OCCPS #07-13
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
Citation: Gough v. Peel Regional Police Service, 2007 CanLII 87218
REASONS FOR DECISION
CONSTABLE JEFFERY GOUGH
Appellant
PEEL REGIONAL POLICE SERVICE
Respondent
Presiding Members:
Garth Goodhew, Member
David Edwards, Member
Appearances:
Leo A. Kinahan, Counsel for the Appellant
Andrew Heal, Counsel for the Respondent
Hearing Date: August 20, 2007
On December 10, 2002 Superintendent D. Hazleton (the “Hearing Officer”) found Constable Jeffery Gough guilty of discreditable conduct, in that he used profane, abusive, or insultive language to a member of the public, contrary to section
2(1)(a)(v) of O. Reg. 123/98 as amended (the “Code”).
During the course of the disciplinary hearing Constable Gough brought a preliminary motion to quash or stay the charge, which application was dismissed by the Hearing Officer on September 9, 2002. It is that decision which is the subject of this appeal.
Background:
On August 13, 2001 Constable Gough investigated Naail Falah in relation to the Highway Traffic Act R.S.O. 1990, c. H.8 as amended. Mr. Falah filed a formal public complaint alleging mistreatment by Constable Gough. That complaint was received by the Public Complaints Bureau of the Peel Regional Police Service (the “Service”) on August 16, 2001.
At the time of the incident Jeffery Gough was a Second-Class Constable and had been a member of the Service since July 1999. Constable Gough was advised of the ongoing investigation on August 21, 2001 and submitted a response to the investigators on September 4, 2001.
The Investigation Report was not completed by Detective Turner until March 15,
- Two of the witnesses had moved to the United States and Detective
Turner had been unable to obtain their statements until February 11, 2002.
On July 24, 2002, Constable Gough was served with a Notice of Hearing. The particulars of the charge read as follows:
On August 13, 2001, Constable Jeffrey Gough #2196, a member of the Peel Regional Police, was on duty and spoke with Naail Falah as the result of a driving incident. This occurred at approximately
4:10 p.m. on Hurontario Street near Sherobee Road. Constable Gough was uncivil to Naail Falah by the language that he used and by tearing up a business card that had been among the papers Naail Falah had given to him.
These facts became known through a public complaint on February
11, 2002.
The period between the filing of the public complaint and the service of the Notice of Hearing was eleven months and eight days. No request was made by the Service to the Peel Regional Police Services Board (the “Board”) for an extension of time to effect service.
On September 9, 2002 Constable Gough brought an application before the Hearing Officer to quash or stay the charge on the basis that the Notice of Hearing had not been served within the six-month time period prescribed by section 69(18) of the Police Services Act R.S.O. 1990, c. p.15 as amended (the “Act”).
The Hearing Officer determined that this six-month limitation period did not commence “until the final report with the facts, not the allegations, the facts, are given to the chief ….”. Given that the Investigation Report was completed on March 15, 2002 the Hearing Officer concluded that the Notice of Hearing was served within the six-month time period and denied the motion.
On December 10, 2002 Constable Gough pled guilty to the charge against him and the Hearing Officer accepted a joint submission on penalty calling for a forfeiture of one eight hour day to be served at the discretion of Constable Gough’s divisional commander.
On January 2, 2003, Constable Gough appealed the Hearing Officer’s decision of September 9, 2002 to this Commission. The Commission ruled on June 5, 2003 that the thirty-day period to initiate such an appeal under section 70(1) of the Act commenced on September 9, 2002 and therefore, the appeal was filed outside of this time limit and the Commission had no jurisdiction to hear the matter.
In addition the Commission commented at page 3 of its decision:
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 advice of counsel, and with no suggestion of unconscionability, misunderstanding, or inability to comprehend the essence of the agreement.
Constable Gough appealed the Commission’s decision to the Ontario Court of
Justice (Divisional Court).
In a ruling dated February 22, 2006 Divisional Court held that the thirty day appeal period under section 70(1) commenced from the Hearing Officer’s final decision on the merits on December 10, 2002.1 Accordingly, Constable Gough’s original appeal to the Commission was timely.
Divisional Court remitted the matter to the Commission to be heard. Divisional Court made no comment with respect to the finding of the Commission regarding the effect of a guilty plea upon Constable Gough’s appeal rights.
Preliminary Motion:
At the commencement of this proceeding, Counsel for the Respondent brought a motion seeking an order to permit the Service to amend its factum. That motion was heard on October 6, 2006.
Mr. Heal asserted that Divisional Court had remitted “the matter to the Commission to determine the appeal on the merits”. Accordingly, the appeal should be dealt with in the same manner as any appeal that the Commission might hear.
He also argued that certain matters had transpired after the date of the first
Commission hearing that were relevant to this appeal.
Mr. Kinahan, on behalf of Constable Gough, asserted that the Divisional Court’s ruling should be interpreted as meaning that the only issue to be considered by the Commission was that relating to the application of section 69(18) of the Act.
Accordingly, he argued that the factums should not be amended.
Ruling on the Motion:
Our first obligation is to ensure that all parties have a fair hearing. There must be a full and complete examination of all of the issues and parties must have the opportunity to consider and speak to those issues.
Despite the circuitous route that this matter has taken, it is an appeal from a decision of the Hearing Officer and should be treated as such. In the normal course, parties to an appeal have an opportunity to amend their factums with the consent of the other parties, and failing that, upon an appropriate application to the Commission.
In addition, the Commission in its initial decision of June 5, 2003 raised the question as to whether there was a waiver of the right to appeal due to Constable Gough’s guilty plea. This Panel cannot ignore that issue.
We ordered that the amended factum of the Respondent be accepted as filed
and that the Appellant be given until January 15, 2007 to file an amended factum.
We reconvened on August 20, 2007 to hear the argument on the merits. At that time, on consent, evidence that Constable Gough had authorized the deduction of eight hours from his holiday bank of hours as service of the penalty was introduced into evidence.
Appellant’s Position on the Appeal:
Mr. Kinahan raised three issues on behalf of the Appellant.
Firstly, he argued that section 69(18) of the Act prohibits the service of a Notice of Hearing six months after the filing of the complaint unless permission is obtained from the Board. No such permission was obtained. The Notice of Hearing in this case was served on July 24, 2002 a period of eleven months and eight days after the formal complaint was made.
He asserted that the Hearing Officer had authority under section 23(1) of the Statutory Powers Procedure Act R.S.O. 1990, c. S.22 as amended to remedy situations that are perceived as abusive to the proceedings.
He argued that the Hearing Officer’s determination that the “time does not start clicking, ticking” until such time as the final facts are presented to a chief of police is flawed and flies in the face of the legislation. If this were the case,
investigators would have unfettered discretion to investigate for as long as they wished since the limitation period would not start until the final report was made.
Mr. Kinahan suggested that the appropriate commencement date for the time period occurred when the officer who was the subject of the complaint was identified. At worst he argued that the period would start when Constable Gough made a response to the allegation, which occurred on September 4, 2001.
Secondly, Mr. Kinahan asserted the guilty plea of the Appellant should not preclude him from bringing this appeal. The guilty plea was part of a negotiation process that resulted in an amended agreed statement of facts. He noted that the particulars of the charge read by the Hearing Officer differed from the original particulars as reference to profane language had been excluded. This was evidence that Constable Gough had only pled guilty to the facts referred to at the hearing and had not acquiesced to the jurisdiction of the Hearing Officer. This appeal only deals with jurisdiction.
He suggested that the guilty plea constituted an admission of the agreed facts only. As the Appellant was not challenging any of the agreed facts, but simply the jurisdiction of the tribunal in the first instance to hear the facts, he should not be precluded from so doing. The appeal should not be subject to the principle of estoppel.
Further, he argued that a guilty plea arising out of a plea bargain process does not serve as conclusive proof of guilt. The weight and significance of the guilty plea will depend upon the circumstances of the case. An appeal after a guilty plea will be permitted in the right circumstances. Re DelCore and Ontario College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 51 O.R. (2d) 1 (Ont. C.A.); leave to appeal to
SCC dismissed, 57 O.R. (2nd) 296, Hagon v. Canada (1999), A.C.W.S. (Tax Ct of
Can) and Regina Ex Rel. Hamilton v. Keddy (1956), 1956 CanLII 466 (NS SC), 114 C.C.C. 352 (N.S.C.A.)
The estoppel principle “must accord with plain honesty and good conscience. Neither in civil law nor in criminal proceedings can it be invoked to cover bad faith or injustice”. R. v. Stone (1932), 1932 CanLII 382 (NS SC), 58 C.C.C. 262 (N.S.S.C.)
Thirdly, Mr. Kinahan asserted this appeal was not moot because live issues remained between the parties. The essential question raised was not hypothetical and required comment for the benefit of the profession and police services.
He maintained that the eight hours forfeited by the Appellant could be returned to him. In addition, section 25 of the Statutory Powers Procedure Act provides that an appeal has the effect of staying the penalty unless lifted by the Commission.
In summary, Mr. Kinahan argued that the finding of the Hearing Officer of misconduct by Constable Gough should be overturned and the Notice of Hearing quashed due to the failure of the Respondent to comply with the mandatory time limitations set out in section 69(18) of the Act and the resulting loss of jurisdiction of the Hearing Officer to proceed with the matter.
Respondent’s Position on the Appeal:
Mr. Heal asserted that the Appellant had raised one issue: Did the Respondent fail to comply with section 69(18) of the Act?
However, he argued that two threshold issues must be dealt with:
Has the Appellant waived his right to appeal by virtue of the negotiated guilty plea and the fulfillment of his penalty?
Has the appeal been rendered moot?
With respect to the first threshold issue, he maintained that formal admissions made for the purpose of dispensing with proof at trial are conclusive as to the matters admitted. John Sopinka et al, “The Law of Evidence in Canada” (Toronto, Butterworths, 1992)
Mr. Heal analogized to criminal cases where an appeal may only be granted after a guilty plea in exceptional circumstances such as ignorance, deceit, duress or mistake. Regina ex rel Hamilton v. Keddy (1956), 1956 CanLII 466 (NS SC), 114 C.C.C. 352 (N.S.S.C.)
Where an accused has pled guilty and then appealed on the ground that his sections 11(b) and 11(d) of the Charter of Rights were breached, the courts have consistently concluded that the appellant has waived his or her right to appeal rulings on such constitutional defences. R. v. Davidson [1992] N.S.J. No. 27 (N.S.C.A.), R. v. Naderi [1996] O.J. No. 4243 (Ont. Gen. Div.) and R. v. Richard 1996 CanLII 185 (SCC), [1996] S.C.J. No. 43 (S.C.C.)
Mr. Heal argued that Constable Gough’s appeal has been rendered moot. The determination of whether a matter is moot requires a two-step analysis. First, it is necessary to determine whether a tangible and concrete dispute has
disappeared rendering the issues academic. If so, the court must decide whether to exercise its discretion to hear the case. Borowski v. Canada (Attorney General) 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 (S.C.C.)
Generally, where a party pled guilty to an offence and has served his sentence, a court will generally not entertain an appeal. R. v. McMillan [1996] O.J. No. 1497 (Ont. C.A.)
Mr. Heal asserted that the Appellant had pled guilty and no evidence was offered to suggest that his guilty plea was made in ignorance, deceit, duress or mistake. He served his eight hour penalty. In the absence of any such evidence, he has waived his appeal rights and the matter has been rendered moot by completion
of his penalty.
Finally, Mr. Heal addressed the issue as to whether the Respondent failed to issue the Notice of Hearing within the six-month time period prescribed in section
69(18) of the Act.
He agreed that section 69(18) of the Act is mandatory but it must be viewed in context of other provisions of the Act. Section 57 of the Act governs who may make a complaint and the manner of so doing.
In his factum Mr. Heal detailed the interaction of sections 59(1) and (2), 59(8)
64(1), and 64(7). The Hearing Officer concluded that the date that the Investigative Report was submitted to the Chief was the appropriate date from which the six-month time period should commence. Mr. Heal argued that this is
a reasonable interpretation of the Act. He acknowledged, however, that this view is not consistent with the test described by this Commission in several decisions.
He pointed out that the phrase “first came to the attention” has been interpreted by this Commission in Moyle and Palmerston Police Service (1995), 2 O.P.R.
1016 (O.C.C.P.S.) to refer to the point in time where there is a sufficient body of factual information to create a reasonable belief that misconduct has occurred.
Mr. Heal conceded that the Hearing Officer could have reasonably concluded that the date the Chief’s designate first obtained “a sufficient body of factual information” was on February 11, 2002 when statements were obtained from the independent witnesses who had moved from Canada to the United States. At that point Detective Turner had a reasonable belief that the misconduct had occurred. This date was also within the six-month time period prescribed by section 69(18) of the Act.
He asserted that neither Moyle and Palmerston Police Service nor VanPuyven and Niagara Regional Police Force (October 4, 1993, Ont. Bd. Inq.) stand for the proposition that the six-month limitation period commences when the complaint is made.
He argued that if the legislative intent was to have the six-month time period to run from that date of the written complaint, then specific language such as “from the date the complaint is made” would have been incorporated into section
69(18). Similar language is used in section 59(2) of the Act.
The Act does not provide a time limit for investigations nor for written investigation reports. Had the Legislature intended to place a specific time limit on investigations, a time limit would have been specifically set out in section 64 of the Act.
He asserted that the length of the investigation process is governed by the common law principles regarding “inordinate or inexcusable delay”. Duriancik v.
Ontario (Attorney General) (1994), 1994 CanLII 10970 (ON CTGDDC), 114 D.L.R. (4th) 504 (Div. Ct.) and Ramsay v. Toronto (City) Commissioners of Police (1998), 1988 CanLII 4706 (ON HCJ), 66 O.R. (2nd) 99 (Div Ct.)
Mr. Heal submitted that where the principles of inordinate or inexcusable delay have been applied to quash charges or to grant a stay of proceedings against police officers, the delay has been measured in years, not months. Durinacik v. Ontario (Attorney General) supra., Ramsay v. Toronto (City) Comissioners of Police [1998] O.J. No. 1545 (Div. Ct.) and Police Complaints Commissioner v. Will [1993] O.J. No. 2716 (Div. Ct.)
He asserted that the commencement of the six-month period following the completion of the investigation does not contradict the principle of ‘innocent until proven guilty’. The decision to hold a hearing pursuant to section 64(7) of the Act is not made upon the determination of definite wrongdoing.
He argued that the policy reason that the six-month period should be calculated from the date the Investigation Report was completed or, alternatively, the date all pertinent witnesses provided statements is that otherwise local police service boards will be inundated with requests for extensions.
In summary, Mr. Heal asserted that the Hearing Officer did not err in holding that the six-month time period referred to in section 69(18) of the Act commenced upon the completion of the investigation and review of the written Investigation Report. This decision was reasonable. In the alternative, the date when the investigators received the independent witness statements would be an appropriate date. Both dates fall within the six-month time period.
In conclusion, Mr. Heal requested that this appeal be dismissed.
Decision:
The general facts relating to this case are straightforward, even though the path that this case has followed is not.
On August 13, 2001 Constable Gough investigated Naail Falah in relation to the Highway Traffic Act. On August 16, 2001 Mr. Falah filed a formal public complaint.
On July 24, 2002, Constable Gough was served with a Notice of Hearing. The period between the filing of the public complaint and service of the Notice of Hearing was eleven months and eight days. No request for an extension of time to effect service of the Notice of Hearing was made to the Board.
The Investigation Report was not completed by Detective Turner until March 15,
- Two of the witnesses had moved to the United States and Detective
Turner had been unable to obtain their statements until February 11, 2002. Until
Detective Turner obtained these statements the sum total of his investigation was the complainant’s allegation, his statement and the officer’s response.
On September 9, 2002 Constable Gough brought an application to quash or stay the charge on the basis that the Notice of Hearing had not been served within the time limit prescribed by the Act. The Hearing Officer denied the motion, finding that the six-month limitation period did not commence “until the final report with the facts, not the allegations, the facts, are given to the chief….”. As the Investigation Report was completed on March 15, 2002, the Notice of Hearing was served within the six-month time period.
On December 10, 2002, Constable Gough pled guilty to the charge and following an agreed submission by both the Prosecutor and Defence, the Hearing Officer imposed a penalty of eight hours or one day.
Both parties concede that there are three issues. The first two are threshold issues. The third issue is a substantive one.
Those issues are:
- Has this appeal been rendered moot by the fact that Constable
Gough has served his penalty?
Has Constable Gough waived his right of appeal by virtue of his guilty plea?
Was the Notice of Hearing served outside of the time limit provided for in section 69(18) of the Act?
We will deal with the issues in the order listed above. Firstly, has this appeal been rendered moot?
To determine whether a matter is moot one must first ascertain whether a
tangible and concrete dispute has disappeared rendering the issues academic. If a live issue remains between the parties, then the matter is not moot. Borowski
v. Canada (Attorney General) supra.
Evidence was submitted that Constable Gough requested that the eight hour penalty be deducted from his holiday bank. This occurred in September of 2004. This was offered as proof that Constable Gough has served his penalty, and therefore the matter is moot.
Section 25 of the Statutory Powers Procedure Act, with certain exceptions, provides that an appeal stays any penalty. Nothing was submitted to this
Commission to support the position that Constable Gough had the ability to waive this legislative provision.
If Constable Gough directed that eight hours be deducted from his holiday bank, in the face of a live appeal, such act would be contrary to section 25 of the Statutory Powers Procedure Act and be of no force or effect.
As such, there remains a live issue between the parties with respect to the eight hours penalty.
Even if that were not the situation, we are of the view that in an employer- employee relationship, a disciplinary penalty leaves a lasting mark on the employment record of the employee.
Secondly, we turn to the question as to whether Constable Gough’s guilty plea constituted a waiver of his right to appeal.
Constable Gough, while represented by counsel, made a voluntary, deliberate and informed guilty plea. He did not in any tangible way attempt to reserve any right of appeal as to jurisdiction.
We acknowledge that the cases cited on this principle are primarily criminal and that disciplinary matters are civil proceedings. These cases are useful, however, in demonstrating the principle that an appeal may only be granted after a guilty plea in exceptional circumstances such as ignorance, deceit, duress or mistake. Regina ex rel Hamilton v. Keddy supra.
Even when Charter rights were subsequently raised, the courts have consistently concluded that the appellant has waived his right to appeal such constitutional defences. R. v. Davidson supra., R. v. Naderi supra., and R. v. Richard supra.
We are not persuaded by Mr. Kinahan’s suggestion that there is an implicit reservation of that right, and that the guilty plea should only be seen as an admission of the facts to which the guilty plea relates.
In the absence of any reservation of the right to appeal, Constable Gough attorned to the jurisdiction of the Hearing Officer and therefore is precluded from appealing the September 9, 2002 decision of the Hearing Officer.
For this reason this appeal fails.
As this case has travelled a long and lengthy path spanning over five years, we take this opportunity to add the following.
Even if we are not correct on the issue concerning the effect of Constable Gough’s guilty plea, we are of the view that this appeal also fails on the third issue.
The Appellant’s contention that the commencement date for section 69(18) occurred when the complaint was laid, or at the latest, when the officer provided a response to the complaint is not consistent with the test established by prior Commission decisions.
Section 69(18) of the Act reads:
69(18) If six months have elapsed since the facts on which a complaint is based first came to the attention of the chief of police
… no notice of hearing shall be served unless the board (in the case of a municipal police officer) … is of the opinion that is was reasonable, under the circumstances, to delay service the notice of hearing.
The Commission stated in Moyle and Palmerston Police Service supra. at page
1023 that test to be applied is as follows:
If, therefore, a Chief of Police or a Board comes into possession of facts which, in their judgment, is likely to lead to disciplinary action, it is incumbent upon them to give notice to the person within the time set out. This must be more than a hint of wrongdoing. It must be a sufficient body of factual information, so as to create a reasonable belief that misconduct has occurred.
This test is an objective one, which must be subjectively applied to each fact situation.
In this case we are of the view that the Hearing Officer erred in the test that he applied. Although the receipt of the Investigative Report by the Chief would provide an objective test and a comfortable one, that test is not consistent with the test enumerated by this Commission, nor is it consistent with the legal concept that the Chief has the knowledge of his or her delegated subordinates.
The test to be applied is that which is stated in Moyle and Palmerston Police
Service.
How does this then apply to our fact situation?
It is a reasonable conclusion that the Chief came into possession of facts which constituted “a sufficient body of factual information, so as to create a reasonable belief that misconduct has occurred”, when Detective Turner obtained the two independent witness statements on February 11, 2002.
The Notice of Hearing was served July 24, 2002, which is within six months of
February 11, 2002.
Therefore, although the Hearing Officer erred in the test that was applied, the ultimate conclusion on the motion was correct.
Section 23(1) of the Statutory Powers Procedure Act provides the right to remedy situations that are perceived as abusive. That right is independent of section
69(18) of the Act.
Although it is possible to conceive of circumstances where a police officer might have remedy under s. 23(1) of the Statutory Powers Procedure Act, notwithstanding compliance with section 69(18) of the Act, no such facts exist in this case.
Accordingly, in our view this appeal would also fail on the third issue. For the above noted reasons, this appeal is hereby dismissed.
DATED AT TORONTO THIS 18TH DAY OF SEPTEMBER, 2007.
Garth Goodhew David Edwards
Member, OCCPS Member, OCCPS