ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Constable Jeffrey Gough
APPELLANT
-and-
Peel Regional Police Service
RESPONDENT
DECISION
Panel: Dr. John A. Balkwill, Vice-Chair
Peter J. Doucet, Member
Hearing Date: Monday, June 2, 2003
Hearing Location:
Appearances:
Leo A. Kinahan, Counsel for the Appellant
Andrew Heal, Counsel for the Respondent
I. Introduction
- This is an appeal from a decision of Hearing Officer Hazleton of September 9, 2002 dismissing an application to stay the proceedings against Constable Gough under the Police Services Act, R.S.O. 1990, c. P.15 as amended (PSA). The application was brought pursuant to s. 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended (SPPA) for an order quashing or alternatively staying the proceedings against Constable Gough based on the failure of the Peel Regional Police Service (PRPS) to serve the Notice of Hearing within 6 months as per s. 69(18) of the PSA and the further failure to obtain an extension of that time from the Police Services Board pursuant to that same section.
II. Background
The facts are not really in dispute. On August 13, 2001 Constable Gough was accused of discreditable conduct for using profane, abusive or insulting language towards Mr. F., a member of the public, and further by tearing up a business card, contrary to s. 74(1) of the PSA.
The allegations are rather disturbing. In summary, it was alleged that Constable Gough involved himself in what turned out to be a close call but no contact motor vehicle incident which the drivers, one of whom was Mr. F., resolved amicably between themselves. The allegations suggest that Constable Gough confronted Mr. F. because of his race and, among other things, referred to him as a “fucking sand nigger”, suggested that charges could be fabricated against Mr. F., tore up a business card bearing the name of a Toronto police officer, and repeatedly swearing at Mr. F. If believed by a hearing officer, these were serious allegations indeed.
Mr. F. made his complaint August 16, 2001. The chief directed an investigation and by September 4, 2001 PRPS had the position of Constable Gough, another officer Constable McKenna, and the substance of the complaint was before the PRPS.
The complainant and his family, however, had moved to the United States and were difficult to contact, as was another witness from the Toronto area. As a result, while diligent efforts were made to cover all of the bases as it were, the investigation continued on until March of 2002 when the final report was submitted to the Detective Sergeant on March 15, 2002. The Notice of Hearing was not served until July 24, 2002, some 11 months after the complaint.
A hearing date was set for September 9, 2002 before Hearing Officer Hazelton (Hazelton). On September 9, 2002 the officer brought the aforementioned application pursuant to s. 23 of the SPPA. Hazelton dismissed the application, finding that “the final facts given to the chief, and until the final report with the facts, not the allegations, the facts, are given to the chief, the time does not start clicking, ticking, until that moment. So, based on that I find that these charges were laid within the time limit.” He continued with the hearing. The hearing was adjourned as the complainant and his witnesses had not been brought in, because of the hearing of the application, and they would have to travel
from the United States. A hearing date was set for December 10, 2002.
On December 10, 2002 Constable Gough, now represented by Mr. Kinahan, pled guilty to a charge of discreditable conduct, based only on the tearing up of the business card. This was a negotiated resolution with the PRPS and a joint submission of 8 hours loss of work to be served at the discretion of the division commander was agreed to. This was a substantial reduction from what Constable Gough would have faced had he been found guilty of the original charges which likely would have resulted in demotion or worse.
Following the negotiated reduction of charges and joint submission, Constable Gough then appealed the September 9, 2002 decision of Hazleton to this Commission, with a Notice of Appeal delivered January 2, 2003.
Issues
The issues raised by the Appellant are essentially that Hazleton erred in his decision not to grant the stay, that the proceedings were commenced out of time, that no request was made to extend, and that these errors are fatal to the proceedings.
The Respondent argues that the time for bringing the proceedings should only run from March 15, 2002 as that was when the Chief personally received the report on the complaint.
III. Decision
S. 69(18) and the question of when the time limitation begins to run, is clearly of interest to these parties, and likely the profession and police body as a whole. This case, however, has the rather unique facts as we have set forth.
We are of the view that the time for the bringing of this appeal from the September 9, 2002 decision of Hazelton started to run on September 9, 2002 and was expired 30 days hence, as provided for in s. 70(1) of the PSA. Despite the able argument of Mr. Kinahan, we are not persuaded that we have any discretion to extend that time, nor are we persuaded that the time began to run only on December 10, 2002 at the conclusion of the proceedings.
These are not criminal proceedings. These are civil proceedings. The application for a stay under s. 23 of the SPPA is akin to a motion for summary judgment in a civil proceeding. The time for an appeal of such a decision must run from the handing down of the decision, not the ultimate disposition of this particular case, which resulted in a negotiated plea and joint submission. Further, the negotiated plea and joint submission, without any express reservation of the rights to appeal the September 9, 2002 decision of Hazelton must be seen as a waiver of those rights. Clearly Constable Gough gave up his argument of the failure of PRPS to comply with s. 69(18), which, on these facts, was evident, and PRPS gave up the strong penalty which Constable Gough would have received on these disturbing allegations of racial intolerance and discrimination. In so doing, the bringing of an appeal after the fact was hardly in keeping with the arrangement which was made on consent, with the advice of counsel, and with no suggestion of unconscionability, misunderstanding, or inability to comprehend the essence of the agreement.
Accordingly, the appeal fails on this basis.
We feel it useful, however, to comment for the benefit of the profession and the police services and officers in general on the application of s. 69(18) and when that time starts to run in our view. Had we not dismissed the appeal for the reasons aforesaid, we would have found that in this case, the knowledge of the designates of the Chief was in fact the knowledge of the Chief. We do not accept the argument of Mr. Heal that the time does not start to run until the Chief gets the final report. This would defeat the intention of the section that, in our view, disciplinary proceedings be commenced within 6 months of the decision maker possessing a sufficient body of factual information which may constitute misconduct. To hold otherwise would create the potential for charges hanging on forever over the heads of police officers with no remedy. In those instances where more time is required to obtain the requisite information, s. 69(18) provides a clear mechanism for obtaining an extension of time from the appropriate police services board. Each case will turn on its own facts. In this case it is important to remember that at no time did the Peel Regional Police Service ever request any extension, which clearly they should have done.
Had the appeal from the decision of Hazelton been commenced within the required time, we would have found that Hearing Officer Hazelton erred in law in his decision for the reasons set out above.
DATED THIS 5th DAY OF JUNE 2003.
Dr. John A. Balkwill Peter J. Doucet
Vice-Chair, OCCPS Member, OCCPS