ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
OCCPS #06-12
REASONS FOR DECISION ON MOTION
SUSAN COLE
Appellant
SERGEANT PAUL ALARIE AND ONTARIO PROVINCIAL POLICE
Respondents
Presiding Members:
David Edwards, Member
Hyacinthe Miller, Member
Appearances:
Marshall Swadron, Counsel for the Applicant
Jinan Kubursi, Counsel for the Respondent
Gavin May, Counsel for the Ontario Provincial Police Association
Hearing Date: September 19, 2006
Background:
As a result of a public complaint brought by Ms. Cole, disciplinary proceedings were initiated against Sergeant Paul Alarie. That disciplinary hearing took place February 22, 23 and 24 and March 31, 2006.
On March 31, 2006 Superintendent Gord Smyth (the “Hearing Officer“) found that there was not clear and convincing evidence that Sergeant Alarie was guilty of discreditable conduct.
Ms. Cole filed a Notice of Appeal of that decision to this Commission on April 27,
On July 24, 2006, Mr. May advised the Commission that effective July 31, 2006, Sergeant Alarie would be retiring from the Ontario Provincial Police (the “OPP”) after 30 years of service as a police officer. He sought direction from the Commission concerning the status of Ms. Cole’s appeal.
Mr. Swadron, on behalf of Ms. Cole, requested that the appeal should proceed and that any motion concerning jurisdiction should be heard together with the appeal itself.
Ms. Kubursi, on behalf of the OPP, proposed that the legal question relating to the status of the appeal, given Mr. Alarie’s retirement, should be resolved before proceeding with the substance of the appeal.
On August 3, 2006, the Commission agreed to hear the motion concerning its jurisdiction to conduct this disciplinary appeal.
The Arguments:
At the commencement of the motion hearing, counsel indicated agreement on the fact that Mr. Alarie has retired from the OPP.
Mr. May, counsel for the Ontario Provincial Police Association argued that as Mr. Alarie was no longer a police officer, this Commission had no jurisdiction to conduct Ms. Cole’s appeal. He drew our attention to a number of cases suporting his argument.
These included Maurice v. Priel 1989 CanLII 89 (SCC), [1989] 1 S.C.R. 1023 (S.C.C.), Re: Epp and Krahn (1977), 1977 CanLII 1632 (MB CA), 77 D.L.R. (3rd) 469 (Man. C.A.), Chalmers v. Toronto Stock Exchange (1989), 1989 CanLII 4122 (ON CA), 70 O.R. (2d) 532 (Ont. C.A.), Ross v. British Columbia Psychological Assn. (1987), 1987 CanLII 2481 (BC CA), 19 B.C.L.R. (2d) 145 (B.C.C.A.) and Bohnet v. Law Society of Alberta (1992), 1992 CanLII 6111 (AB QB), 90 D.L.R. (4th) 373 (Alb. Q.B.).
Mr. May asserted that the maximum penalty available for disciplinary proceedings under the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) was dismissal. He argued that since Mr. Alarie had retired in one sense this was the equivalent of the maximum penalty.
Mr. May discussed the distinction between a complaint process and a discipline process and referred to Canada (Commissioner of the Royal Canadian Mounted Police) 1994 CanLII 3501 (FCA), [1994] 3 F.C. 562 (F.C.A.).
In summary, Mr. May asserted that since Mr. Alarie is not a police officer, no longer employed by the OPP nor the government of Ontario we had no jurisdiction to deal with the appeal.
Jinan Kubursi, counsel for the Respondent OPP concurred with this position. Ms. Kubursi asserted that section 70(1) of the Act must be read in context. She
noted that unless the statute specifically provides jurisdiction over former police officers, then no such jurisdiction exists.
She suggested that the purpose of Part V of the Act must be reviewed as a whole and particularly when interpreting section 70 (1). The scheme of
disciplinary penalties is tied to employment as a police officer and therefore, once the individual ceases to be a police officer, there is no further jurisdiction.
She urged us to look at the Ross case, as it makes the point that only a body that has expressly been given the authority by legislation may continue to hold jurisdiction over former members. The Act does not grant the Commission this authority.
Finally, Ms. Kubursi argued that the matter was moot as the Commission could impose no further penalty against Mr. Alarie.
Mr. Swadron, counsel for the Appellant, argued that the matter was not moot. He suggested that there are important legal questions raised beyond those relevant to the parties. The issue as to what is the proper standard of proof to be applied by a hearing officer is the main ground of appeal. Mr. Swadron asserted that the Hearing Officer erred by applying an incorrect standard of proof and that as such, an important issue in rem was raised that must be corrected.
He suggested that if the decision of the Hearing Officer is allowed to stand, it could upset the entire discipline process. He further suggested that the Appellant had acted in a timely way and should not be prevented from pursuing the appeal simply due to Mr. Alarie’s retirement.
Mr. Swadron accepted the fact that Mr. Alarie has retired but suggested that
there was no evidence that he might not seek employment elsewhere as a police officer. The overall purpose of the Act in his opinion was to instill public confidence in justice in Ontario. The Act is a combination of discipline and a complaints process. The complainant had a role throughout the entire process and an outstanding issue remained between the complainant and a police officer that must be resolved.
Mr. Swadron suggested that the disciplinary process was not tied to employment, since under 68(5)(a) of the Act a chief of police could issue a reprimand, which is not dependent upon employment and could be considered to be a self standing penalty. He further argued that section 70(2) was mandatory and required that
the Commission hear the appeal.
Mr. Swadron reviewed the cases raised by other counsel and suggested that they were either distinguishable or not binding upon the Commission.
In summary, Mr. Swadron asserted that a live issue existed between the parties and that the retirement of Mr. Alarie did not remove jurisdiction from the Commission to hear the disciplinary appeal.
Decision:
The Commission’s jurisdiction to hear appeals under Part V of the Act is limited. We find it helpful to reproduce the text of section 70 of the Act that reads as follows:
70(1) 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) …, 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 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).
Ms. Cole is a complainant. Her complaint led to the disciplinary hearing. A
decision was made at that hearing.
On April 27, 2006, in accordance with section 70(3), Ms. Cole filed an appeal of the Hearing Officer’s decision. It was her right to do so.
Section 2 of the Act is instructive. It provides the following definitions: “member of a police force” means a police officer, and in the case
of a municipal police force includes an employee who is not a police officer;
“police force” means the Ontario Provincial Police or a municipal police force;
“police officer” means a chief of police or any other police officer, but does not include a special constable, a First Nations Constable, a municipal law enforcement officer or an auxiliary member of a police force;
On July 31, 2006 Sergeant Alarie retired from the OPP. He returned the tools of his office that included his uniform, warrant card, service revolver and other use of force equipment. He has been struck off strength with the OPP. He is not
available for deployment. He is not subject to the Code of Conduct found at O. Reg. 123/98 as amended.
He is no longer a police officer. He is no longer an employee of a police force. He is no longer a member of a police force.
As was noted in Holder and Ontario Provincial Police (2002), 3 O.P.R. 1576 (O.C.C.P.S.) at page 158: “The Commission does not have jurisdiction to deal with persons who are not members of a police service …” That case concerned a retired OPP Sergeant seeking to appeal what he alleged was a constructive dismissal.
Further, the Commission is a creature of statute. Any jurisdiction that it has arises from the Act. The Act does not confer on the Commission the clear power to exercise disciplinary or appellate authority over former members.
We acknowledge the concern raised by Mr. Swadron that the decision of the Hearing Officer may raise important issues that could have an impact on the entire disciplinary process.
However, on that point we would note that the Ontario Court of Appeal in Ontario Provincial Police v. Favretto (2005), 2004 CanLII 34173 (ON CA), 72 O.R. (3d) 681 stated at page 695: “it should be emphasized that tribunals are not bound by their previous decisions. The principle of stare decisis does not apply to administrative tribunals.” That would include the decision of the Hearing Officer.
Given the above, we conclude that we have no jurisdiction to proceed with Ms. Cole’s appeal.
DATED THIS 4TH DAY OF DECEMBER 2006.
David Edwards Hyacinthe Miller
Member, OCCPS Member, OCCPS