Parker v. Blakely, 2004 CanLII 77191

ONTARIO CIVILIAN POLICE COMMISSION

DATE: May 13, 2004

FILE: OCPC-04-004

CASE NAME: FRED PARKER AND SERGEANT RANDY BLAKELY OF THE QUINTE WEST POLICE SERVICE

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

BETWEEN:

Fred Parker APPELLANT

-and-

Sergeant Randy Blakely (Quinte West Police Service) RESPONDENT

DECISION ON MOTION

Panel: Krishan D. Uppal, Member Peter J. Doucet, Member

Hearing Date: April 29, 2004

Hearing Location:

Appearances: George Bonn, Counsel for the Applicant Joanne Mulcahy, Counsel for the Respondent

I. Introduction

1. These Motions brought by the Applicant for Leave to Appeal these three separate decisions of the Hearing Officer were heard on April 29, 2004.

2. The Applicant, Mr. Parker, seeks Leave to Appeal the following decisions:

1. The decision of January 30, 2002, denying a request to amend the charge by including a reference to the failure of Sergeant Blakely to bring the accused before a Justice of the Peace within the time prescribed by the Criminal Code;

2. The decision of the Hearing Officer of July 3, 2003 that Sergeant Blakely committed the offence of misconduct in denying Mr. Parker his rights to counsel without delay based on the number of hours found by the Hearing Officer to constitute such misconduct; and

3. The penalty decision of a reprimand of August 27, 2003.

3. We find it helpful to reproduce the text of section 70 of the Police Services Act, R.S.O. 1990, c. P.15 as amended, which states as follows:

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 the 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 proven 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).

Motion for Leave to Appeal Decision not to Amend the Notice of Charge/Hearing

4. We agree with the rationale set forth by the Ontario Divisional Court in the decisions of Roosma v. Ford Motor Company (1988), 1988 CanLII 5633 (ON HCJDC), 66 O.R. (2d) 18 and McCann v. Ontario (Police Services Board of Inquiry) [1994], O.J. No. 202. In both of these decisions the Divisional Court held that there is no jurisdiction to appeal any Order other than a final Order. We adopt the analysis found in the Rules of Civil Procedure of the Ontario Superior Court of Justice dealing with interlocutory as compared with final Orders.

5. We are of the view based on these authorities that our jurisdiction found in section 70(1) of the Police Services Act to entertain an appeal only extends to an appeal from a final Order that substantially disposes of the issues before the Hearing Officer. We find support for this position as well in the wording of section 70(1) which makes reference to the words “decision made after a hearing”. We emphasize the words “after a hearing”.

Motion for Leave to Appeal Misconduct

6. Despite the able argument of Ms. Mulcahy, on behalf of Sgt. Blakely, we are of the view that no Leave to Appeal is required based on the misconduct decision of July 3, 2003. Ms. Mulcahy’s argument that an Applicant cannot challenge the reasons behind the decision, but only the decision itself, goes in our view, to the merits of the appeal rather than to the issue of leave. We make no comment upon whether or not the appeal has merit, but feel that on the clear wording of section 70(3) if goes as of right, rather than requiring leave.

7. Sergeant Blakely has brought his own appeal of the misconduct finding, and therefore that matter is going to be before the Commission in any event. Further, Rule 14 of the Rules of Practice of the Commission provides for a mechanism whereby our jurisdiction on this particular appeal could be challenged or a stay of these proceedings could be sought on bringing the proper motion pursuant to Rule 14.3. Sergeant Blakely has chosen not to do so thus far.

Motion for Leave to Appeal Penalty Decision

8. Section 70(4) of the Police Services Act is clear that leave to appeal is required to appeal a decision of penalty when it is the complainant who seeks to appeal. We feel that it would be of assistance to the profession and police officers as a whole to understand when leave ought to be granted. Clearly, it was not the intention of the legislature that the complainant would have an automatic right to appeal penalty, and clearly therefore, the legislature expects that a certain threshold must be met before discretion will be exercised. We think it helpful to set out what we believe to be the appropriate test.

9. In our view, Leave to Appeal should be granted if one of the following conditions is met:

10. The decision is clearly wrong on its face and the appeal involves matters of such importance that leave ought to be granted; or

11. There is a conflicting decision of the Commission on the matter involved in the proposed appeal and it is desirable that leave be granted; or

12. The matters raised in the proposed appeal are of significant importance to the policing profession as a whole and the community at large.

13. Here we feel that the issues raise fundamental Charter Rights under sections 7, 9, & 10(b) of the Charter of Rights and Freedoms. The question of what is the appropriate range of penalty when there is a breach of these very important rights is of significant importance to the policing profession and the community as a whole. We therefore grant Leave to Appeal to the Applicant with respect to the penalty decision imposed on Sergeant Blakely on August 27, 2003.

14. The Registrar of the Commission is directed to schedule a date for the hearing of the appeals in this matter and to direct the parties to serve and file their Factums and Books of Authorities in accordance with the Rules of Practice.

DATED THIS 13^th DAY OF MAY 2004.

Peter J. Doucet Krishan D. Uppal

Member, OCCPS Member, OCCPS