Green v. Lakey and Toronto Police Service, 2012 CanLII 102109

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Green v. Lakey and Toronto Police Service, 2012 ONCPC 8

BETWEEN:

JEFFREY GREEN

APPELLANT

-and-

DETECTIVE WAYNE LAKEY

RESPONDENT

• and –

TORONTO POLICE SERVICE

RESPONDENT

DECISION

Panel: Zahra Dhanani, Member

Hyacinthe Miller, Member

Hearing Date: February 10, 2012

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, ON M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Appearances:

Jeffrey Green, Self-represented Appellant

Ian Solomon, Counsel for the Respondent

Introduction:

1. This is an appeal by a public complainant, Jeffrey Green (“Mr.

Green” or the “Appellant”), from a decision of Superintendent Robin Breen (the “Hearing Officer”) to stay proceedings on a charge of insubordination against Detective Wayne Lakey

(“Detective Lakey”) of the Toronto Police Service (the “TPS”).

Both Detective Lakey and the TPS are Respondents in this appeal. Detective Lakey chose not to file appeal materials or participate in the argument of the appeal.

2. On October, 3, 2008 Detective Lakey was served with notice that a disciplinary hearing was to be held into his conduct. He was alleged to have committed one act 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 Detective Lakey’s alleged unlawful CPIC searches relating to the Appellant on four occasions: November 23, December 4 and December 29, 2004 and January 1, 2005.

4. After several adjournments, a disciplinary hearing into the allegations was held on August 23, 2010. At the commencement of the hearing, a preliminary motion was brought by counsel for Detective Lakey to stay the proceeding. Submissions were made by all parties. On November 17, 2010, the Hearing Officer rendered a decision granting the motion.

5. Mr. Green appealed that decision, asking the Commission to revoke the order for a stay of proceedings and issue an order substituting the Commission’s own decision or, alternatively, an order for a new hearing.

6. The events giving rise to the disciplinary charges took place prior to the amendments to the Act on October 19th, 2009. Accordingly, all references to the Act are to the version in effect prior to October 19, 2009.

Decision:

7. For the reasons outlined below, we dismiss the appeal.

Background:

8. The matter before us originated as a complaint lodged in 2005 by Mr. Green.

9. At the time, the Appellant and Detective Lakey resided in the same condominium building in Toronto. Both had been involved with the Board of Directors of the Condominium Corporation. Although they were initially on cordial terms, a disagreement arose as a result of their interactions through the Condominium Corporation Board.

10. Mr. Green contacted the TPS Professional Standards Branch on February 1, 2005, to have his concerns about Detective Lakey’s conduct investigated. He spoke with Detective Sergeant Butula in the Professional Standards Branch. The Appellant was advised to submit his concerns in writing. After speaking with Mr. Green, Detective Sergeant Butula conducted an offline search to determine whether there was any merit to the Appellant’s allegations. The search revealed that Detective Lakey had conducted several database searches on Mr. Green.

11. On February 7, 2005, TPS investigators notified Detective

Lakey in writing, using form TPS 649, that he was the subject

of an internal investigation under the Act on account of his off- line searches.

12. On February 9, 2005, Mr. Green sent an e-mail to Detective

Sergeant Butula. His e-mail stated:

I am writing to you because I have concerns for both my privacy and my safety. I suspect that Officer Wayne Lakey, of Toronto Police Services (TPS) may have without authorization via proper procedure accessed my personal information archived in TPS files. I also believe that Officer Wayne Lakey may have distributed this information, in part or whole, to individuals who are not authorized to have any knowledge of such private information.

13. The e-mail also provided a chronology of events from October,

2003 to February 7, 2005. The e-mail ended with “Sincerely”, several blank lines and a typed “Jeff Green”, followed by his address/contact information.

14. On February 9, 2005, Detective Sergeants Butula and Roseto of the Professional Standards Branch interviewed Detective Lakey. They also interviewed other residents of the condo building where both Mr. Green and Detective Lakey lived.

15. The investigators found no wrong-doing on the part of Detective Lakey and closed the investigation. In an internal memo dated February 15, 2005, they stated:

…PC LAKEY did attend PRS for an interview. PC LAKEY produced detailed notes of his involvement in this matter. PC LAKEY reported that several tenants of the building in which he resides, have complained to PC LAKEY about the complainants criminal behaviour towards tenants. PC LAKEY stated that he consistently told residents to report

the criminal behaviour to the police. PC LAKEY contacted a detective at 22 CIB asking if 22 CIB had received a report alleging the complainant committed any criminal act...

PC LAKEY admitted he did conduct a check through Unified Search only to see if residents in his building had submitted a report... PC LAKEY maintains he did not reveal any information that he learned from the Unified Search, to any non-police person.

A Unified Search automatically searches E-COPS, CIPS, COPS, MANIX, RICI, CNI and CPIC. PC LAKEY did not specifically conduct a CPIC search; rather he inadvertently did not remove the check mark from the CPIC box on the Unified Search page. Removing the check mark from the CPIC box would prevent a CPIC search from being conducted.

The investigators interviewed other tenants in the building who confirmed PC LAKEY’s statement that he was constantly advising the other tenants to call police, in response to the complainant’s criminal behaviour...

PC LAKEY was advised not to conduct any further checks on any police system unless it is in performance of his duties. PC LAKEY was also advised to direct residents to call on duty police directly if they have any further complaints about the complainant’s criminal behaviour. PC LAKEY was very apologetic and agreed to these conditions.

16. Mr. Green was advised that Detective Lakey was not suspected of any wrong doing. However, he was not given a copy of the investigators’ reports. Mr. Green made several requests for a written response to his e-mail. He engaged counsel, Alan Young. Starting on May 18, 2006, Mr. Young sent several

letters to the TPS on Mr. Green's behalf. On March 26, 2007, Mr. Green received a written response from the Professional Standards Investigative Unit, which stated:

An internal investigation was conducted...You were subsequently advised by Detective Sergeant Butula that Sergeant Lakey is not suspected of any wrong doing and no further action will be taken in this matter.

On May 25, 2006, Superintendent C. White responded to you that the matter is concluded and no further action will be taken on this matter...this internal investigation does not entitle you to a copy of the report of investigation. The matter is closed.

17. On May 16, 2007 Detective Sergeant Queen wrote to Mr.

Green informing him that if he was not satisfied with the outcome of the TPS investigation he could escalate this matter to the Ontario Civilian Commission on Police Services, now called the Ontario Civilian Police Commission (the “Commission”).

18. At the Commission’s direction, the TPS provided the Appellant with a copy of the Report of Investigation dated January 16,

19. The report concluded that there was evidence of misconduct relating to Detective Lakey’s database searches, but there was no evidence supporting the allegations that the

results had been communicated to anyone outside the TPS.

19. In response to a letter from the Appellant dated April 3, 2008, the TPS informed him that “it is the policy of the Toronto Police Service, when imposing a penalty or other action by disposition without a hearing for a public complaint, that the complainant be notified of the outcome but not the specific penalty/action imposed”.

20. On April 30, 2008, Mr. Green wrote to the Commission appealing TPS’ decision that Detective Lakey’s misconduct was of a less serious nature. The Appellant stated that he suspected the officer “may have accessed my personal information”. The first incidents cited by the Appellant dated back to October 2003. The Commission directed that a hearing be held into the allegations.

21. The Notice of Hearing was served on the officer on September

29, 2008. The Statement of Particulars read as follows:

Being a member of the Toronto Police Service, attached to Traffic Services, on Tuesday, November

23, 2004, Saturday, December 4, 2004, Wednesday, December 29, 2004 and Friday, January 21, 2005, you were on duty.

On these dates, you conducted a Unified Search on J.G. This search included: e-Cops, CIPS, COPS, MANIX, RICI, CNI and CPIC.

Investigation revealed that these queries were not for official police business and were therefore contrary to Rule 4.13.1, of the Toronto Police Service.

In so doing, you committed misconduct in that you did without lawful excuse, disobey omit or neglect to carry out a lawful order.

22. The matter was first heard on November 13, 2008, before Superintendent Jane Wilcox (“Hearing Officer Wilcox”). There were several adjournments and resulting delays. Detective Lakey reserved stating a plea and waived reading of the charges. As disclosure had not been provided to the officer and the public complainant was not present, the matter was put over to a later date. On January 13, 2009, disclosure remained outstanding. On February 10, 2009, disclosure had been

completed, but Harry Black, Counsel for Detective Lakey, requested further time to review the materials.

23. On March 12, 2009, Mr. Black brought a motion that the Notice of Hearing was a nullity, in that Mr. Green had not been directly affected, and the Hearing Officer had no jurisdiction to hear the matter. The appropriate remedy would be for a stay of proceedings to be granted.

24. Mr. Black also submitted that there were no particulars or evidence to substantiate the complaint, which he argued was speculative because it stated that, “I suspect that Officer Wayne Lakey of Toronto Police Services may have without authorization via proper procedure accessed my personal information archived in TPS files.”

25. He argued that the original two-page complaint was submitted to the Service via e-mail dated February 9, 2005. The e-mail also set out a number of allegations and a sequence of events relating to the Appellant’s interactions with the Board of Directors and Detective Lakey. Further, Mr. Black argued that Mr. Green was not directly affected by the alleged conduct of Detective Lakey and could not be considered a public complainant under the Act. Defence arguments were concluded on June 16, 2009.

26. Counsel for Mr. Green, Alan Young, argued that the e-mail of February 2005 gave sufficient notice regarding the scope of his belief in Detective Lakey’s misconduct. Any improper access to personal information would directly affect Mr. Green. He argued that any statutory ambiguities should be resolved in favour of a public complainant. Christian v. Grbich (October 18,

2001, OCCPS). Mr. Young stated that the TPS Prosecutor submitted that Mr. Green’s letter was clear about the misconduct he suspected the officer to have engaged in and

which TPS policy may have been violated.

27. On July 29, 2009, Hearing Officer Wilcox, deciding on this motion, accepted the positions of the prosecution and Mr. Green, stating:

I find that on February nine two thousand and five Mr. Green made a complaint as per part five of the Police Services Act, and should the alleged misconduct be proven on clear and convincing evidence Mr. Green would be directly affected. Therefore Mr. Green is eligible to be classified as claimant in this matter. Further I note that this matter, has been reviewed on two occasions by OCCPS which is the appellant body for this tribunal, OCOPS (sic) found, quote, an air of reality, unquote, to Mr. Green's complaint, has clearly recognized Mr. Green's role as a public complainant in these proceedings and has directed that a hearing be conducted as per the authority of section seventy two eight of the Police Services Act. (page 6, Transcript of proceedings, 29 July 2009)

28. She denied the defence motion for a stay and directed that the matter should proceed to a hearing.

29. The matter was subsequently adjourned due to: changes in counsel for Detective Lakey (December 2, 2009), issues raised by Mr. Green relating to procedures for disclosure and summoning witnesses to appear, scheduling conflicts (January

14, 2010) and for preparation of a new motion, factum and supporting documentation (January 20, 2010) and submission

of a new motion to have the charges stayed (June 16, 2010).

30. On August 23, 2010, the matter continued before a new Hearing Officer, Superintendent Robin Breen (the “Hearing Officer”). Detective Lakey was represented by counsel, Joseph Markson. Mr. Green was self-represented.

31. Mr. Markson brought a motion claiming that the Hearing Officer was without jurisdiction to hear the matter, the Notice of Hearing was a nullity and that the appropriate remedy would be for the Hearing Officer to order a stay of proceedings. He argued that, due to the following defects, the matter should be stayed to prevent further abuse of process:

Mr. Green was not a lawful complainant pursuant to S.57(2) of the Act, as he did not comply with the requirements for lodging a public complaint, Detective Lakey had already been disciplined following the Service’s internal investigation into his use of search tools, therefore a second administrative proceeding would be contrary to natural justice.

32. Mr. Green submitted that the Act should be ‘public friendly’ and it was not the intent of the legislation to place the onus on members of the public to conform precisely to the provisions of Part V. He had done all that could be reasonably expected to have his complaint addressed. He believed Detective Lakey had gone out of his way to get involved and had committed misconduct on several occasions. Further, he could not understand or accept the findings of the Professional Standards Branch.

33. The Hearing Officer reviewed and considered the submissions and exhibits and the history of the case and found that ‘many aspects of the matter were not managed in compliance with the letter or spirit of the…Act’. (Transcript of November 17,

2010 proceedings, page 15) and noted on page 18 that ‘a series of procedural missteps have not only prolonged and

complicated this process but may well have compromised’ the

public complainant’s interest.’ The Hearing Officer found that there was no signature by Mr. Green, as required under s.57(2) of the Act. R v. Robson, Ontario Court of Justice, March

3, 2005, Grbich, supra, Needham and Toronto Police Service, (August 5, 2010, OCCPS).

34. He refrained from assessing whether the discipline meted out to Detective Lakey was appropriate but acknowledged that being counselled or reprimanded by a supervisor is a valid form of discipline.

35. He weighed the applicable tests and found that, given the facts before him and the authority of the Statutory Powers Procedures Act, R.S.O., 1990, c. S.22, as amended (“SPPA”), it was reasonable to grant the defence motion and stay the proceeding. Constable Groat and Quinte West Police Service, (November 26, 2001, OCCPS).

36. On December 14, 2010, the Appellant filed a Notice of Appeal with the Commission. The ground for the appeal was that:

37. Hearing Officer, Superintendent Breen, erred in law when he considered Detective Lakey’s previous records of informal discipline in his decision.

Pursuant to s. 64(16) of the PSA, the Hearing Officer had committed an error of law in considering the prior informal disciplinary events on Detective Lakey’s record because they were deemed to be expunged from the Detective’s employment record, having occurred more than two years before the date the Hearing Officer ordered a stay of proceedings.

Disciplinary Appeal

Appellant’s Submissions:

37. It is the Appellant’s position that there were numerous errors made by the Hearing Officer. Monaghan and Toronto Police Service, SCJ 340/03, March 31, 2005.

38. Mr. Green submitted that the Hearing Officer erred by considering entries of misconduct that had already been expunged from Detective Lakey’s record of employment, in accordance with s.66(12) of the Act.

39. He noted that the Hearing Officer’s decision of November 17,

2010 was delivered five years and nine months after the February 9th and 11th, 2005 record of discipline and three years and nine months after the entries were removed. Constable Hampel and Toronto Police Service, (August 14, 2008, OCCPS). The Appellant noted that on page 16 of his decision, the Hearing Officer made reference to the prior discipline by members of Professional Standards Branch.

40. Mr. Green argued several other issues that were not included in his Notice of Appeal filed on December 14, 2010.

41. The Appellant submitted that a further error was committed with respect to the printed copies of the Hearing Officer’s decisions. On November 17, 2010, he was faxed the 21 page decision of the Hearing Officer. The Appellant received a letter from the TPS dated November 22, 2010, which stated in part:

‘Please ensure that any copies of the hearing decision on motion that were previously provided to you are destroyed, as there were corrections made to the document…” When he inquired about the two documents, he was advised by a representative of TPS that the original showed the case number as 1020.40 while the replacement referenced case number 2008.42.

42. Mr. Green argued on page 7 of his factum that “it was improper for Hearing Officer Breen to revisit and alter a record or decision already made, and he did so without clear disclosure to the appellant. Further, there was failure to give the Appellant the opportunity to consider the propriety and arguments on the alterations…” He contended that the authority of the Hearing Officer was extinguished once he had made his decision and that he was functus officio when

alternations were made to the decision afterwards. Despite being asked to do so several times by the Panel, the Appellant stated that he could not detect any change between the two versions of the decision other than the case number change, but he argued that any change amounted to a breach.

43. The Appellant submitted that the Hearing Officer erred by considering his complaint not valid, contrary to res judicata and issue estoppel. He argued that this issue had already been argued before Superintendent Wilcox. With respect to estoppel, he argued that the same parties were involved and the matter determined.

44. He further argued that, as a layperson, he should have been able to rely on the TPS Prosecutor to bring forward proper argument on matters such as estoppel and the validity of the original e-mail as a complaint.

45. Hearing Officer Wilcox had previously ruled that, flowing from a Commission direction to hold a hearing, the Appellant’s complaint of February 6, 2005 was valid under the Act, that Mr. Green was directly affected and eligible to be classified as a complainant. Further, there is no legislation that requires the formalization of a public complaint that moves from an internal matter to a second proceeding. Penner v. Niagara (Police Services Board), 2010 ONCA 616. The matter should not have been open to further argument at a later date.

46. The Appellant submitted that the SPPA, as applied in the higher courts, allows for notices of appeal to be amended, within the appropriate amount of time, to include other grounds. Mr. Green asserted that, as a public complainant, he had persevered for five years only because he felt his serious concern about police misconduct should be addressed.

47. He asked us to overturn the Hearing Officer’s decision and direct that a new hearing be held or, in the alternative, to substitute our own decision.

Respondent’s Submissions:

48. On behalf of the TPS, Mr. Solomon identified several key points in his argument:

• There is no jurisdiction for the Commission to deal with the

Appellant’s purported second and third grounds of appeal,

• The additional grounds in the Appellant’s second notice of appeal were not filed in compliance with the statutory/mandatory requirements,

• No decision was made on issue estoppel,

• The matter adjudicated by Hearing Officer Wilcox did not relate to the s.57(2) argument heard by Hearing Officer Breen.

• The Hearing Officer’s decision had not been either “revised” or

“altered”.

49. Mr. Solomon argued that there is no basis for the Commission to disturb the Hearing Officer’s decision. There was a clear evidentiary foundation for him to find that Mr. Green was not a valid public complainant pursuant to s.57(2) and confirm that prior discipline had been imposed with respect to Respondent Lakey.

50. He submitted that Mr. Green’s argument about the expungement of discipline from Detective Lakey’s record had not been made before the Hearing Officer. Further, the issue was not the prior disciplinary record, but whether discipline had been imposed. All of the evidence, which was not challenged or contradicted by the Appellant, was that discipline had been imposed on two occasions. Consequently, the Hearing Officer did not err by concluding that Detective Lakey had already been penalized. The Hearing Officer was correct in finding that further discipline for the same misconduct would subject the

officer to double jeopardy. Whether the record of discipline remained on his file was irrelevant.

51. Counsel identified the distinguishing characteristics between this case and Hampel, supra, which was a matter under s.

64(16) of the Act and dealt with penalty and the question of limitation periods for removal of records from an employment

file.

52. He objected to the Commission having jurisdiction to decide the purported additional grounds of appeal contained in Mr. Green’s ‘amended’ or second factum. Orr and York Regional Police, (June 6, 2001, OCCPS). Mr. Solomon submitted that the TPS had not even received the “amended” Notice of Appeal.

53. He also contended that there was no jurisdiction to consider the very serious allegation that the Hearing Officer had somehow improperly amended or altered his decision after the fact. Needham and Toronto Police Service, (August 5, 2010, OCPC) Jander and Toronto Police Service, (November 3, 2009, OCPC) Gough and Peel Regional Police Service, (June 3, 2003, OCCPS).

54. On the issue estoppel question, he argued that the proper forum for a timely objection to the defence motion for a stay of proceedings was before the Hearing Officer. The issue was not raised by the Appellant and cannot now be introduced before the Commission. And, as no decision was made by the Hearing Officer on whether he was estopped from considering the new argument that defence counsel brought forward, there is nothing about which argument could be made.

55. Mr. Solomon argued that Section 70 of the Act is clear: the Commission has no jurisdiction to permit an extension of time for delivery of Notices of Appeal. Further, it would be outside our jurisdiction for us to afford a party ‘a perpetual opportunity to keep adding grounds that he or she may think about as time

progresses.’ He referenced the Act which states: “And written notice stating the grounds on which the appeal is based.”

56. He submitted that it was reasonable for the Hearing Officer to find that no signature was present: the e-mail in evidence had the Appellant’s name typed on the bottom, with his address and telephone number. The Appellant had full opportunity to give evidence before the Hearing Officer why, in his view, what he submitted to the Service constituted a signature. He did not do so. R v. Robson, supra.

57. Mr. Solomon asked us to find that there would be an abuse of process to proceed with another hearing, in light of evidence that discipline had already been imposed on the same set of facts and with clear evidence that there was no signature, as required by statute.

58. Further, he asked us to dismiss the appeal and uphold the

Hearing Officer’s decision.

Reasons for Decision:

59. The role of the Commission on an appeal is to review the Hearing Officer’s decision and determine whether that decision was reasonable or whether errors were committed that would require the Commission to intervene.

60. The standard of review for the Commission with respect to the Hearing Officer’s factual findings is reasonableness. Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 at para 47 (S.C.C.).

61. 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.).

62. 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 v. Hamilton Police Service, (May 10,

2002, OCCPS) and Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div.Ct.), also Constable William Barlow

and Ottawa Police Service, (August 15, 2011, OCPC).

63. This has been affirmed in the recent Supreme Court of Canada decision Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para. 18, noting with approval the comments of Evans, J.A. in Canada Post Corp. v. Public Service alliance of Canada (FCA):

…Dunsmuir seeks to “avoid an unduly formalistic approach to judicial review”…”perfection is not the standard”…reviewing courts should ask whether, “when read in light of the evidence before it and the nature of its statutory task, the tribunal’s reasons adequately explain the bases of its decision”… (para.

64. An appeal to the Commission is an appeal on the record.

Deference must be accorded to a hearing officer’s findings, unless an examination of the record shows that the conclusions reached cannot reasonably be supported by the evidence. Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell Ont 1583 (Div. Ct.).

65. The issues before us in this appeal are as follows:

• Did the Hearing Officer err in law by considering prior informal discipline expunged from Respondent Lakey’s employment record,

• Does the Commission have jurisdiction to hear the new grounds of appeal raised by the Appellant in his ‘amended’

factum, namely; issue estoppel, and res judica, and allegations that the decision was altered after it had been released.

66. In his 19 page decision on the preliminary motion dated November 17, 2010, the Hearing Officer reviewed the extended history of the matter, the law, the defence motion, submissions received from counsel, from Mr. Green and the Service prosecutor. He reviewed and weighed the documentary evidence and the testimony of each witness at some length and presented an accurate, balanced chronology of the significant evidence.

67. We find that the Hearing Officer was clearly aware of and applied the required standard of proof, made appropriate and reasonable findings based upon the evidence and provided a logical analysis that was sufficient to support his conclusions. Dunsmuir, supra. The reasons are supported by tenable explanations and satisfy the reasonableness standard. His analysis of the evidence shows a clear understanding of the law and the issues before him, including the importance of the public complaints process and community concerns about holding police officers accountable for their conduct.

68. The Hearing Officer committed no reversible errors. He was bound to apply an absolute statutory requirement as outlined in s.57(2).

69. The Act states, in S.57(2), that:

A complaint made by a member of the public must be in writing, signed by the complainant and delivered to any station or detachment of the police force to which the complaint relates or to

the Commission, personally by the complainant or his or her agent by mail or by telephone

transmission of a facsimile. (emphasis added)

70. The Hearing Officer examined Mr. Green’s e-mail of February 9,

2005 and found that it did not comply with the mandatory requirements of the Act because it had not been signed. Grbich, supra. He properly interpreted the legislation and applied the principles articulated in Groat and in Needham, supra.

Employment Record:

71. The Appellant was correct that s. 64(16) of the Act requires an employer to remove from personnel files certain entries pertaining to discipline imposed. He relied on the principles outlined in Hampel, supra. However, the facts in this appeal are not the same.

72. As Mr. Solomon noted, in Hampel, supra, the Service had failed to expunge the disputed records. The hearing officer improperly considered them in assessing penalty.

73. In this case, evidence relating to the informal discipline for Detective Lakey was introduced in oral testimony and thus, was part of the record which the Hearing Officer was entitled to take into account.

74. Detective Lakey gave uncontradicted evidence that he had been counselled and reprimanded following the investigation of an internal Service complaint. Further, we note that the Appellant did not challenge this testimony in cross- examination.

75. However, whether or not the records exist is irrelevant to the larger issue. The Hearing Officer considered information from the prosecution outlining the events subsequent to Mr. Green’s telephone call to Professional Standards on February 1, 2005. We find that the Hearing Officer appropriately assessed this evidence.

Jurisdiction:

76. In the Appellant’s factum received by the Commission on October 31, 2011, Mr. Green referenced three grounds to his appeal: Detective Lakey’s prior discipline, the validity of his complaint and alterations made by the Hearing Officer to the already completed decision. The relief sought was an order to revoke the Hearing Officer’s decision of November 17, 2010, an order from the Commission with a substitute decision or an order for a new hearing.

77. However, in a document received by the Commission on December 14, 2011, the Appellant submitted a revised notice of appeal in which he added, “such further and other relief as the appellant may advise”. Clearly, the timing of the second document and the attempted addition of another ground for appeal, were not in accordance with the Act, as they were filed beyond the 30-day time limitation. We have no legislative authority to vary the time limit or process for giving notice of a valid appeal.

78. The panel would point out that in a recent decision of the Commission in the case of Elizabeth Galazka and Ottawa Police Service and Constable Ralph (December 20, 2011, OCPC), the Commission noted that the principle of double jeopardy comes from the criminal law context. With respect, Mr. Solomon’s argument that Detective Lakey would be unfairly penalized and subject to double jeopardy if another hearing was ordered, does not apply R. v. Wigglesworth 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541.

79. As we permitted the Appellant to argue issue estoppel and res judicata, we have provided reasons for our conclusions on his arguments.

Issue Estoppel:

80. The Hearing Officer did not receive any evidence or argument on issue estoppel relating to Detective Lakey’s preliminary

motion for a stay in proceedings. He did not consider or make any decision relating to any objections to the defence motion for a stay in proceedings, because the Appellant made none.

81. As there was no decision on issue estoppel made by the Hearing Officer, issue estoppel cannot now be raised as a valid ground for appeal. Holder and Ontario Provincial Police, (December 4, 2011, OCPC).

Res Judicata:

82. The Appellant’s argument was that the motion before Superintendent Breen was the same argument that had been decided by Hearing Officer Wilcox.

83. In 2009, counsel for Detective Lakey argued before Hearing Office Wilcox that proceedings should be stayed. He submitted that Mr. Green was not directly affected by Detective Lakey’s misconduct. The Hearing Officer ruled that Mr. Green was directly affected.

84. In 2010, before Superintendent Breen, counsel for the officer argued that the tribunal had no jurisdiction, as the e-mail alleging misconduct had not been signed and did not meet the mandatory requirements contained in s. 57(2) of the Act.

85. These decisions are clearly on two separate issues and two different motions. There was no re-hearing of the same matters. Therefore, res judicata does not apply.

Allegations of Alterations made to the Decision:

86. The Appellant’s allegations that alterations had been made to the decision by Hearing Officer after the original date of issue were particularly troubling.

87. Despite repeated requests from the panel that he substantiate this allegation, Mr. Green was unable to provide any evidence

of change beyond a minor administrative re-numbering of the document.

Conclusion:

88. We note Mr. Green’s frequent references to his status as a layperson. However, we are aware that he was represented by experienced legal counsel on the first motion before Hearing Officer Wilcox. While he was not represented by counsel during argument of this appeal, he acknowledged that he had access to and sought legal advice during the time he was engaged in the disciplinary process.

89. Mr. Green filed written submissions and participated in oral argument. He was heard and his submissions were considered. During argument of the appeal, he was given considerable latitude and ample opportunity to frame his arguments in the appropriate context. We do not find any of the Appellant’s arguments to be compelling, convincing or based on clear or cogent evidence. He also raised matters that were not part of the Hearing Officer’s decision or the record on which we must rely.

90. The issue before the Hearing Officer was whether the e-mail communication received from Mr. Green on February 9, 2005 constituted a valid complaint under s. 57(2) of the Act. Based on a careful review of the evidence, he determined that it was unsigned and did not meet the mandatory provisions of the Act. The Hearing Officer properly concluded that he had the authority under s.23(1) of the SPPA, to grant the defence motion for a stay in proceedings.

91. For the reasons set out above, we find that the Hearing Officer did not err in law. His decision is reasonable and correct.

92. Accordingly, we dismiss the appeal.

DATED AT TORONTO THIS 5th DAY OF JUNE, 2012

Zahra Dhanani Hyacinthe Miller

Member Member