ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE DIANNE CLARKE
OCCPS #07-09
2007 ONCPC 9
Appellant
PEEL REGIONAL POLICE SERVICE
Respondent
Presiding Members:
Sylvia Hudson, Vice-Chair Noëlle Caloren, Member Garth Goodhew, Member
Appearances:
Harry G. Black Q.C., Counsel for the Appellant
Andrew J. Heal, Counsel for the Respondent
Hearing Dates: September 7 and October 10, 2006
This is an appeal by Constable Dianne Clarke from findings of guilt on two counts of misconduct by Superintendent R.J. Patton (the “Hearing Officer”) on November 16, 2005. The first was for discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at O. Reg. 123/98 (the “Code”) and the second for deceit contrary to section 2(1)(d)(i).
As well, this is an appeal from the penalty imposed by the Hearing Officer on January 16, 2006. That penalty was dismissal in the absence of resignation within seven days.
Preliminary Motion:
At the commencement of this Appeal on September 7, 2006, we heard a Motion brought by Mr. Black on behalf of Constable Clarke for an order under section 70(5) of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the “Act”) to permit the introduction of new or additional evidence.
That evidence consisted of:
Letters of commendation and appreciation from Constable Clarke’s personnel file;
Other letters concerning Constable Clarke’s character;
Information about Constable Clarke’s background and the potential impact of dismissal on her and her family; and
An affidavit setting out an example of an alleged inconsistent approach by the Service to allegedly similar misconduct involving a senior officer.
Mr. Black argued at length about the importance of us receiving each of these four types of evidence.
Mr. Black noted that a summary of the commendations and letters of appreciation received by Constable Clarke over the course of her career was tabled with the Hearing Officer during the course of the disciplinary proceeding. However, Mr. Black pointed out that not all of the actual commendations and letters of appreciation referred to in that summary were actually provided to the Hearing Officer.
He asserted that the summary failed to identify relevant commentaries about Constable Clarke’s professionalism, community work, bridge building and other activities that speak to her character and abilities. He further asserted that given the seriousness of the penalty imposed, it would be “unjust” not to admit the actual commendations and letters.
Mr. Black also sought to introduce further letters concerning Constable Clarke’s character and the effect of the penalty on her family. He noted that no character witnesses were called or submissions made concerning Constable Clarke’s personal background at the disciplinary hearing. He argued that it would be unfair for Constable Clarke to be penalized for the oversight of her counsel. He argued that such evidence was directly relevant to the appeal and the “ultimate penalty imposed”.
In addition, Mr. Black sought to introduce the affidavit of a member of the Peel Regional Police Association (the “Association”) concerning the response of the Peel Regional Police Service (the “Service”) to the conduct of an Inspector in a civil matter. Mr. Black asserted that this material goes to the issue of differential disciplinary approaches by the Service.
In support of his arguments Mr. Black drew our attention to Aujla and Ontario Provincial Police (1997), 2 O.P.R. 1152 (O.C.C.P.S.), Guenette and Ottawa Police Service (1998), 3 O.P.R. 1305 (O.C.C.P.S.) and R.v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 (S.C.C.).
Mr. Heal, on behalf of the Service, argued against the admission of the evidence in question.
Mr. Heal pointed out that at the original disciplinary hearing both the Appellant and her Counsel knew that dismissal was being sought. He underscored that there was a two-week period between final submissions on conviction and the delivery of that decision. As such, he asserted that that was more than sufficient time for the Appellant with “due diligence” to prepare sentencing submissions.
Mr. Heal further argued that even if this were not the case, the Appellant had ample opportunity to seek an adjournment for the purpose of obtaining any required evidence.
This could have included letters concerning Constable Clarke’s character and the impact of any penalty.
Mr. Heal argued that all of the letters of commendation and appreciation contained in Constable Clarke’s personnel file were brought to the Hearing Officer’s attention and given the appropriate weight in his decision. Mr. Heal conceded that the Hearing Officer did not see four of the original letters referred to in the summary provided. However, Mr. Heal asserted that the information contained in these letters would not have made any difference in the Hearing Officer’s ultimate decision.
In response to the affidavit of the Association, Mr. Heal took the position that it related to an incident predating the disciplinary hearing and thus could have been adduced as evidence. Further, Mr. Heal argued that the affidavit concerned an unrelated matter that bore no resemblance to the case at hand and therefore would not have affected the result of the Hearing Officer’s decision.
In support of these arguments, Mr. Heal drew our attention to Mullholland and Halton Regional Police (March 25, 2003, O.C.C.P.S.), Orr and York Regional Police (2000), 3 O.P.R. 1420 (O.C.C.P.S.) and R. v. Palmer.
Decision on Motion:
At the conclusion of arguments on September 7, 2006 we ruled on the Motion. The substance of our ruling was as follows.
The issue before us is whether or not we should receive new or additional evidence to be considered in the context of Constable Clarke’s appeal.
Section 70(5) of the Act provides that appeals to the Commission are normally to be heard on the record. However, the Commission also has the authority to receive new or additional evidence as it considers “just”. The Act does not set out what factors we are to take into account when attempting to assess whether or not it would be “just” to receive either new or fresh evidence.
However, in considering such questions the Commission has adopted the test set out in the Supreme Court of Canada’s decision in Palmer. At page 775 of that decision, Mr. Justice McIntyre sets out the following four-part test:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) The evidence must be credible in the sense that it is reasonably capable of belief; and
(4) It must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
These tests must be viewed in the context of the function of the Commission as set out in the Act.
We have considered the submissions of Mr. Black and Mr. Heal and the record of the original proceedings. The facts are clear. Constable Clarke was represented by counsel throughout her disciplinary hearing. She was found guilty of discreditable conduct and deceit. On November 16, 2005 Constable Clarke’s counsel made detailed submissions respecting penalty.
A number of letters and commendations were filed with the Hearing Officer and were highlighted in the Hearing Officer’s decision. This included thirteen letters of reference and two hand-written complimentary letters. As well, a 2001 International Year of Volunteer Certificate of Recognition was submitted.
We see no reason why the Appellant’s counsel, if he felt it was necessary, could not have, with due diligence, called character witnesses, provided evidence with respect to the impact of potential penalties or management’s approach to similar conduct. Further, it was open to the Appellant’s counsel to request an adjournment if further time was necessary to obtain this information.
Given the above, we do not believe that the first part of the Palmer test has been met. As such, we are not prepared to receive this evidence. However, we do note that the two original certificates of recognition and handwritten letters referred to in the summary of the Appellant’s personnel file before the Hearing Officer do not appear to have tabled with him.
According to section 70(5) of the Act this is an appeal “on the record”. Given that the summary and other documents referred therein were either directly or indirectly part of the hearing record we believe that in the circumstances it would be “just” to receive these four documents.
Following this determination we adjourned and reconvened on October 10, 2006 to hear arguments on the Appeal proper.
Background to Appeal:
The allegations giving rise to this Appeal stem from a ticket issued on September 30, 2003 at 4:42 p.m. to a vehicle parked at an expired meter at 270 Lakeshore Road East in Mississauga.
From the licence plate number, Constable Clarke was identified as the registered owner of that vehicle and sent a Notice of Impending Conviction and a Notice of Fine and Due Date. She did not pay the fine and a conviction was registered against her on December 9, 2003. A fine of $42.00 was ordered.
On January 5, 2004, Constable Clarke swore an affidavit before a Justice of the Peace. The purpose of this affidavit was to support an application to reopen the conviction registered against her. In this document, Constable Clarke claimed that the issuance of the ticket must have been in error because on the date in question she had been at work in Brampton and “was not on Lakeshore Blvd”. She asserted that the ticket must have been the result of an “Error in the licence plate number”.
In late January the Manager of the City of Mississauga Parking Control Authority received Constable Clarke’s application to reopen her conviction. She became concerned about what she felt were inconsistencies in the affidavit. As a result, she referred the matter to the Service’s Public Complaints Office.
On January 26, 2004 the complaint file was assigned to Detective Stephen Rowland of the Service’s Internal Affairs Bureau. In the following two and a half months Detective Rowland:
spoke to and interviewed the Parking Control Manager;
reviewed Constable Clarke’s file and driving record;
interviewed the parking control officer who issued the parking ticket;
visited 270 Lakeshore Road East and took pictures; and
obtained original copies of the related court documents.
No investigative action appears to have occurred during the two-month period from May 13, 2004 to mid-July, 2004.
On July 12, 2004 a “Notice of Investigation” was served on Constable Clarke by Staff Sergeant Marple. That Notice informed Constable Clarke that she was the “subject officer” in a matter under investigation by the Internal Affairs Bureau. It further stated that the Bureau had “received information of inappropriate conduct by yourself in relation to a Parking Infraction Notice issued by the City of Mississauga under the Provincial Offences Act. The allegations may constitute a discreditable conduct offence under the Ontario Police Services Act.” She was ordered to attend the Bureau “to be interviewed regarding this matter”.
On July 13, 2004 Detective Constable Rowland obtained a copy of Constable Clarke’s notes for September 30, 2003. On July 26, 2004 he interviewed her along with Detective Steege in the presence of both an Association representative and her lawyer. During the course of this interview Constable Clarke stated that she did not recall being at the location in question on September 30, 2003; did not know where 270 Lakeshore was; and would have no reason to be there.
It would appear that there was little further investigation in this matter over the course of the next two months because of other work demands. On September 20, 2004 Detective Rowland started canvassing stores in the vicinity of 270 Lakeshore Road East. On September 23, 2004 the owner of a local knitting store across the street from that address identified Constable Clarke as a regular client.
Detective Rowland prepared a search warrant to obtain personal information from Constable Clarke’s Human Resources files. He was subsequently advised by a Justice that a warrant was not required for that purpose. In late November Detective Rowland confirmed that Constable Clarke had an account with the Royal Bank.
Several weeks later on January 11, 2005 a search warrant was served on Constable Clarke’s bank. The information obtained showed that on September 30, 2003 at 5:17 p.m. Constable Clarke’s debit card was used to spend $231.35 at the knitting shop.
On January 26, 2005 Detectives Rowland and Steege interviewed Constable Clarke a second time. Constable Clarke acknowledged that she had been to Lakeshore Road East in the past to either play baseball or purchase yarn. However, she could not recall being there on September 30, 2003 although she admitted that “Anything is a possibility.”
As a result, a Notice of Hearing was prepared on January 27, 2005 alleging two counts of misconduct against Constable Clarke. The first allegation read:
On Monday January 5, 2004, Constable Dianne CLARKE, a member of the Peel Regional Police, attended at the Davis Court House located at 7755 Hurontario Street, Brampton and swore to an Affidavit in the presence of Justice of the Peace Hilda WEISS.
The ‘Affidavit in Support of a Request for Reopening’ was brought forward by Constable CLARKE in relation to a Parking Infraction Notice regarding her own private vehicle. The Affidavit stated that on December 9, 2003 Dianne CLARKE was convicted without hearing of the offence of “Parking Vehicle at Expired Meter.” Constable CLARKE advised that the ticket was an error; that she had never been in the area and was working at the time. Investigation revealed that Constable CLARKE was at that location on the date in question.
By providing false information on the Sworn Affidavit, her conduct was discreditable.
The second allegation read:
On January 26, 2005, Constable Dianne Clarke, a member of the Peel Regional Police, attended the Peel Regional Police Internal Affairs Bureau for an interview. The interview related to an Affidavit she had sworn to on January 5, 2004. Constable CLARKE continued to deny that she was in the area where the parking infraction occurred. Investigation determined that she was at the location on the date in question.
Constable CLARKE’s conduct was deceitful.
The Notice of Hearing was served on Constable Clarke on February 16, 2005.
The Hearing:
The disciplinary hearing commenced on March 1, 2005. There were a number of adjournments. Early in the process, counsel for Constable Clarke brought a Motion arguing that the Hearing Officer had no jurisdiction to proceed.
The focus of his argument was that the Notice of Hearing served on Constable Clarke on February 16, 2005 did not conform with section 69(18) of the Act. That provision states that: “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 … is of the opinion that it is reasonable, under the circumstances, to delay serving the notice of hearing.”
The Hearing Officer ruled on the Motion on June 15, 2005. In his decision he indicated that he was of the opinion that this investigation “took too long”. However, it was his finding that the six-month limitation period commenced on September 23, 2004 when Detective Rowland confirmed with the owner of the knitting store on Lakeshore Road East that Constable Clarke was a client. As such, in his view the Notice was served in time.
Evidence was received between October 26 and 28, 2005. There were five witnesses. These included the parking control officer, the parking control manager, the owner of the knitting store, Detective Rowland and an employee of the Royal Bank. There were a dozen exhibits. On the final day, counsel for the Service advised the Hearing Officer that both he and defence counsel were prepared to make submissions to penalty if the Hearing Officer were to find the Appellant guilty.
However, the Hearing Officer chose to set the matter over to November 16, 2005. On November 16, 2005 Constable Clarke was found guilty of both counts. On January 16, 2006, the Hearing Officer directed that Constable Clarke be dismissed unless she resigned within seven days.
Appellant’s Position:
In addition to his appeal from the findings of guilt made against Constable Clarke, Mr. Black argued that the Hearing Officer exceeded his jurisdiction by failing to comply with section 69(18) of the Act. Specifically, Mr. Black submitted that the Hearing Officer erred in dismissing the motion to stay the proceeding for failure to meet the mandatory six-month limitation requirement with respect to serving the Notice of Hearing. He asserted that this delay violated the Act and denied Constable Clarke natural justice.
On this point, Mr. Black drew our attention to a chronology of dates starting from January 26, 2004 when Detective Rowland was first directed to investigate a complaint from the Manager of Mississauga Parking Control. He noted the various investigative steps that Detective Rowland took over the following months including interviewing the Manager on March 9, 2004.
He asserted that it is clear that on March 9, 2004, Detective Rowland had a sufficient body of factual information, suggesting that Constable Clarke may have misconducted herself. He pointed out that Constable Clarke was served with a Notice of Hearing on February 16, 2005, well beyond the mandatory six-month limitation period.
In support of this position Mr. Black drew our attention to a number of decisions. These included Brannagan and Peel Regional Police Service (August 25, 2003, O.C.C.P.S.), Moyle and Palmerston Police Service (1995), 2 O.P.R. 1016 (O.C.C.P.S.), Coombs v. Toronto (Metropolitan) Police Services Board [1997] O.J. No.5260 (Div. Ct.), Gage v. Ontario (Attorney General) 1992 CanLII 8517 (ON CTGDDC), [1992] O.J. No. 696 (Div. Ct.), Ramsay v Toronto (City) Commissioners of Police (1988), 1988 CanLII 4706 (ON HCJ), 66 O.R. (2d) 99 (Div. Ct.), Gough v. Peel Regional Police Service [2006] O.J. No. 803 (Div. Ct.), Gough and Peel Regional Police Service (June 5, 2003, O.C.C.P.S.), Perrott v. Storm et al. (1985), 1985 CanLII 3068 (NS SC), 18 D.L.R. (4th) 473 (N.S.A.D.), Coulbeck and Toronto Police Service (November 23, 1995, Hearing Officer T. Kelly), Kane and Board of Governors of the University of British Columbia [1980] 1 S.C.R. 1105 (S.C.C.), Re Giles and Halton Regional Police Force et al. (1981), 1981 CanLII 1955 (ON HCJ), 33 O.R. (2d) 666 (Div. Ct.), Simpson v. Blacks Harbour (Village) [1995] N.B.J. No. 56 (N.B.C.A.), Harper v. R. (1982), 1982 CanLII 11 (SCC), 65 C.C.C. (2d) 193 (S.C.C.) and Lang v Ramsay (1992), 1992 CanLII 7567 (ON CTGD), 11 O.R. (3d) 190 (Div. Ct.).
Mr. Black also argued that the Hearing Officer erred by failing to find that there had been procedural unfairness in the manner in which the investigation against Constable Clarke was carried out. He drew our attention to section 56(7) of the Act which states: “Where a complaint is about the conduct of a police officer, the chief of police shall forthwith give the police officer notice of the substance of the complaint unless, in the chief of police’s opinion, to do so might prejudice the investigation.”
Regarding the findings of guilt, Mr. Black argued that Constable Clarke was found guilty of misconduct which was not the subject of the Notice of Hearing. He argued that Constable Clarke went to the hearing facing allegations that she provided false information on a sworn affidavit. He submitted that at the end of the hearing, Constable Clarke was found guilty of discreditable conduct on the basis that she allowed false information to remain before a court.
He also suggested that the Hearing Officer ignored relevant evidence, substituted his opinion for that of Constable Clarke, ignored essential elements of the offences charged (i.e. intent to deceive), failed to apply the correct standard of proof (clear and convincing evidence), improperly accepted hearsay evidence and made numerous factual errors. On these points he drew our attention to over 30 cases.
In addition, Mr. Black asserted that the Hearing Officer failed to take into account the unfairness inherent in the manner in which the investigation was conducted. He suggested that the investigation changed from criminal to disciplinary when it suited the interests of the investigators. Mr. Black argued that although the limitation period had long expired, investigators interviewed Constable Clarke a second time on January 26, 2005 for the sole purpose of obtaining a further denial in order to charge her with deceit.
Mr. Black also took issue with the penalty imposed. He argued that the penalty of dismissal imposed by the Hearing Officer was harsh and is not consistent with penalties imposed for similar offences. On this point he drew our attention to 59 cases.
As well, Mr. Black suggested that the Hearing Officer erred by not applying the appropriate test for dismissal, failed to apply principles of progressive discipline, penalized Constable Clarke for matters not reflected in the Notice of Hearing, reversed the onus of proof, failed to assess the impact of dismissal on the officer and her family and did not take into account the employer’s approach. On these matters he cited 18 cases.
In conclusion, Mr. Black requested that we quash the conviction against Constable Clarke. In the alternative he asked that we impose a penalty “less than that of dismissal”.
Respondent’s Position:
Mr. Andrew Heal, on behalf of the Respondent, requested that the appeal be dismissed. He argued that the Hearing Officer fairly considered the evidence and rendered a well-reasoned decision.
Mr. Heal reminded us of the standard of review on appeal. He specifically drew our attention to Lloyd and London Police Service (1999), 3 O.P.R. 1345 (O.C.C.P.S.), Blackburn and Niagara Regional Police Service (September 17, 2003, O.C.C.P.S.) and Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.).
Mr. Heal submitted that the Notice of Hearing had been served on Constable Clarke within the six-month period contemplated by section 69(18) of the Act. He suggested that the limitation period commences when knowledge of misconduct “first” came to the attention of the Service. This is not necessarily when a complaint is made, but when a sufficient body of factual information exists so as to create a reasonable belief that misconduct has occurred.
On these points he noted Coombs v. Toronto (Metropolitan) Police Services Board, Moyle and Palmerston Police Service and Brannagan and Peel Regional Police Service.
Mr. Heal argued that the Hearing Officer was correct to conclude that until Detective Rowland interviewed the manager of the knitting shop he lacked a sufficient body of evidence to have a reasonable belief that misconduct occurred. He asserted that this is particularly the case given that a sworn affidavit is presumed to be true, in the absence a reason to doubt its veracity. Pembina Institute for Appropriate Development v. Canada (Minister of Fisheries and Oceans) [1995] F.C.J. No. 1379 (F.C.T.D.)
Mr. Heal argued that the Hearing Officer was correct when he concluded that there was no breach of procedural fairness to the Appellant. He submitted that the Act does not limit either the length of time required to complete an investigation nor to submit an investigative report. However, he did acknowledge that investigators are governed by common law principles relating to inordinate or inexcusable delay.
Mr. Heal admitted that while the Hearing Officer found that there had been some delay in the investigation he however, properly concluded that this did not impede Constable Clarke’s ability to defend the charges against her. In any event, this was not the “clearest of cases” warranting our intervention.
In support of this argument, Mr. Heal cited Duriancik and Ontario (Attorney General) (1994), 1994 CanLII 10970 (ON CTGDDC), 114 D.L.R. (4th) 504 (Div. Ct.), rev’d 1997 CanLII 14480 (ON CA), 147 D.L.R. (4th) 191 (C.A.), Ramsay v. Toronto (City) Commissioner of Police), Police Complaints Commissioner v. Will (1993), 67 O.A.C. 317 (Div. Ct.) and Groat v. Quinte West Police Service (2002), O.J. No. 1741 (Div. Ct.).
Mr. Heal argued that there was an ample evidentiary basis for a finding of discreditable conduct. He stated that the evidence that Constable Clarke had parked her vehicle at 270 Lakeshore Road East on September 30, 2003 was “overwhelming”. In the face of this Constable Clarke denied that she knew that address or had ever been at that location.
Constable Clarke’s ongoing denials were contradicted by evidence of the manager of the knitting store and her own banking records. Mr. Heal asserted that given these facts, it was reasonable for the Hearing Officer to conclude that Constable Clarke acted in a manner “likely to bring discredit upon the reputation of the police force”. Mr. Heal supported this argument by citing More and York Regional Police Service (2001), 3 O.P.R. 1450 (O.C.C.P.S.).
Mr. Heal also argued that the Hearing Officer’s finding of guilt on the deceit charge was correct. He pointed out that section 2(1)(d)(i) of the Code defines deceit as “knowingly makes or signs a false statement in a record”. He asserted that there was more than sufficient evidence on the record to support such a finding. Mr. Heal cited Lloyd and London Police Service, Lichtenfield and Thunder Bay Police Service, (December 9, 2003, O.C.C.P.S.) and Wilson and Ontario Provincial Police (1982), 2 O.P.R. 539 (O.P.C.).
Mr. Heal acknowledged that there were minor errors of a typographical nature in the Hearing Officer’s decision, but went on to suggest that they did not affect the reasoning therein. He asserted that the decision was based on the direct evidence of witnesses who were subject to lengthy cross-examination. In any event, Mr. Heal reminded us that hearsay is admissible at disciplinary proceedings. On this latter point he noted Guenette and Ottawa-Carleton Regional Police Service (1998), 3 O.P.R. 1305 (O.C.C.P.S.), Statutory Powers Procedure Act R.S.O. 1990, c. S.22 and Sopinka, “The Law of Evidence in Canada”, (Toronto: Butterworths) at page 308.
On the question of penalty, Mr. Heal reminded us that the Commission should only intervene to vary the Hearing Officer’s decision when there is a manifest error in principle, or the proper factors were not considered. Further, he pointed out that the Commission should not re-hear a case or substitute its opinion unless the Hearing Officer’s assessment is patently unreasonable or incorrect in principle.
Mr. Heal supported his argument by citing Krug and Ottawa Police Service (January 21, 2003, O.C.C.P.S.), Blackburn and Niagara Regional Police Service, Groot and Peel Regional Police Service (2002), 3 O.P.R. 1552 (O.C.C.P.S.) and Allen and Hamilton- Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.).
Mr. Heal asserted that the Hearing Officer properly reviewed the key elements in determining penalty and that dismissal was within the range of dispositions available to him. In particular, Mr. Heal argued that the Hearing Officer properly considered Constable Clarke’s employment history, such as her work in the Court Security Division. He pointed out that Constable Clarke worked in the court system, yet falsely swore an affidavit. He noted that Constable Clark’s discipline record was not unblemished. On these points he drew a number of cases to our attention.
Mr. Heal concluded by requesting that we dismiss the appeal and confirm the decision of the Hearing Officer.
Decision:
In the case before us, the issues are threefold. In addition to challenging the findings of guilt and appealing the penalty imposed by the Hearing Officer as being unduly harsh and excessive, this appeal deals with the Hearing Officer’s jurisdiction to proceed with Constable Clarke’s disciplinary hearing, namely the question of whether or not Constable Clarke was served with a Notice of Hearing within the six-month limitation as required by section 69(18).
This latter issue will be dealt with first as its outcome has the potential of obviating the need to further consider the other issues raised in this appeal.
Disciplinary hearings against police officers in Ontario are governed by the Act. Section 69(18) directs that “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 … is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing”.
As noted above, Mr. Black argued on behalf of Constable Clarke that the Hearing Officer had no jurisdiction to hear the case against her, his contention being that the condition set out in section 69(18) was not met given that on March 9, 2004, Detective Rowland had a sufficient body of factual information to support a charge of misconduct yet a Notice of Hearing was not issued and served until February 16, 2005, a date far beyond the six-month limitation period.
This Commission has had the occasion to consider the extent of the requirement of section 69(18) in previous decisions. In Moyle and Palmerston Police Service at pages 1022 to 1023, the Commission expressed the view that:
… a broad rather than a narrow reading of the language is to be preferred. In our opinion, the purpose of subsection 60(12) [now 69(18)] is to prevent delay and to ensure a speedy process. This is supported by the decision of the Board of Inquiry in VanPuyyen and Niagara Regional Police Force (dated October 4, 1993), while overturned by the Divisional Court on an unrelated question. At page 3 of its decision the panel states:
The purpose of subsection 60(12) [now 69(18)] should be considered. It is designed to protect officers from delay in holding an internal hearing. No such protection arises when a Board of Inquiry is ordered. It is reasonable to suppose that the pressure of and preparation for an internal hearing by one’s “boss” is a greater concern than that where an independent tribunal is involved.
If, therefore, a Chief of Police or a Board come 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.
However, the section is not draconian. It recognizes that there may well be circumstances in which it is not advisable to serve a Notice of Hearing within the time period set out. In those circumstances, it is not enough to keep the determination as to the reasonableness of delaying the procedure in the decision maker’s mind. That determination must be made at the time and should be reflected on the record.
The reasoning behind this approach was further elaborated on by the Commission in Gough and Peel Regional Polie Service, which, although its decision regarding the statutory time for appeal was overturned by the Divisional Court, had occasion to comment on the intention of section 69(18) at pages 3 to 4 as follows:
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 officer 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 should have been done.
This approach was reiterated in Brannagan and Peel Regional Police Service at page 8 where the Commission restated the test for determining when the six-month period begins to run as follows:
To our mind the six-month period does not commence from the date of the making of a bald and unsubstantiated allegation of wrongdoing against a police officer. Rather, as was noted in Moyle at page 1023 it commences at the point in time when a review of the evidence establishes a “clear body of factual information supporting allegations of alleged misconduct”.
It is also obvious that the language of section 69(18) is mandatory, not merely directive or procedural, as evidenced by the use of the words “no notice of hearing shall be served”. This is a clear indication in our view that a failure to request the requisite extension within the designated timeline will be fatal to the right to prosecute a police officer on the basis of a complaint regarding their conduct.
We are also satisfied on the basis of applicable case law that statutory time limits such as the one set out in section 69(18) go directly to the decision maker’s jurisdiction. In other words, not only does the first instance decision maker derive his or her jurisdiction from the laying of charges and the issuance of a notice of hearing, such procedural requirements must be complied with within the time limits set out in the statutory provision in order for the decision maker to be granted jurisdiction. Simpson v. Blacks Harbour (Village)
Further, the principles of natural justice and the entitlement to notice which they create would, in circumstances such as the ones in this case, operate to ensure that the subject of a public complaint is dealt with knowingly and without delay: “The timing of the notice required … to be given forthwith, is crucial. It is the officer’s fist chance to know the exact case against him, to get legal advice in respect of it, and to prepare to make his defence.” Gage v. Ontario (Attorney General) at page 4
In this regard, section 56(7) of the Act provides that in the case of a complaint concerning the conduct of a police officer, the chief of police shall “forthwith” provide the police officer with notice of the substance of the complaint, unless the chief of police believes that such might prejudice the investigation.
Considering the facts of this case, we are unable to conclude that the requirements of section 69(18) were complied with, notwithstanding the accepted understanding that the limitation period will not start to run until a clear body of facts has been collected to support the allegations of misconduct arising from a complaint.
We highlight in this respect, the fact that the Notice of Hearing was served on Constable Clarke some twelve and a half months (February 16, 2005) after the complaint against her was assigned to Detective Rowland for investigation (January 26, 2004). While we accept that sufficient evidence was not available to Detective Rowland at the outset of his investigation, it is certainly reasonable to conclude that, having interviewed the Parking Control Manager, he had enough evidence to issue a Notice of Hearing by March 9, 2004, or at the outside, by July 26, 2004, following his first interview of Constable Clarke.
It is also clear from the record that the twelve and a half month investigation period is punctuated by several extensive periods of investigative inactivity which can certainly not be explained by an inherent complexity of the case being investigated; and that at no point during this period was a request made to the Board to extend the time limit for issuance of the Notice of Hearing.
We are also quite concerned that Constable Clarke was not given proper notice of the substance of the complaint against her at the outset as required by section 56(7). Rather, some six and a half months into the investigation, on July 12, 2004, Constable Clarke received a Notice of Investigation, identifying her as the subject of an investigation, which suggests that at that juncture, the investigators felt they had sufficient information to confront her in an interview. In addition, the record suggests that at this point in time, Constable Clarke was or was about to become the subject officer of a criminal investigation. This fact is supported by the steps taken in the investigation to obtain search warrants alleging a breach of section 134 of the Criminal Code (Making a False Statement Under Oath).
We are also unable to accept the contention that Constable Clarke’s second interview with the Internal Affairs Bureau investigators on January 26, 2005 could rightfully support a charge of deceitful conduct, when on that occasion she merely repeated her denial of having been on Lakeshore Boulevard on September 30, 2003, as she had previously articulated it in the first interview of July 26, 2004. To accept that this consistent denial could, after the mere passage of time and the further gathering of evidence, create the basis for a distinct charge of deceit, would in our view amount to the sanctioning of an essentially artificial mechanism intended to circumvent the mandatory nature of the statutory limitation set out in section 69(18). This in turn would bring about a result which is essentially contrary to the intention of the statutory provision.
For all of the above reasons, we conclude that the Hearing Officer did not have jurisdiction to hear the case against Constable Clarke as the Notice of Hearing exceeded the six-month limitation period. Accordingly, it is therefore ordered that the two convictions for misconduct against Constable Clarke and the corresponding penalty be quashed.
DATED AT TORONTO THIS 18TH DAY OF JUNE, 2007.
Sylvia Hudson Vice Chair, OCCPS
Noëlle Caloren Member, OCCPS
Garth Goodhew Member, OCCPS