant.

Mr. Christian also raises the issue of conflict of interest asserting that the Prosecution was in a conflict of interest since at the time in question he was also counsel in a civil suit brought against Constable Grbich, the Aylmer Police Service Board, the Service, the Corporation of the Town of Aylmer and Chief Bill Segui.

In short, he argued that he had been denied justice in the process and the Commission should intervene in this process by granting his Leave to Appeal to remedy the situation.

Respondent's Position:

The Respondent requests that the application for Leave to Appeal for Bradley Christian be denied. Mr. Thompson argued that under section 70(4) of the Act, an appeal to the Commission by the complainant should only be granted if the Commission considers it "appropriate". He compared the current situation to an appeal of an interlocutory decision and we should be guided by the test for Leave to Appeal for civil proceedings set out in R 62.02 in the Rules of Civil Procedure.

This Rule states that Leave to Appeal will not be granted unless:

a) There is a conflicting decision by another Judge or Court, on the matter and it is desirable, in the opinion of the Judge, that the leave to appeal be granted; or

b) There appears to the Judge good reason to doubt the correctness of the order in question and the appeal involves matters of such importance that, in the opinion of the Judge, Leave to Appeal should be granted.

Moreover, he noted that, prior to a grant of Leave to Appeal, the court must first be satisfied that the correctness of the order is open to serious debate and the appeal involves a matter of public importance or a matter relevant to the development of law and the administration of justice.

The respondent refers us to the following case authorities: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 CanLII 7405 (ON CTGD), 7 O.R. (3d) 542 (Div. Ct.), Ash v. Lloyd's Corp. (1992), 1992 CanLII 7652 (ON CTGD), 8 O.R. (3d) 282 (Gen. Div.) and Greslik v. Ont. Legal Aid Plan (1988), 1988 CanLII 4842 (ON HCJDC), 65 O.R. (2d) 110 (Div. Ct.).

Decision:

The powers of the Commission are set forth under the provisions of the Act. Sections 70(1), (2), (3) and (4) of the Act provide:

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 a finding that misconduct or unsatisfactory work performance was 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(1) from a complainant with respect to an appeal other than an appeal described in subsection (3).

This case falls under section 70(4). In order for there to be a hearing by the Commission, an application for Leave to Appeal must be made in the prescribed form, (which has been done) and the Commission must be prepared to grant Leave to Appeal with respect to the matter before it.

It is important to understand that Leave to Appeal in itself is not a matter of right. A complainant under section 70(4) does not have an automatic entitlement to an appeal and cannot expect that the Commission will grant Leave to Appeal on all occasions.

Section 70(4) in the Act uses the word "appropriate" to describe the circumstances in which Leave to Appeal can be granted. The statute does not define what are the "appropriate circumstances". There is no case law on the subject. Accordingly, it would appear that the Commission has broad discretion with respect to the granting of a Leave to Appeal. However, it should be noted that we are an administrative body and discretion should always be exercised with great care, caution and, under the correct circumstances, to assure fairness in the system.

Having said this, we do not believe that the Commission is restricted by the Rules of Civil Procedure with reference to the granting of a Leave to Appeal with respect to interlocutory matters. Our power and authority arise under the Act.

The Province of Ontario is the only jurisdiction in Canada that has formulated a Declaration of Principles in its policing legislation. The Declaration of Principles states that police services shall be provided throughout Ontario in accordance with various principles that include the following:

1. The need to ensure the safety and security of all persons and property in Ontario ...

2. The need for co-operation between the providers of police services and the communities they serve.

3. The importance of respect for victims of crime and understanding of their needs.

In short, the Province of Ontario has recognized the rights, needs and safety of its citizens with respect to police services. Our policing system must work for our citizens.

The Applicant has raised some novel issues concerning the rights of a citizen to participate in the disciplinary process. This is an essential aspect of the public complaints system. He raised several concerns about his lack of involvement as a party at various stages of the process and in particular the plea bargaining process. This appears to be confirmed by the supplementary factum of the Respondent police service at page 5, paragraph 19:

Throughout the prosecution of Grbich, Bradley Christian was present. He made numerous suggestions to the Prosecutor in relation to questions he wanted asked. When it became obvious that credible evidence would not be available or sufficient to sustain the penalty of termination, plea bargain negotiations were undertaken between the Prosecutor and the defence counsel. Bradley Christian was not included in these discussions but was kept informed of the proceedings.

Accordingly, given our discretion, the Declaration of Principles contained in the Act and, in particular, our mandate to be guided by fundamental fairness and the novel issues as cited above, it would appear appropriate for us to grant Leave to Appeal in this matter.

Accordingly, we hereby grant Leave to Appeal to Bradley Christian with respect to the decision of the Hearing Officer arising from the disciplinary proceedings hearing against Constable Dean Grbich with respect to the penalty imposed on one count of discreditable conduct (being count #10) which was laid December 17, 1999 concerning the improper use of C.P.I.C. system on May 21, 1998.

DATED THIS 13th DAY OF FEBRUARY, 2002.

Frederic G. Farrell, Q.C. Member, OCCPS

E.E. Kelly Culin Member, OCCPS