Mitchell v. Ontario Provincial Police, 2012 CanLII 102111

OCPC#12-17

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Mitchell v. Ontario Provincial Police, 2012 ONCPC 17

BETWEEN:

PROVINCIAL CONSTABLE J.W. (JEFFREY) MITCHELL

-and-

ONTARIO PROVINCIAL POLICE

APPELLANT

RESPONDENT

DECISION

Panel: Hyacinthe Miller, Member John Rodriguez, Member

Hearing Date: September 25, 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

Mr. James Girvin, Counsel for the Appellant

Mr. Norman Feaver, Counsel for the Respondent

Introduction

1. Provincial Constable J. W. (Jeffrey) Mitchell (the “Appellant” or “Const. Mitchell”) of the Ontario Provincial Police (the “OPP” or the “Service”) is appealing a conviction of Discreditable Conduct and the penalty of forfeiture of 24 hours to be worked within three months of the sentencing decision. That decision was issued by Supt. Robin D. McElary-Downer (the “Hearing Officer”) on March 1, 2012.

2. Following an OPP Professional Standards Branch (“PSB”) investigation into a complaint from his former spouse, Const. Mitchell was charged with one count of misconduct under the Police Services Act (the “Act”). The Notice of Hearing, dated December 17, 2010, was served on the Appellant on January 12, 2011. The Particulars of the Allegations were as follows:

You stand charged with Discreditable Conduct in that you did act in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Ontario Provincial Police, contrary to Section 2(1)(a)(xi) of the Code of Conduct contained in the Schedule to Ontario Reg. 268/10, as amended.

You acted inappropriately in relation to Wendy Porter, your former spouse, in that:

• on or about August 18, 2010, you attended her residence while on duty and then sat in an OPP vehicle and watched her residence for about two hours, and made an incorrect entry in your OPP notebook regarding the period of time that you watched her residence;

• on or about August 20, 2010, you attended and entered her residence when she was not at home;

• on or about August 23, 2010, you attended and entered her residence without being invited in, and;

• on or about September 12, 2010, you attended and entered her residence when she was not at home.

3. Const. Mitchell pled not guilty. On February 14, 2012, the Hearing Officer found there was clear and convincing evidence that the Appellant was guilty of discreditable conduct.

4. On October 30, 2012, the Ontario Civilian Police Commission (the “Commission”) received information from the OPP that Const. Mitchell had retired effective September 30, 2012. The Panel had not decided the appeal at that date. As a result, the question of the Panel‟s jurisdiction to continue this appeal had to be addressed.

Decision

5. For the reasons set out below, we find that the Commission lacks jurisdiction to continue this appeal.

Background

6. Const. Jeffrey Mitchell was appointed a provincial constable in September 1982. During his career, he has worked in Professional Standards and in a variety of functions relating to general patrol. At the time of the events giving rise to this proceeding, he was deployed in the Temiskaming Shores Detachment.

7. The Appellant and Const. Wendy Porter (the “Complainant”) had been involved in a twelve-year conjugal relationship. They were married for the last three years of the relationship. The marriage broke down and they separated. They continued living together without incident, for one year until August 13, 2010, at which time they physically moved to different residences.

8. During August and September 2010, Const. Mitchell and the Complainant had ongoing, regular contact on duty and during personal time. Various contacts were initiated by the Complainant. On several occasions, however, some of the contact initiated by the Appellant was unannounced and caused the Complainant concerns.

9. On August 24, 2010, Const. Porter spoke with her supervisor, Sgt. Kevin Murphy, about the interactions with her former husband, indicating that the conversation was for information purposes only. However, in accordance with OPP policy, Sgt. Murphy contacted the PSB to discuss his concerns about possible criminal harassment.

10. The discreditable conduct charge was laid following an investigation of the internal complaint by PSB. The Appellant, the Complainant, their supervisors and other officers, as well as several civilians were interviewed.

The Disciplinary Hearing

11. The Disciplinary hearing was held on December 12, 13 and 14, 2011 in New Liskeard, Ontario. Seven witnesses gave evidence. Twenty one exhibits, including transcripts of PSB interviews, personal and officer notes, duty reports and RMS printouts were filed.

12. The Hearing Officer‟s decision on the allegation of misconduct was filed electronically on February 14, 2012. The penalty decision was released on February 22, 2012.

The Appeal Hearing

13. The appeal hearing was held on September 25, 2012. Written and oral submissions were received from the Appellant and Respondent. The Commission Panel, following established practice, reserved judgment to consider the matter and prepare a written decision.

14. However, on October 30, 2012, Insp. Charles Young informed the Commission that Const. Mitchell had retired effective September 30, 2012. The Panel had not decided the appeal by the time the Appellant retired, nor by the time they received the information from Insp. Young.

15. On October 31, 2012, the Commission Registrar requested submissions from counsel with respect to the Commission‟s jurisdiction to decide the appeal. Mr. Girvin submitted his comments by e-mail dated November 1, 2012. Mr. Feaver‟s brief was received by e-mail on November 13, 2012.

Counsel Submissions

For the Appellant

16. Mr. Girvin argued that the hearing had been completed and the Commission‟s decision on the appeal should be rendered. Const. Mitchell is entitled to have the Commission‟s decision on his appeal, regardless of his employment status with the OPP.

17. Counsel for the Appellant argued that the Panel, being seized of the matter, retained jurisdiction for the purposes of rendering a decision on the disciplinary appeal. By way of analogy, he submitted that it is not unusual for criminal appeal courts to render decisions on findings of guilt notwithstanding that the person who is the subject of the appeal has already served the previously imposed sentence. He also noted that the Hearing Officer‟s decision continues to be a cloud over Const. Mitchell, even though he is now retired, as it impacts his future employment opportunities.

18. Mr. Girvin submitted that there was no procedural avenue available to either party to bring a matter to our attention after oral argument had been completed, nor did he see any basis for Commission staff to contact the Panel. Further, he submitted that notifying the Panel raised the possibility that our reasoning would be tainted by what he contended was essentially new evidence. Absent any proscribed (sic) rules or legislation, the only manner in which an adjudicative body could be approached would be on the basis of consent of all involved parties. On behalf of his client, he did not consent.

19. Mr. Girvin reiterated that, with regard to the appeal, the Appellant is seeking a finding of „not guilty‟.

For the Respondent

20. The Respondent submitted that we should consider the Appellant‟s retirement prior to delivering a written decision.

21. He argued that the fact of the Appellant‟s retirement following the hearing of the appeal and prior to a decision should be available to the Panel.

22. Mr. Feaver disputed the Appellant‟s position that we cannot receive the information that the Appellant retired prior to the date the Panel reached a decision on the appeal, arguing that Const. Mitchell‟s retirement is clearly relevant. He drew our attention to s. 87(5) of the Act which states that: “A hearing held under this section shall be an appeal on the record, but the Commission may receive new or additional evidence as it considers just.” He noted that s. 87(5) does not set out a mechanism for such information to be provided to the Panel, arguing that it would seem cumbersome and against the goal of judicial economy to require a formal motion and supporting materials for the disclosure of a simple fact that is not disputed.

23. Further, in Susan Cole and Sergeant Paul Alarie and the OPP (December 4, 2006, OCCPS), counsel for Sgt. Alarie contacted the Commission on July 24, 2006 to advise that his client would be retiring effective July 31, 2006 and sought direction concerning the status of Ms. Cole‟s appeal. The Commission agreed to hear the motion and determined that they did not have jurisdiction to proceed with the appeal.

24. Cole, supra, does not comment on the contact made by counsel for the Appellant with respect to Sgt. Alarie‟s retirement. Nor is there mention whether counsel was consulted prior to notification or whether notification was made directly to the Commission. Mr. Feaver contended that, from Cole, supra, it appears that all parties believed the retirement was a relevant consideration prior to proceeding with the appeal.

25. He submitted that he would not be discharging his professional duties if he failed to bring a relevant fact (the resignation of the Appellant) to the attention of the Commission. He argued that, to suggest the Commission should render a decision without knowledge of this critical, relevant fact would, in his opinion, be a miscarriage of justice.

26. Mr. Feaver submitted that s. 22(1)(f) of the Act, which sets out the powers and duties of the Commission, for “hearing and disposing of matters referred to it by boards and appealed to it by police officers and complainants in accordance with Part V”, is relevant. The wording of the section seems to suggest that “hearing” an appeal and “disposing” of an appeal are separate and distinct processes.

27. He also referenced s. 90 of the Act, which states the following: If at any time after a complaint about the conduct of a police officer is made under this Part and before the complaint is finally disposed of the police officer resigns, no further action shall be taken under this Part in respect of the complaint after the date of resignation.

28. Read in conjunction with s. 22(1)(f), it appears that s. 90 contemplates the possibility of a matter being heard and a member resigning prior to the complaint being “disposed of”, presumably, through a decision.

29. He submitted that a review of the legislative provisions supports the argument that a resignation stops the process immediately and the Commission may have no jurisdiction to deliver a decision: see Cole, supra, Sergeant (Retired) David Ray and the OPP December 18, 2007, (OCCPS) and Holder and Ontario Provincial Police (2002), 3 O.P.R. 1576 (OCCPS). In those decisions, the Commission found that jurisdiction had been lost, since the officer was no longer an employee or member of a police force.

30. Counsel referred to Ontario (Provincial Police) v. Rutigliano, 2012 ONCA 484, in which the Appellant, a sergeant, was charged with discreditable conduct. He objected to the appointment of the Adjudicator due to a reasonable apprehension of bias and moved for the Adjudicator to recuse himself. On October 15, 2010, the Adjudicator dismissed the motion. On January 5, 2011, the Divisional Court held that there was a reasonable apprehension of bias and ordered the Adjudicator to be removed from the proceedings. On June 17, 2011, the Court of Appeal granted the OPP‟s motion for leave to appeal. On July 1, 2011, Sgt. Rutigliano retired from the OPP.

31. The question before the Court was whether the Panel should hear the appeal in light of that fact it was moot, i.e., the appellant was no longer a police officer. Counsel for the former officer was appointed as amicus curiae. The Court of Appeal, which is not a creature of statute and can hear moot appeals by following the analysis set out in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, ultimately decided that the appeal should be dismissed as moot. The Court panel reasoned at paragraph 15 that, “The discrete discipline complaint against a retired OPP officer does not come within this description.”

32. Mr. Feaver argued that, as Const. Mitchell retired very shortly after the oral argument on the appeal was heard, he knew or ought to have known that his retirement might affect whether or not the Commission rendered a decision. Further, counsel noted that the decisions set out above consider fact scenarios where the appeal had not yet been heard. The Commission (or Court of Appeal) had to decide whether to hear the appeal.

33. In this instance, arguments on the appeal had been heard by the Commission. However, when Const. Mitchell retired from the OPP, the panel had not yet decided the appeal. As there does not appear to be a case with similar facts where retirement has occurred after argument has been heard, counsel submitted that there is an argument to distinguish this matter on that basis.

34. He argued that an examination of the wording of some of the provisions of the Act would seem to suggest that retirement stops everything in its tracks. For example, when considering the penalty of dismissal, it is open to an Adjudicator (and the Commission) to “direct that the police officer be dismissed in seven days unless he or she resigns before that time”. Such a direction affords an officer the choice to resign (and thereby retain such benefits as severance entitlements, etc.) as opposed to being dismissed. Implicit in this choice is the fact that, upon resignation, jurisdiction is lost.

35. He asked that the Commission consider the Appellant‟s retirement prior to delivering its decision.

Conclusion

36. Submissions by counsel were instructive. In reaching our decision, we must fully consider the law and the relevant facts.

37. The cases cited by Counsel for the Respondent turn on the wording of certain sections of Part V of the Act, which provides the complete statutory scheme for the discipline of a “police officer”. The sections confirm that once an individual ceases to be a “police officer”, this statutory discipline scheme has no further application to that person. We agree.

38. At the commencement of this disciplinary appeal, the parties were the OPP and Const. Mitchell. Both were represented by counsel. However, before the appeal process could be completed, Const. Mitchell retired. While he may be desirous of removing the “cloud” that may affect his future employment, he chose not to delay his retirement until after receiving the Commission‟s decision. His retirement from the OPP severed his employment. He is no longer a police officer or a member, as defined by the Act. He is no longer governed by the disciplinary processes or provisions of the legislation.

39. As a creature of statute, the Commission‟s jurisdiction over members of police services is found in the Act. Specifically, s. 85(1) outlines an array of sanctions that may be imposed on a police officer, should misconduct be proved on clear and convincing evidence. These include dismissal, demotion, suspension from duty, forfeiture of days or hours off or a combination of penalties. S. 85(1) must be read in conjunction with s. 87(8), which outlines our powers to, inter alia, confirm, vary, or revoke a hearing officer‟s original decision or substitute our own decision.

40. We are also mindful of a related provision in Part V of the Act, dealing with the resignation of a police officer, which clearly contemplates the delineation between a member and an individual who is no longer a member of a police force. It states:

41. (1) If at any time after a complaint about the conduct of a police officer is made under this Part and before the complaint is finally disposed of the police officer resigns, no further action shall be taken under this Part in respect of the complaint after the date of resignation. 2007, c. 5, s. 10.

42. The Act does not confer on the Commission any power to exercise disciplinary or appellate authority over former members. Clearly, the intention of the Act is that, once an individual ceases to be a police officer, the reach of the disciplinary process ends. This is consistent with previous decisions of the Commission.

43. Although not an appeal, the Commission in the case of Chief Michael Knorz of the Wawa Police Service (July 28, 2011, OCPC) stated that jurisdiction was lost for a disciplinary matter when the police service disbanded. The Chief of Police for the service, who was the subject of the discipline hearing, was no longer the Chief nor was he a police officer.

44. Similarly, the Commission in the case of Donald MacNeil, Member of the Barrie Police Services Board (January 10, 2012, OCPC), determined that it lost jurisdiction to continue a discipline hearing because Mr. MacNeil was no longer a member of the Barrie Police Services Board.

45. The Ontario Court of Appeal ruling in Rutigliano, supra, is instructive. As stated in paragraph 30 above, in that case the Sergeant retired before the OPP‟s appeal could be heard. At paragraph 9, the Court of Appeal said:

In the appeal, the first question is easy to answer. Rutigliano is retired. The PSA proceedings cannot proceed. The substructure of his appeal has disappeared.

45. Once Mr. Mitchell retired and was no longer a police officer, he was no longer subject to the provisions of the Act.

46. The Commission is a creature of statute and can neither imply nor expand its jurisdiction.

47. For the reasons set out above, we find that the Commission lacks jurisdiction to continue this appeal.

DATED AT TORONTO THIS 12th DAY OF DECEMBER, 2012

Hyacinthe Miller John Rodriguez

Member Member