Ontario Civilian Commission on Police Services
OCCPS #06-03
REASONS FOR DECISION
FITZROY MASTERS Appellant
CONSTABLE MICHAEL KIPROFF AND TORONTO POLICE SERVICE Respondents
Presiding Members: David Edwards, Member Hyacinthe Miller, Member
Appearances: Marshall A. Swadron, Counsel for the Appellant Robert Fredericks, Counsel for the Respondent, Toronto Police Service Peter Thorning, Counsel for the Respondent, Constable Kiproff
Hearing Date: February 20, 2006
This is an appeal from a decision by Superintendent N.T. Tweedy (the "Hearing Officer") on April 19th, 2005 that he was without jurisdiction to proceed with a charge of discreditable conduct that was before him.
The disciplinary charge in question is one count of discreditable conduct contrary to section 2(1)(g)(i) of the Code of Conduct found at Regulation 123, R.R.O. 1998 (the "Code").
Background:
The facts giving rise to this appeal are not complex. On February 7, 2003 Constable Kiproff of the Toronto Police Service (the "Service") was on duty. He attended the York Detention Centre, a privately operated youth detention centre where Mr. Masters, the Appellant, was employed as a supervisor. An altercation arose.
Subsequently, the Appellant and a young offender resident filed a complaint under Part V of the Police Services Act R.S.O. 1990, c. P.15 as amended (the "Act") about the conduct of several attending officers. Following an investigation by the Service, Constable Kiproff and his partner, Constable Corkill were both charged with two counts of misconduct. The Notice of Hearing was signed on July 28, 2003 and was served on Constable Kiproff on August 5, 2003.
The Appellant requested a review of the investigation of the Chief of Police pursuant to Part V of the Act. The review was conducted by a Panel of members of this Commission. The Panel determined that Constable Kiproff's actions may also have constituted a violation of section 2(1)(g)(i) of the Code - unlawful or unnecessary exercise of authority; specifically, that he may have arrested the Appellant without good and sufficient cause and thus made an unlawful or unnecessary arrest.
By letter dated December 23, 2003 this Commission wrote to the Chief of Police of the Service as follows:
Pursuant to the Police Services Act, S. 72(8), your Service is directed to initiate a disciplinary hearing with respect to this matter. The hearing process is to commence within 60 days. Further, it is directed that the Commission be advised when a hearing date is set and at the conclusion, a copy of the hearing officer's decision be provided.
The letter was copied to Constable Kiproff and the Appellant.
The Notice of Hearing with respect to this disciplinary charge (the "Third Charge") was issued by the Service on August 27, 2004 and was served upon Constable Kiproff on September 4, 2004, which was 256 days after the date of the Commission's direction.
The Motion:
Prior to the issuance of the Third Charge Constable Kiproff's counsel had filed a motion before the Hearing Officer, seeking a stay of the two other disciplinary charges laid by the Chief of Police alleging an abuse of process. Once the Third Charge was laid, the motion was expanded to include a request that the Third Charge be dismissed on the basis that it was not commenced within the 60-day period directed by the Commission.
The Hearing Officer found that the direction by the Commission under section 72(8) of the Act was mandatory and that the failure to abide by the Commission's direction was, in and of itself, an act of misconduct. The Hearing Officer further found that the Commission's direction was analogous to the 6 month time limit in which a complaint must be filed, the 6 month time limit for a hearing to commence once misconduct is discovered or the 30 day time limit for filing an appeal to the Commission.
The Hearing Officer noted a previous decision in Toronto Police Service and Staff Sergeant Davis (July 19, 2004), wherein he ruled that failure to lay the correct charge as directed by the Commission had resulted in a loss of jurisdiction.
The Hearing Officer concluded that he did not have jurisdiction "to proceed outside of the direction of the governing statues, which in this case means, outside of the direction of the Commission".
It is this ruling that is the subject of this appeal.
Appellant's Position:
Mr. Swadron, on behalf of the Appellant, argued that the Hearing Officer's decision was in error.
Mr. Swadron first dealt with the Commission's jurisdiction to hear this appeal. He asserted that this matter was properly before us. He argued that judicial remedies such as mandamus were only available after all avenues of appeal had been exhausted. Further, an appeal did lie to a nullity decision. Re Harelkin and University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561 (S.C.C.)
He acknowledged that the Commission had ruled in the past that an appeal lay under section 70 only from final and not interim decisions. Buckle and Ontario Provincial Police (11 May, 2005, O.C.C.P.S.). He argued that the Hearing Officer's decision, that he lacked jurisdiction to proceed, was a final decision. Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 CanLII 5633 (ON HCJDC), 66 O.R. (2nd) 18 (Div. Ct.)
Mr. Swadron further argued that a hearing had been commenced by the Chief of Police under section 64(7) because the Commission had directed the Chief of Police to so proceed. Accordingly, the decision of the Hearing Officer arising from that hearing was subject to appeal.
Mr. Swadron asserted that the Commission has the discretion under section 70(4) to hold a hearing with respect to a public complainant's appeal "if it considers it appropriate". He argued that the Commission, in deciding how to exercise that discretion, should turn to the purpose of the Act as expressed in the Declaration of Principles ("Principles").
Given the Appellant (complainant) was a youth worker at a detention center, he stressed that Principles 1, 2, 3 and 5 were particularly applicable to this case. He directed our attention to Christian and Grbich and Aylmer Police Service (13 February, 2002, O.C.C.P.S.). He asserted that, in addition to the application of the Principles, the complainant was raising an important question of law with respect to directions made by the Commission. He argued therefore that the Commission should exercise its discretion to hear the appeal.
Mr. Swadron delineated the applicable standards for reviewing a decision of a hearing officer on a question of law versus fact. He stressed that the Hearing Officer's decision that he lacked jurisdiction was a question of law and therefore the Hearing Officer must be held to a standard of correctness. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) and Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342 (S.C.C.)
Mr. Swadron addressed the effect of the Commission's direction that "the hearing process is to commence within 60 days". He argued that the statement was directory and not mandatory and drew a parallel to section 41(5) of the Human Rights Code R.S.O. 1990, c. H.19 as amended. Impact Interiors Inc. v. Ontario (Human Rights Commission) (1995), 23 C.H.R.R.D. 348 (Div Ct.).
He acknowledged that there are time limits for court proceedings contained in statute, but asserted that the law with respect to the consequence of failure to follow time limits for criminal matters should not be applied to the disciplinary process, which is administrative.
Mr. Swadron asserted that section 72(11) directed the chief of police to "immediately so process the complaint" and that the Commission could not alter the statutory time limit.
Mr. Swadron drew the Commission's attention to Ontario Civilian Commission on Police Services v. Browne et al. (2001), 2001 CanLII 3051 (ON CA), 56 O.R. (3rd) 673 (Ont. C.A.) in which the Court of Appeal ruled that the Commission need only specify the nature of the charge to be heard and that there was no requirement in the Act for the Commission to specify any time limits.
Further Mr. Swadron asserted that Constable Kiproff was aware of the Third Charge from the date of the Commission's letter directing the charge proceed since he was provided with a copy of that letter. There was no prejudice but simply a delay in the paperwork.
Mr. Swadron argued that the appropriate remedy would be to vary the Hearing Officer's decision pursuant to section 70(6) and to order that the Hearing Officer had jurisdiction to proceed with the Third Charge.
Respondent's Position (the Service):
Mr. Fredericks, on behalf of the Service, supported the Appellant's position. He contrasted the facts in this appeal to Jervis v. Toronto Police Service et al. [2005] O.J. No. 3725. In that case the Ontario Divisional Court dealt with a statutory provision and held that the Commission had no power to alter the statutory time limit, whereas section 72(8) contains no time limit. The Commission's direction was therefore directory and not mandatory.
Mr. Fredericks asserted that the Hearing Officer erred by applying his previous ruling in Toronto Police Service and Staff Sergeant Davis (July 19, 2004) to the facts of this case. In Davis, the failure to lay the correct charge as specified by the Commission was held to deprive the Hearing Officer of jurisdiction. Mr. Fredericks submitted that in this situation there was both a "hearing" and a "decision" as required by section 70(1) and that those two words should be given a broad interpretation.
Mr. Fredericks asserted that the Commission's direction contained three orders. He suggested that it would be absurd to argue that the Hearing Officer lost jurisdiction if the third order - that a copy of the Hearing Officer's decision be provided to the Commission - was not honoured. So too, Mr. Fredericks submitted, it is incorrect to argue that failure to follow the Commission's second order - commencing the hearing process within 60 days - resulted in loss of jurisdiction. The main order of the Commission was the direction to proceed with the charge.
Mr. Fredericks argued that the record was complete and that the reason for the delay in proceeding with the Third Charge was irrelevant to the appeal. He submitted that, in any event, section 70(5) permits the Commission to receive new or additional evidence. However, he argued that the obligation to submit additional evidence lies with the party asserting its relevance.
Finally, Mr. Fredericks asserted the issue of prejudice or abuse of process was dealt with by the Hearing Officer. Constable Kiproff's right to due process and a fair hearing was protected. An application was made and rejected by the Hearing Officer.
Respondent's Position (Constable Michael Kiproff):
Mr. Thorning, on behalf of Constable Michael Kiproff, spoke in support of upholding the Hearing Officer's decision.
Mr. Thorning asserted that the issues raised by the Appellant were jurisdictional and thus the appropriate remedy was not an appeal to this Commission, but rather an application to the courts for mandamus. R. v. Cairns [1985] B.C.J. No. 1091 and Rourke v. The Queen (1977) 1977 CanLII 191 (SCC), 38 C.R.N.S.268.
He noted that failure to respect time limits regarding service of process is a fatal defect that can cause a trial court to lose jurisdiction. R. v. Gougeon, R. v. Haesler and R. v. Gray (1980), 1980 CanLII 2842 (ON CA), 55 C.C.C. (2nd) 218 (Ont. C.A.). Because section 72(11) does not specify a specific time limit but instead uses the word "immediately", Mr. Thorning asserted that the Commission has the authority under section 72(8) to modify section 72(11) in appropriate situations.
Mr. Thorning contended that section 70(1), as a condition of the right of appeal, requires that a hearing must be held by the chief of police under section 64(7). Since the Commission had ordered the hearing pursuant to section 72(8), no appeal could lay under section 70(1).
Mr. Thorning argued that if the Commission ruled that an appeal did lie under section 70(1), the Commission should not exercise its discretion pursuant to section 70(4) since that would be contrary to the Principles which require fairness to all, including Constable Kiproff. Fairness to Constable Kiproff required adherence to the Commission's order.
Mr. Thorning asserted that an appeal to the Commission must be on the record and since there was no evidence before us with respect to the reason for failure to follow the Commission's order, the record was incomplete.
Mr. Thorning contended that if the Commission determined that it had jurisdiction to hear the appeal, it should allow the Hearing Officer's decision to stand. He asserted that recourse under section 70(6) is not available to the Appellant as he does not have a valid appeal before the Commission. Finally, section 73(1) is not applicable to this matter since the matter is not proceeding "on the Commission's motion". Additionally, a second direction by the Commission would be duplicitous.
Additional Submissions:
Subsequent to this hearing, on February 22, 2006, the Divisional Court of Ontario released its decision in Re: Police Constable Jeffery Gough and the Peel Regional Police Service. In light of this decision we invited further written submissions from counsel.
Mr. Swadron on behalf of the Appellant asserted that Gough supported his position that an appeal to the Commission did not lie for an interim decision. Further, since the Hearing Officer's decision in our case was a final decision, Gough did not change the Appellant's position.
Mr. Fredericks, on behalf of the Toronto Police Service, argued that Gough supported the argument that jurisdictional rulings of the hearing officer may properly be appealed to the Commission under section 70 of the Act and interlocutory rulings of a hearing officer could only be appealed following a final decision on the merits.
Mr. Thorning, on behalf of Constable Kiproff, asserted that Gough stood for the proposition that a jurisdictional ruling by a hearing officer regarding a breach of a time limitation is an interlocutory decision, does not involve a decision on the merits and is not the proper subject of an appeal to the Commission. Further, he argued that despite the fact that the Hearing Officer's decision disposed of the matter, the decision was not made on the merits of the claim and hence an appeal to the Commission did not lie. Finally, failure to abide by the Commission time limit created unfairness for the officer and was a clear error of law.
Decision:
There are three questions before us. They are as follows:
Was the ruling of the Hearing Officer on April 19, 2005 a "decision made after a hearing" subject to appeal under section 70(1) of the Act?
Assuming the answer to the above question is yes, then is this an appropriate case to allow leave to appeal under section 70(4) of the Act?
Assuming that leave is granted, should the decision of the Hearing Officer be confirmed, varied or revoked under section 70(5)?
As the Commission is a creature of statute its jurisdiction to hear an appeal must be found in the Act. The Commission has no inherent jurisdiction and may only exercise powers granted to it by the Act.
Section 70(1) provides:
A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held by the chief of police under subsection 64(7) or by the board under subsection 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.
As well, the Commission has also previously determined that there is no statutory right to appeal interim rulings, only final decisions. Buckle and Ontario Provincial Police
In the case before us, a Commission Panel directed on December 23, 2003, pursuant to section 72(8) of the Act, that the Service "initiate a hearing". Section 72(8) states that following the completion of a review, the Commission "may direct the chief of police … to process the complaint as it specifies …"
Where a hearing is held pursuant to such an order and a decision made, the Ontario Court of Appeal in Ontario Civilian Commission on Police Services v. Browne et al. has noted at pages 675 -676 that an appeal lies under section 70(1).
There is no definition of the words "hearing" or "decision" contained in the Act. However, in this matter, a hearing officer was appointed. Counsel for the Service and for Constable Kiproff appeared before that duly designated Hearing Officer.
A motion was tabled. Evidence was called. Arguments were made and the Hearing Officer issued a document entitled "Hearing Decision on Defence Motion", which, amongst other things, dismissed the Third Charge.
It seems self evident on the facts of this case that there was both a "hearing" and a decision. That brings us to the question of whether that decision was "interim" or "final".
The Divisional Court in Gough confirmed the proposition that appeals to the Commission may only be brought from "final decisions". Such decisions have been described as ones that dispose of a substantial issue between parties. Final decisions deal with real issues in dispute as opposed to collateral concerns. In Gough, the officer faced disciplinary charges arising from his conduct towards a member of the public. Early in the hearing, the officer brought a motion arguing that the charges in question were brought outside of the limitation period prescribed by section 69(18) of the Act. The Hearing Officer ruled against the officer and concluded that he had jurisdiction to proceed.
A number of months later the officer pled guilty to the charges and an agreed upon penalty was imposed. The question on appeal was whether or not the 30-day appeal period prescribed by section 70(1) of the Act ran from the decision on the motion or imposition of the penalty. Divisional Court held that the ruling on the Motion was interlocutory and that the 30-day period for filing an appeal ran from the imposition of the penalty. At that point in time the officer was entitled to raise his concerns with respect to the jurisdictional ruling on section69(18).
The case before us is somewhat different. The Hearing Officer ruled on April 19, 2005 that he had no jurisdiction to proceed with directed disciplinary charges that the Respondent Officer unlawfully or unnecessarily arrested the Appellant. This was not a ruling on a collateral matter. It is determinative of a substantial issue in dispute between the parties. The result is no further proceedings on this allegation.
Accordingly, we conclude that the decision of the Hearing Officer concerning his lack of jurisdiction to proceed with the directed Third Charge was "final" and is properly before us under section 70(1).
Argument was submitted regarding whether an application to the courts for mandamus was the appropriate remedy rather than an appeal under the Act. It is outside the jurisdiction of this Commission to comment as to whether mandamus may also be available to the Applicant. Regardless, we are satisfied that we have jurisdiction to deal with the matter.
That brings us to the question of whether or not leave to appeal should be granted. Section 70(4) gives the power to the Commission to determine whether it considers it "appropriate" to hold a hearing. The Commission considered this matter in Christian and Grbich and Aylmer Police Service and stated at pages 5 and 6 of that decision:
... 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 …
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:
The need to ensure the safety and security of all persons and property in Ontario …
The need for co-operation between the providers of police services and the communities they serve.
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 systems must work for our citizens.
The Applicant has raised some novel issues concerning the rights of a citizen to participate in the disciplinary process …
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.
We adopt those reasons.
The complaint brought by the Appellant is a serious one. The issue raised by the ruling of the Hearing Officer is an important one. It may have an impact on other directed hearings across the province.
Accordingly, we are satisfied that this is a case where it is appropriate to exercise our authority under section 70(4) and grant leave to appeal.
That brings us to the decision itself. The Commission has consistently adopted a uniform and consistent standard with respect to reviewing a hearing officer's decision on appeal. The Commission has taken a deferential approach with respect to findings of fact. The hearing officer is in the best position to make findings of fact and of credibility. Williams and Ontario Provincial Police. The hearing officer holds no such advantage with respect to findings of law. The Commission will intervene with respect to errors of law. Dingman and Ontario Provincial Police et al. (16 September, 2003, O.C.C.P.S.)
The Commission's power to issue the order in question arises under section 72(8).
Upon completion of the review, the Commission may confirm the decision or may direct the chief of police … to process the complaint as it specifies …
The Ontario Court of Appeal has ruled that the Commission need only specify the nature of the charge sufficient for the chief of police to commence the matter. Ontario Civilian Commission on Police Services v. Browne et al.
The chief of police "shall immediately so process the complaint". [s. 72(11)]. The subsection does not state that the notice of charge must be signed immediately. It does not provide that the charge must be served immediately. It does not state that the hearing must be held immediately. Rather, the chief is directed to begin to process the complaint immediately. The section is directory to the chief of police and does not limit or define the police officer's rights. Constable Kiproff's right to fundamental justice, which includes not being subjected to undue delay, remains independent of, and is not altered by, this subsection.
The order from the Commission contained four directions to the chief of police. The chief was directed to:
proceed with the charge against Constable Kiproff,
commence the hearing process within 60 days,
advise the Commission of the hearing date, and
provide a copy of the decision to the Commission.
Failure to comply with any of these directions could well constitute acts of misconduct. They are not, however, interdependent. Failure to advise the Commission of the date of the hearing or failure to provide the Commission with a copy of the decision would not invalidate the proceedings. Similarly, failure to comply with the direction to commence the hearing process within 60 days cannot invalidate the Commission's direction to the chief of police to proceed with the Third Charge against Constable Kiproff.
Accordingly, the Commission revokes the decision of the Hearing Officer and finds that the Hearing Officer has jurisdiction to hear the Third Charge.
The delay in serving the Third Charge may give rise to a claim of prejudice, not due to the failure to honour the Commission's order, but rather due to the delay itself. Depending upon the circumstances, a police officer may or may not be prejudiced by such a delay. That issue, however, is one which the Hearing Officer is best suited to determine.
In the normal course of events, concerns about abuse of process would be dealt with by a hearing officer; however, the issue was raised before us, and in order to avoid further delay, we are prepared to rule on this matter.
The decision of the Hearing Officer is ambiguous as to whether a ruling was made on this issue. Having disposed of the Third Charge in paragraph 147 of his decision, at paragraph 195 the Hearing Officer comments on the issue of prejudice due to undue delay with respect to the first two charges:
Prejudice from receiving a fair hearing has been impacted as memories fade over time, but in my judgment this is still minimal, the case being delayed to date about 16 months, since the determination of the review of the Commission, and 26 months from the event.
There is no evidence of prejudice on the record. Indeed, Constable Kiproff was aware of the Third Charge from the date of receipt of a copy of the Commission's order directing that the Third Charge proceed.
We find that there was no abuse of process by virtue of the delay and order the chief of police to proceed with the Third Charge against Constable Kiproff.
DATED AT TORONTO THIS 18TH DAY OF APRIL, 2006.
David Edwards Member, OCCPS
Hyacinthe Miller Member, OCCPS