OCCPS #07-18
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
Citation: Cole v. Ray and Ontario Police, 2007 ONCPC 18
REASONS FOR DECISION
SUSAN COLE
Appellant
(Respondent on Motion)
and
SERGEANT (RETIRED) DAVID RAY
Respondent
(Applicant on Motion)
ONTARIO PROVINCIAL POLICE
Respondent
Presiding Members:
Noëlle Caloren, Member
Hyacinthe Miller, Member
Appearances:
Susan Cole, Appellant
Leo Kinahan, Counsel for the Respondent
Superintendent Michael Shard, Ontario Provincial Police
Hearing Date: May 2, 2007
Background:
Sergeant David Ray of the Ontario Provincial Police (the “OPP”) was charged with breach of confidence as a result of an allegation that he had improperly disclosed information pertaining to Ms. Cole. A disciplinary hearing, presided over by Superintendent (retired) Robert Fitches (the “Hearing Officer“), was held on October 24 and 25, 2006.
In an oral decision rendered October 27, 2006, the Hearing Officer concluded that “the standard of clear and convincing evidence had not been met” and found Sergeant Ray not guilty of breach of confidence. He went on to state: “Written reasons shall be prepared and will be released to the parties on or before December 1st, 2006.”
Ms. Cole filed a Notice of Appeal with the Commission on October 29, 2006. On October 31, 2006, David Ray retired from the OPP. The Hearing Officer released his written decision on December 1, 2006.
Mr. Kinahan, on behalf of David Ray, brought this motion to challenge the authority of the Commission to proceed with Ms. Cole’s appeal.
Applicant’s Position:
Mr. Kinahan argued that Mr. Ray is no longer a police officer as defined by section 2 of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”). Given Mr. Ray’s status, Mr. Kinahan asserted that this Commission no longer has any appellate authority over his client under section 70 of the Act. Mr. Kinahan drew our attention to two cases in support of his argument: Holder and Ontario Provincial Police (2002), 3 O.P.R. 1576 (O.C.C.P.S.) and Cole and Alarie and Ontario Provincial Police (December 4, 2006, O.C.C.P.S)
By way of background information, presumably to impress upon this panel that Mr. Ray’s retirement should not be considered as a form of evasive action, Mr. Kinahan emphasized the procedural complications which characterized the processing of Ms. Cole’s complaint and resulted in various unexpected delays.
He highlighted the fact that on account of these delays, Mr. Ray himself elected to postpone his retirement, which was initially scheduled for September of 2006, to a date following the hearing of the complaint. Furthermore, all the parties were aware of Mr. Ray’s imminent retirement at the time of scheduling of the hearing.
Mr. Kinahan also noted that the maximum penalty which the Act provides for in the case of a conviction for misconduct is dismissal or separation from the OPP. Since Mr. Ray had already retired, that was the equivalent of the maximum penalty.
In summary, Mr. Kinahan asserted that the Commission has no jurisdiction to deal with the appeal given that Mr. Ray is no longer a police officer or employed by the OPP. Mr. Kinahan argued that the matter is moot as the Commission can impose no further penalty against Mr. Ray.
Respondent’s (OPP) Position:
Superintendent Shard argued that section 70(1) of the Act must be read in context with the cases presented. He suggested that the purpose of Part V of the Act must be viewed as a whole and particularly when interpreting section 70(1).
The scheme of disciplinary penalties is tied to the employment of a police officer and therefore, once the individual ceases to be a police officer, there can be no further jurisdiction.
He noted that unless the statute specifically provides jurisdiction over former police officers, no such jurisdiction exists. He urged us to look at Ross v. British Columbia Psychological Assn. (1987), 1987 CanLII 2481 (BC CA), 19 B.C.L.R. (2d) 145 (B.C.C.A.) as support for the proposition that only a body that has expressly been given the authority by legislation may continue to hold jurisdiction over a retired individual. He submitted that the Act does not confer this authority on the Commission.
Respondent’s (Susan Cole) Position:
Ms. Cole asserted that a live issue existed between the parties and that she retained her role as a complainant under the Act, irrespective of the passage of time. She referred the panel to Christian and Grbich and Aylmer Police Service (February 13,
2002, O.C.C.P.S.) in support of her argument. She argued that further support for this position comes from the fact that the Act is a public complaint statute, the purpose of which is the general oversight of police services.
She also inferred that section 25 of the Statutory Powers Procedure Act R.S.O. 1990, c. S. 22 as amended applied to her right to stay proceedings, i.e., the October acquittal of David Ray. On that basis, she argued that the retirement of Mr. Ray should not remove jurisdiction from the Commission to hear the disciplinary appeal.
In her consideration of the issues and the law, Ms. Cole argued that as the Hearing Officer’s oral findings were not accompanied by written reasons, she was placed in a precarious position with respect to the appeal process. She also invoked section 15 of the Canadian Charter of Rights and Freedoms in support of her position that she is equal under the law to the respondent in this case and for that reason must be allowed to proceed with her appeal. Ms. Cole also highlighted her status as a public complainant and the Commission’s Rules of Practice.
Ms. Cole drew a distinction between this case and the Holder decision where Holder was the applicant, while in the case before us, she was the applicant and Mr. Ray, the officer, was the respondent. She further suggested that the focus of the appeal process is the Hearing Officer’s decision and that by virtue of that initial decision, there had to be a “freezing” of Mr. Ray’s police officer status. She argued that to approach the matter any differently would open the door to back-room deals, presumably intended to allow police officers to escape the Commission’s authority.
By way of remedies, Ms. Cole asks that the appeal against the decision of the Hearing Officer be allowed, that the Commission’s decision in Alarie be reversed and the two appeals be heard together.
In support of her position, Ms. Cole drew our attention to Ashby and Brockville Police
Service (1990), 2 O.P.R. 882 (O.P.C.), Younan and Ontario Provincial Police (May 6,
2004, O.C.C.P.S.), McCann v. Ontario (Police Services Board of Inquiry) [1994] O.J. No. 202 (Div. Ct.), Ontario v. Ontario Public Service Employees Union (OPSEU) [1990] O.J. No. 635 and Buckle and Ontario Provincial Police (December 14, 2004, O.C.C.P.S.).
Decision:
The Commission’s jurisdiction to hear appeals under Part V of the Act is limited. Section 70 of the Act, which deals with Appeals, reads as follows:
70(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing … 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 a 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 proved 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).
With respect to determining an individual’s status as a police officer, section 2 of the
Act, Definitions, is instructive. It provides:
“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.
As was noted in Holder, a case involving a retired OPP sergeant seeking to appeal what he alleged was a constructive dismissal: “The Commission does not have jurisdiction to deal with persons who are not members of a police service …”
On October 31, 2006 Sergeant Ray retired from the OPP. Therefore, based on the above referenced decision, we conclude that he is no longer a police officer.
The Commission is a creature of statute and can neither imply nor expand its jurisdiction. Nor can the Commission re-open a matter that has already been adjudicated. In this case, David Ray, by virtue of his retirement from the OPP in October of 2006 is no longer a police officer as defined in legislation. Section 15 of the Charter and the stay provisions of the Statutory Powers Procedure Act find no application in this particular set of circumstances.
It is the status of the parties at the time of the hearing of the appeal that is relevant, not their status on the date that the decision appealed from was rendered. To conclude otherwise would impede the parties from generally going about their business and from giving effect to decisions, the timing, sequence and overall purposes of which may be wholly unconnected to the issues involved in the appeal.
Finally, the Commission can provide no redress in the Alarie matter concluded in December of 2006. The proper forum would have been an appeal to Divisional Court. Therefore, the remedies requested by Ms. Cole under the Act cannot be entertained.
Given the above, the Respondent’s Motion is granted and the Commission declines to hear Ms. Cole’s appeal.
DATED THIS 18TH DAY OF DECEMBER 2007.
Noëlle Caloren Hyacinthe Miller
Member, OCCPS Member, OCCPS