Elizabeth Galazka v. Ottawa Police Service and Constable Sean Ralph, 2011 CanLII 101568

OCPC-# 11-14

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED

Citation: Galazka v. Ottawa Police Service and Ralph, 2011 ONCPC 13

B E T W E E N:

ELIZABETH GALAZKA

APPELLANT

-and-

OTTAWA POLICE SERVICE

-and-

CONSTABLE SEAN RALPH

RESPONDENTS

DECISION

Panel: Roy B. Conacher, Q.C., Member Zahra Dhanani, Member

Hearing Date: August 14th, 2011

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, Ontario M7A 2T3 Tel: 416-314-3004 Fax: 416-314-0198 Website: www.ocpc.ca

Appearances:

1. Elizabeth Galazka, Self-Represented Appellant

2. Mr. Vincent Westwick, Counsel for the Respondent, Ottawa Police Service

3. Mr. William Carroll, Counsel for the Respondent, Constable Sean Ralph

Introduction

1. This is an appeal by a public complainant, Elizabeth Galazka, (the “Appellant”), from a decision of Deputy Chief Terence Kelly (ret.), (“Hearing Officer”) granting a motion to quash two charges of misconduct brought against Constable Sean Ralph (“Constable Ralph”) of the Ottawa Police Service (“OPS”). Both Constable Ralph and the OPS are respondents in this appeal.

2. On February 10th, 2010 Constable Ralph was served with notice that a disciplinary hearing was to be held into his conduct. He was alleged to have committed two acts of misconduct namely, insubordination, contrary to section 2(1)(b)(ii) of the code of conduct set out in Ontario Regulation 123/98 (the “Code”), as amended, and therefore contrary to section 74(1)(a) of the Police Services Act, R.S.O. 1990, c.p.15, as amended (the “Act”).

3. The charges were laid as a result of Constable Ralph’s alleged unlawful CPIC searches of Ms. Elizabeth Galazka (the “Appellant”) on November 15th, 2002; August 5th, 2004 and August 15th, 2007. CPIC searches were also allegedly made of the Appellant’s partner, but these searches were not the subject of the charges against Constable Ralph.

4. On June 21st, 2010, there was a disciplinary hearing into the allegations against Constable Ralph. A full hearing on the merits was not conducted. A copy of an Agreed Statement of Facts (“ASF”) undated but marked Exhibit 4 was filed. The ASF was only agreed to by OPS and by Constable Ralph. The Appellant did not agree to it.

5. At the commencement of the hearing, a preliminary motion was brought by counsel for Constable Ralph to quash the charges.

the Hearing Officer rendered a decision granting the motion and quashing the charges against Constable Ralph. The Appellant now appeals this decision.

6. The actions of Constable Ralph giving rise to the disciplinary charges against him took place prior to the amendments to the Act on October 19th, 2009 and accordingly all references herein to the statutory provisions are to those in effect at the time of those events.

Decision

7. For the reasons set out below, we grant the appeal, and revoke the Hearing Officer’s decision to quash the charges. We order this matter be returned to the Hearing Officer to continue with the hearing.

Background

8. The Appellant is an accountant and property owner, who lives in Ottawa. There was very little introduced in evidence about her other than the very relevant fact that she has had on-going property issues with Constable Ralph’s in-laws.

9. Constable Ralph has been a police officer with the OPS since May 27th, 2002. It was noted by the Hearing Officer in his decision that Constable Ralph has a “stellar career record”.

10. Constable Ralph did not testify during the motion before the

Hearing Officer.

11. Constable Ralph has known the Appellant since 2001, when she and her husband purchased a cottage next door to the cottage belonging to Constable Ralph’s in-laws.

12. Ms. Galazka and her husband had commenced a civil action against Constable Ralph’s in-laws, as a result of the on-going property disputes.

three occasions: November 15th, 2002, August 5th, 2004, and

August 15, 2007.

14. Constable Ralph had no legitimate law enforcement reason to conduct these searches.

15. The Appellant filed a complaint with the OPS regarding the conduct of Constable Ralph alleging that he had conducted unlawful CPIC searches on her and her partner. By letter from the OPS dated April 14th, 2009, the Appellant was advised that the OPS had determined that Constable Ralph’s actions constituted improper conduct and their recommendation was to resolve the complaint by informal resolution. The suggested penalty was to have Constable Ralph forfeit 24 hours pay and be counselled regarding the policies and procedures on the use of the CPIC system. The letter further advised the Appellant that if she was not satisfied with the decision, she could request a review by the Ontario Civilian Police Commission (the “Commission”) by filing that request within 30 days of the date of the letter.

16. Constable Ralph agreed to the informal resolution but the Appellant did not. On April 29, 2009, the OPS proceeded to carry out the informal resolution by having Constable Ralph counselled on the CPIC policies. The second part of the informal resolution, namely, the forfeiture of 24 hours, was not imposed on that date.

17. The Appellant subsequently filed a request to the Commission for review of the decision on the informal resolution and, after a review, on January 13, 2010, the Commission referred the matter back to OPS for a disciplinary hearing into the conduct of Constable Ralph.

18. There is no evidence that Constable Ralph has forfeited the 24 hours. There is no clear evidence on the record as to what occurred in the “counselling” session or how long it lasted.

19. The OPS began the informal resolution without the consent of the Appellant and proceeded with it before the Appellant’s procedural right to file for a review with the Commission had lapsed. The OPS acknowledges this procedural error.

20. At the outset of the disciplinary hearing, counsel for Constable Ralph brought the motion requesting that the Hearing Officer quash the charges on the grounds that Constable Ralph had already been “punished” for the offence, and to proceed with the hearing would contravene the Canadian Charter of Rights and Freedoms (the “Charter”). He argued that this would amount to “double jeopardy” because the officer would be punished twice for the same offence.

21. On September 13th, 2010, the Hearing Officer granted the motion and quashed the charges, stating “It is my considered opinion after lengthy deliberations, that to proceed with this hearing would be unfair to the officer concerned and would bring disrepute to the disciplinary process which should be seen to be just.”

22. On October 6th, 2010, the Appellant filed a Notice of Appeal with the Commission appealing the Hearing Officer’s decision.

Submissions of the Appellant

23. The Appellant is self-represented and waived the right to legal representation. Prior to the hearing, the Appellant filed a factum and at the hearing of the motion made oral submissions. It is the Appellant’s position that she did not consent to the informal resolution.

24. The Appellant stated that she is an accountant and as such is held to a strict and consistent standard of discipline. She submitted that the standard for police officers should be no different and should be adhered to in this case consistent with the law and the established policies dealing with CPIC.

25. Ms. Galazka asserted that the double jeopardy rule is a principle of criminal law and does not apply in this case. She further argued that even if it does apply, the discipline that Constable Ralph received would not meet the standard on the definition of what constitutes “punishment”. She referred to R. v. Wigglesworth 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541.

26. The Appellant asserted that unlawful CPIC searches are a serious breach of police conduct and there is a very important public policy requirement to follow procedures in dealing with this kind of breach.

27. She submitted that the Hearing Officer knew that she had not consented to the informal resolution and that he was aware or should have been aware of the procedural error.

28. She submitted that she did not consent to the informal resolution because the penalty was not consistent with the serious breach of policy. She elaborated that the recent case law would suggest that

3 days loss of pay was appropriate for an unlawful CPIC check. She stated that this case was different because Constable Ralph

conducted unlawful CPIC searches on three separate occasions and on two different people. She submitted that therefore the penalty should be higher.

29. The Appellant submitted in her factum, that the criminal law principle of double jeopardy was not appropriate to apply to the police disciplinary proceedings in the circumstances of this case. She asserted that counselling was not “punishment” nor was there any “conviction” registered. Also, the forfeiture of 24 hours was not carried out so that, even if the counselling was considered punishment, the informal resolution procedure was not completed. The Appellant challenged the argument by counsel for Constable Ralph that the officer was reprimanded. She stated that nowhere in the informal resolution letter is reprimand mentioned and counselling does not rise to the level of a reprimand. It is an educating of the officer, not a penalty. She referred to section 11 (h) of the Charter and submitted that the facts of this case do not support a finding that Constable Ralph has already been found guilty, convicted and punished.

30. The Appellant submitted that Hearing Officer erred in law by failing to consider that counselling was rehabilitative not punitive and by failing to consider the ratio of the principle of double jeopardy in its application to the facts of this case. She also submitted that he further erred when he applied the rules of natural justice to justify the refusal to conduct a hearing.

31. The Appellant asked that the decision of the Hearing Officer be reversed and the matter returned to the OPS. She requested the Commission to order that Constable Ralph be charged under the Act and a disciplinary hearing be held.

32. Finally, the Appellant stated that she was in full agreement with the submissions of the OPS.

Submissions of the Respondent Ottawa Police Service

33. Mr. Westwick submitted that the decision is just plain wrong. He argued that this was a matter of statutory non-compliance and that the Act states very clearly the need for consent of the officer and complainant to proceed with an informal resolution. He referred to Section 64 (4) which provides: “The chief of police may resolve the matter informally without holding a hearing, if the police officer and the complainant consent to the proposed resolution.” [emphasis added]

34. Mr. Westwick stated that there is no ambiguity in the law on this matter and the legal result is that the imposed informal resolution in this case is a nullity. The OPS did not have the consent of the complainant and therefore could not proceed with an informal resolution. This principle is supported in case law. Corp. of the Canadian Civil Liberties Association v. Ontario (Civilian Commission on Police Services), 2002 CanLII 45090 (ON CA), [2002] O.J. No. 3737 and Sommers v. Ontario (Civilian Commission on Police Services), [2005] O.J. No. 1838.

35. He submitted that the Hearing Officer erred when he found that proceeding with a hearing of this matter would be an abuse of process because Constable Ralph “will face the same set of facts that have already been dealt with on an informal basis.” Mr. Westwick stated that, given that the informal resolution was a legal nullity, the decision of the Hearing Officer must have no effect.

36. He argued that the Hearing Officer’s decision does not meet the standard of reasonableness articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, because the Hearing Officer did not give sufficient reasons as to how he made his decision.

37. Mr. Westwick further asserted that the decision does not meet the standard of reasonableness because the Hearing Officer only looked at “fairness” to the officer and there was no consideration of fairness to the Appellant.

38. Mr. Westwick submitted that Hearing Officer erred because he applied the wrong legal test. Concepts of double jeopardy are strictly meant for criminal law proceedings. This is an employment law matter and double jeopardy does not apply in this context. Informal resolution involves participation by all parties in achieving a settlement of a complaint without a formal disciplinary hearing where the conduct is not of a serious nature.

39. Mr. Westwick further submitted that Constable Ralph never faced double jeopardy because the informal resolution was not completed. While the officer may have been “counselled” in a meeting, he had not forfeited any pay.

40. Mr. Westwick argued that while the Hearing Officer focused on fairness to the officer, there was an absence of explaining how it was not unfair for a police officer who has breached the Code of Conduct to have to face the appropriate disciplinary process.

41. Mr. Westwick also asserted that Constable Ralph knew that the Appellant had not consented to the informal resolution and he knew or ought to have known the requirements under the Act, and therefore should have known that the informal proceeding was incorrect. Constable Ralph is not therefore prejudiced by quashing the decision.

42. Mr. Westwick cited Browne v. Ontario Civillian Commission on Police Services (2001), 2001 CanLII 3051 (ON CA), 207 D.L.R. (4th) 415 (C.A.), which held that the legislative purpose of the Act is demonstrably to increase public confidence in the provision of police services, including the processing of public complaints.

43. Finally, Mr. Westwick requested that the Commission reverse the

Hearing Officer’s decision and return this matter to the OPS.

Submissions of the Respondent Constable Ralph

44. Mr. Carroll submitted that the decision of the Hearing Officer is supported by evidence and by law.

45. Mr. Carroll argued that Constable Ralph has accepted responsibility for his transgression and therefore has accepted the penalty imposed. He referred to the ASF filed.

46. He further asserted that the penalty imposed was within the realm of acceptable penalties relative to other similar factual circumstances for inappropriate CPIC access.

47. Mr. Carroll submitted that there was no evidence to support the conclusion that Constable Ralph knew that the Appellant did not consent to the informal resolution. He further argued that the officer is not responsible for the errors of the OPS in implementing the informal resolution before the expiry of the statutory time and should not be penalized for their mistakes.

48. Mr. Carroll argued that the Hearing Officer considered the evidence before him and was mindful of the Appellant’s position, the seriousness of the offence and appropriate penalties. He asserted that even though the statutory framework was not followed, Constable Ralph was still disciplined.

49. Mr. Carroll asserted that the Hearing Officer had a very narrow issue to address. The motion was on the issue of double jeopardy, not the statutory rights of the Appellant. Mr. Carroll argued that the officer should not be exposed to punishment two times, and therefore should not have to go through a process a second time.

50. He argued that the standard of review to be applied to the Hearing Officer’s decision is reasonableness, and that his decision is owed a considerable level of deference. Dunsmuir, supra.

51. Mr. Carroll submitted that the Hearing Officer’s decision was

“complete and fair” and therefore should be confirmed.

Reasons for Decision

52. The standard of review for the Commission with respect to the Hearing Officer’s factual findings is reasonableness. McCormick v. Greater Sudbury Police Service (2010), ONSC 270 (Ont. Div. Ct.).

53. The standard of review with respect to the Hearing Officer’s interpretation of the law is correctness. Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (Ont. C.A.).

54. The Supreme Court of Canada described the standard of reasonableness in Dunsmuir, supra:

“Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable rational solutions. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision- making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

55. Past Commission decisions have spoken to our role on an appeal, noting that we are not to second-guess the decision of a hearing officer, but rather to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence, and are articulated in a logical manner. Precious, supra, and Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div.Ct.)

56. In certain limited cases it may be open to us to reach a different conclusion from the trier of fact. However, we should only intervene if there has been an error in principle, or relevant factors

have been ignored. Williams, Wilson and Ontario Provincial Police (November 20, 2006, OCCPS), Favretto and Ontario Provincial Police (February 13, 2002, OCCPS) and Karklins and Toronto Police Service (September 25, 2007, OCCPS).

57. An appeal to the Commission is an appeal on the record. Unlike the trier of fact, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to the Hearing Officer’s findings, unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence. Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell Ont 1583 (Div. Ct.).

58. In reviewing the Hearing Officer’s decision we find that significant errors were made. Specifically, we have determined that:

a. the Hearing Officer erred in law by failing to consider the mandatory requirements of the relevant statutory framework;

b. the Hearing Officer erred in law by applying an inappropriate criminal legal standard, namely double jeopardy in the context of an administrative disciplinary process to decide a labour relations issue; and

c. the Hearing Officer failed to consider all of the submissions made by the parties and failed to set out logical reasons for his decision. As such, the reasons fail to satisfy the functional review, as cited in Dunsmuir, supra, and are insufficient.

Taken together, we find that the errors in this decision amount to a misunderstanding and misapplication of the law which is so serious that the decision cannot stand.

Statutory Framework

59. The Act establishes standards of conduct and the methods of exercising the discipline of police officers. It sets out the statutory framework for the resolution of public complaints about police conduct.

60. The Act provides:

“s.58. (1) If, at any time before or during an investigation into a complaint about the conduct of a police officer the conduct appears to be obviously conduct that is not of a serious nature, the chief of police may resolve the matter informally, if the police officer and the complainant consent to the proposed resolution.

s.59 (1) The chief of police shall determine whether a complaint is about the policies of or services provided by the police service or the conduct of a police officer and shall ensure that every complaint is appropriately dealt with as provided by section 60.”

s. 59 (2) The chief of police shall notify the complainant in writing of his or her determination that the complaint is about the policies or services provided by the police service or is about the conduct of a police officer and of the complainant’s right to ask the Commission to

review the determination within 30 days of receiving the notice.

s.64 (13) The chief of police shall take no action to resolve the matter informally until,

(a) the 30-day period in which the complainant may ask for review has expired, without a review being requested; or

(b) if the complainant asked for a review within the

30-day period, the Commission has completed its review and then, only if the Commission’s

decision is such that there may be an informal

resolution of the complaint.” [Emphasis added]

61. There is no discretion to be exercised nor scope for alternate interpretations of these mandatory sections.

62. In this case, informal resolution was not possible because the Appellant did not consent and the 30 day window within which she could request a review had not lapsed. Corp. of the Canadian Civil Liberties Assn, v. Ontario (Civilian Commission on Police Services) supra, Sommers, supra.

63. The fact that the informal resolution was being carried out by the OPS despite the legislative framework, cannot make it legally acceptable. This is an error in law. The fact that the error was made by the OPS and not the officer does not validate the action taken by the OPS in partially implementing the proposed informal resolution. That action clearly contravenes the statutory provisions designed to protect the rights of complainants and is a nullity ab initio. Nowhere in his decision does the Hearing Officer address the Appellant’s statutory right. We find the Hearing Officer’s failure to deal with this central issue to constitute an error of law.

64. We concur with the comments of the Court in Browne v. Ontario

Civilian Commission on Police Services (2001), 207 D.L.R. (4th)

415 (C.A.), that the legislative purpose of the Act is demonstrably to increase public confidence in the provision of police services, including the processing of public complaints.

65. To disregard the Act, would, in fact, severely diminish public confidence and, in this particular case, the Appellant’s confidence, in the processing of police complaints.

66. Discretion may only to be exercised by the Hearing Officer when there is no legislative direction. That is not the case before us. We find the apparent discretion applied by the Hearing Officer in this case to be an error in law. In the case of Re Bareham et al. and London (Board of Education) et al. (1984), 46 O.R. (2d) (C.A) 705 it was held that:

“A public authority in the exercise of its statutory powers may not act on extraneous, irrelevant and collateral considerations.”

67. The application of the rules of natural justice cannot, in our view, save the action taken which clearly does not comply with the legislated requirements.

68. We are not convinced that it would be unfair for Constable Ralph to have to face the appropriate disciplinary process, when he unlawfully conducted CPIC checks for his own personal gain. This indeed is a very serious offence that occurred three times. We find no pertinent reasons why the policy objectives of the governing statute dealing with complaints of police conduct should not be upheld.

69. The Hearing Officer’s decision does not meet the standard of correctness and accordingly cannot stand.

70. Upon review, the reasons appear to confirm that the Hearing Officer’s focus was primarily upon the rights of Constable Ralph without regard to the rights of the Appellant to have the complaint processed in accordance with the Act. He stated:

“The purpose of this Tribunal, unlike the criminal forum, is to adjudicate issues between employer and employee and to punish and correct behaviour unacceptable to the Police Service and the public, with fairness being an essential ingredient. It is fair to discipline employees who breach the code of conduct, but it is not fair to persecute employees.” [Decision page 3, para.15]

71. The principle of double jeopardy is not the appropriate legal standard to be applied here. The application of criminal law concepts in the context of administrative labour relations issues must be considered cautiously.

72. The matters before the Commission, even if they arise in a criminal context, are dealt with under an employment law framework. The principles of employment law and criminal law can be very different.

Charter, which is found under the very clear heading “PROCEEDINGS IN CRIMINAL AND PENAL MATTERS.” (emphasis added).

74. In the text Administrative Law in Canada, Blake S. (Butterworth’s Canada Ltd., Toronto, 1992) at p.16, it is stated when dealing with the Charter, “tribunals rarely must comply with the procedural rules set out in s. 11 of the Charter regarding “Proceedings in Criminal and Penal Matters”.” Wigglesworth, supra, affirms this principle.

75. In Wigglesworth, Justice Wilson, writing for the majority, affirmed that s. 11(h) of the Charter only applies to criminal matters and that charges must be criminal in nature to invoke the double- jeopardy defence. She also held that part of the test in determining whether a matter was criminal was whether there was “the imposition of true penal consequences.” In that case the possibility of a jail sentence existed within the statutory regime, and therefore she ruled that the charge before the tribunal was of a criminal nature.

76. While the Act provides for forfeiture of pay or even dismissal, these penalties are for employment discipline when a wrong is committed. In Wigglesworth, Justice Wilson affirms that some fines can be of a penal nature but they are to be distinguished from fines “fully consonant with the maintenance of discipline”, she states:

“In my opinion, a true penal consequence which would attract the application of s.11(h) is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.”

77. It may very well be that the principles of natural justice as embodied in the Statutory Powers Procedure Act, R.S.O. 1990 c.S.22, may apply to circumstances where the person is facing a second charge arising from the same delict

prior charge.

78. In this case the officer did not have to go through a hearing, was never charged or convicted, the penalty imposed was of an employment law nature not penal, and the main aspect of the penalty was not realized and yet the officer engaged in a very serious form of misconduct repeatedly.

79. Constable Ralph has not had a hearing into his misconduct. It is incorrect therefore to find that should this matter go to a hearing, it would be a re-hearing on matters previously litigated. The only process Constable Ralph has had to deal with to date is a partial application of an informal administrative process.

80. Since the Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the value and importance of adequate reasons for decisions has been made clear. Justification, transparency, and intelligibility are the hallmarks of sufficient reasons.

81. Reasons for the decision help the parties know that there has been a fair assessment of the facts and the law in their case. Procedural fairness requires that there be sufficient reasons so that reviewing bodies are able to review and scrutinize the decision. Neinstein, supra.

82. In part because appellate bodies do not see the witnesses testify and do not hear “live” evidence, the trier of fact must accept that the preparation of thorough and clear reasons for the decision is part and parcel of their mandate. Via Rail Canada Inc. v. Canada (National Transportation Agency), 2000 CanLII 16275 (FCA), 2000 Carswell Nat 2531 (F.C.A.)

83. We find that in this case the Hearing Officer failed to give adequate reasons in the following ways:

• He did not consider nor provide any analysis of the provisions of sections 58 to64 of the Act in arriving at his finding that it would be unfair to Constable Ralph to proceed with the disciplinary hearing;

• He did not include a logical analysis of the issue of the application of the principle of double jeopardy. Not having reviewed and set out in the reasons very important and relevant evidence and submissions on behalf of the Appellant, again he did not explain why he, apparently, rejected those submissions.

Therefore, we find that the Hearing Officer failed to provide sufficient reasons for quashing the charges. This amounts to a breach of procedural fairness.

Conclusion

84. For the reasons set out above, we grant the appeal, and revoke the Hearing Officer’s decision to quash the charges. We order this matter be returned to the Hearing Officer to continue with the hearing.

DATED AT TORONTO THIS 20TH DAY OF DECEMBER,

2011

Roy B. Conacher, Q.C. Zahra Dhanani

Member Member