Cardi v. Peel Regional Police Service, 2013 CanLII 101384

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Cardi v. Peel Regional Police Service, 2013 ONCPC 10

BETWEEN:

CONSTABLE JOSEPH CARDI

APPELLANT

-and-

PEEL REGIONAL POLICE SERVICE

RESPONDENT

DECISION

Panel: David C. Gavsie, Associate Chair

Georges Bedard, Member

Hearing Date: June 18, 2013

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

Appearances

David Butt, Counsel for the Appellant

Joel Dubois, Counsel for the Respondent

Introduction

1. In his decision dated July 4, 2012, Supt. Mike MacMullen (the “Hearing Officer”) found Const. Cardi (“Const. Cardi” or the “Appellant”) guilty of Discreditable Conduct pursuant to s.

2(1)(a)(xi) of the Code of Conduct contained in the Schedule to

Ontario Regulation 268/10, as amended (the “Code of Conduct”), enacted under the Police Services Act, R.S.O. 1990, c. P.15, as amended (the “Act”).

2. On September 28, 2012 the Hearing Officer imposed a penalty on Const. Cardi of forfeiture of five days of eight hours each, to be served (worked) at the discretion of his Divisional Commander.

3. On October 26, 2012, the Appellant filed a Notice of Appeal with the Ontario Civilian Police Commission (the “Commission”). Const. Cardi is appealing the finding of misconduct and the penalty imposed by the Hearing Officer and asks that he be found not guilty of discreditable conduct.

Background

4. On December 16, 2009, January 16, 2010 and June 13, 2010, Const. Cardi undertook various criminal records checks including CPIC on a Mr. Sean Lowry.

5. Only July 9, 2010, Mr. Lowry sent an e-mail to a Sergeant of the Peel Regional Police Service (the “Service”) stating that Const. Cardi was harassing him once again.

6. Mr. Lowry had dealt with the Sergeant three years before regarding similar complaints against Const. Cardi. The Service’s Professional Standards Branch (“PSB”) investigated the prior complaints of Mr. Lowry, but no charges were laid against Const. Cardi.

7. During the period 2005 through 2010 Mr. Lowry was involved

in a domestic relationship with a Ms. Karrie Ann Currell. Const. Cardi and Ms. Currell were friends, having worked at the same mall.

8. During the PSB’s investigation in 2010 Const. Cardi made a number of admissions. He admitted the alleged CPIC use and confirmed that he had never sought direction or advice from a supervisor concerning the CPIC use. Nor did he advise other law enforcement agencies of his suspicions concerning Mr. Lowry.

9. In addition, Const. Cardi agreed that access to CPIC is restricted to official police business and that special training and a special password are required to access the system. Const. Cardi also agreed that information in the system is for use by law enforcement agencies only, and that this is important as it protects officer safety and individual privacy

rights. Further, he agreed that officers cannot access the CPIC system for personal reasons, and that unauthorized access is subject to discipline.

10. Const. Cardi also advised that he did not complete any occurrence reports related to his concerns about Mr. Lowry, previously in 2005-2007, or in 2009-2010.

11. Const. Cardi admitted the CPIC use but submitted that the checks he conducted on Mr. Lowry in 2009 and 2010 were undertaken based on his belief that Mr. Lowry was involved in criminal activity, and that he was emotionally and verbally abusing Ms. Currell. Const. Cardi denied passing on any CPIC

12. At the opening of the disciplinary hearing before the Hearing Officer Const. Cardi brought a motion seeking disclosure of the 2007 investigation file of the Service (the “2007

Investigation Materials”), pertaining to alleged similar incidents involving Const. Cardi, Mr. Lowry and Ms. Currell.

13. The previous incidents happened between 2005 and 2007 when Ms. Currell informed Const. Cardi that Mr. Lowry mistreated her. Const. Cardi admitted that during this period he ran eight to ten CPIC queries on Mr. Lowry. Const. Cardi was investigated by the Service for this conduct. In May 2008 he was advised that he would not be charged for his alleged unauthorized CPIC use during 2005 to 2007.

14. By decision dated July 4, 2011, the Hearing Officer dismissed Const. Cardi’s motion on the basis that Const. Cardi had failed to demonstrate that the 2007 Investigation Materials were relevant to the current allegation of misconduct, and that the Service had met the test of procedural fairness by providing Const. Cardi with disclosure materials based on the 2009-2010 case against him that permitted him to understand the case and to prepare a response.

15. The disciplinary hearing proceeded on November 25, 2011 and December 15, 2011. On July 4, 2012, the Hearing Officer released his Decision. The Hearing Officer found that Const. Cardi had a personal interest in the welfare of a friend which placed him in a conflict of interest, and that the CPIC searches were not conducted exclusively for official police business. As

a result the Hearing Officer found Const. Cardi guilty of

Discreditable Conduct.

Summary of Decision

16. For the reasons set out below, the appeal is dismissed.

Appellant’s Submissions

17. On behalf of the Appellant Mr. Butt argued that the failure to order disclosure of the 2007 Investigation Materials, which pointed to innocence at that time, significantly handicapped the defence, thereby tainting the proceedings beyond redemption. The Hearing Officer found that Const. Cardi had ample grounds for his concerns about the criminality of Mr. Lowry. That being the case, despite any shortcomings in what Const. Cardi did or did not do, it cannot be said that running Mr. Lowry’s name on CPIC would be viewed as Discreditable Conduct in the eyes of a reasonable member of the community. Accordingly, the appropriate remedy in this case is to set aside the finding of guilt, and substitute a finding of not guilty.

18. Mr. Butt continued that full disclosure was not provided which made the disciplinary hearing unfair. Disclosure is paramount to his case. If disclosure is permitted he succeeds; if not, he fails.

19. The heart of the issue, according to Mr. Butt, is that Const.

Cardi ran 8-10 CPIC queries on Mr. Lowry in 2005-07, was investigated and cleared. He ran 3 more such queries on the

same person, in very similar circumstances in 2009-10 and

was convicted of Discreditable Conduct. Why was precisely the same conduct appropriate in 2005-07, yet discreditable in

2009-10? By not allowing the 2007 Investigation Materials to be examined, the prosecution and Hearing Officer both refused

the defence access to the only material that could shine a light

on that question.

20. Mr. Butt submitted that the appearance created by such non- disclosure is that of attempting to cover up an investigation that cleared Const. Cardi for the very same conduct he was later charged with. The appearance created is that of withholding exculpatory material. Prosecutors should never be

able to bury investigative material that shows a person charged is, in the opinion of the very same investigative agency, innocent of the very same type of wrongdoing they are currently facing.

21. The basic principles of disclosure have been settled in law for over twenty years: see R. v. Stinchcombe, [1995] 1 S.C.R.

22. The Supreme Court has repeatedly re-affirmed the basic principles, which include the following:

• The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established: see R. v. McNeil 2009 SCC 3, para.

17;

• The duty to disclose extends to “not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defense”: see McNeil,

supra, para.17;

• The prosecution must err on the side of inclusion: see Stinchcombe, supra;

• Implicit in the Crown’s broad duty to disclose the contents of its file... [is the assumption] that the material in possession of the prosecuting Crown is relevant to the accused’s case. Otherwise, the Crown would not have obtained possession of it: see McNeil, supra, para.20; and

• On a review the Crown must justify its refusal to disclose. In as much as disclosure of all relevant information is in the general rule, the Crown

must bring itself within an exception to that rule:

see Stinchcombe, supra.

22. Mr. Butt argued that these principles apply with unmitigated vigour in the discipline tribunal setting because they embody fundamental procedural fairness. For example as stated by the Court in Milner v. Registered Nurses Assn. (1999) 20 Admin

L.R. (3d) 71(B.C.S.C.) at paras. 8, 11 and 13: “The Courts

have clearly moved toward requiring administrative disciplinary tribunals to approach, if not meet, the Stinchcombe standard”.

23. Mr. Butt submitted that the Commission should move closer to what other tribunals have said about requiring disclosure which meets the Stinchcombe standard.

24. He added that cases are a snapshot in time. What is required is an evolutionary view.

25. Mr. Butt referred to the Respondent’s factum at paragraph 58, where reference is made to the Commission’s decision in Cate and Peel Regional Police Service (July 17, 1998, OCCPS). He submitted that this decision supports the Appellant’s approach. At page 13, the Commission stated:

We are of the opinion that the threshold is not as high for what is essentially a labor relations matter as it is for criminal cases in which individual liberty is at stake. We are, however, mindful of the necessity that an employer, acting both as prosecutor and judge, should exercise utmost caution to see a fair hearing for the employee and we consider the test in this instance to be whether Constable Cate was prejudiced by the absence of this evidence.

Mr. Butt argued that there must be utmost caution to ensure a fair hearing, which can be prejudiced by the absence of evidence. In in a police discipline hearing the employer is acting both as prosecutor and judge.

26. Mr. Butt referred to another case in the Respondent’s factum at paragraph 54; namely Morris and Ontario Provincial Police (January 11, 1993, OCCPS), where the Commission stated the following at page 2:

In the context of a police discipline matter, a police officer must be given an opportunity to know the case to be met, to have an opportunity to test the evidence against him or her, and to provide evidence on his or her own behalf.

27. Mr. Butt then listed more reasons why the 2007 Investigation Materials should have been disclosed, starting with the fact that the prosecution referenced the 2007 investigation dozens of times in their own materials, as did all the key witnesses in

the case. He submitted that as counsel for Const. Cardi he was obliged to conduct the defense without discharging the basic

obligation of becoming thoroughly conversant with everything

the investigators referred to. The events of 2009 -2010 are driven by the events of 2005-2007.

28. Mr. Butt noted that every major witness referenced the 2007 investigation in their investigative interview.

29. Mr. Butt asked, given the close connection between the events of 2005-2007 and 2009-2010, why is carrying out the 2009-

2010 CPIC checks any different than the 2007-2010 checks?

30. Mr. Butt submitted that the issue of why Const. Cardi was cleared in 2007, then convicted in the present case acquires particular importance in light of the following finding by the Hearing Officer at page 3 of his Penalty Decision:

I do recognize and accept that Const. Cardi had formulated the belief that Ms. Currell was being subjected to both physical and emotional abuse by Sean Lowry. There was ample evidence entered in

the record during the Hearing to substantiate this belief.

Thus, he argued, it appears that the 2007 investigation brief will yield important information pertaining to the innocence of Const. Cardi.

31. Mr. Butt stated that Mr. Lowry alleged harassment in 2007 and his claims were dismissed as unfounded. Yet he alleged harassment again in 2010 and his allegations let to a conviction. What are the circumstances that led to this conclusion?

32. Mr. Butt argued that there is an important public dimension to tribunal proceedings under the Act. A reasonable and informed member of the public must be satisfied that these proceedings are, and appear to be, fundamentally fair. The reasonable and informed member of the public would quite properly perceive that in this case the playing field was tilted to favour the prosecution because they had important - and inevitably exculpatory - information which they were permitted to hide from the defence. Full disclosure, which was lacking here, would have created the even playing-field which is so crucial to public confidence, and indeed police officer confidence, in discipline proceedings.

33. Mr. Butt submitted that there is a policy component to the troubling non-disclosure in this case. Police officers in criminal investigations could never get away with non-disclosure of exculpatory materials as occurred here. So what does the Hearing Officer’s ruling say about police discipline if police services can treat their own less fairly than criminal accused persons by withholding exculpatory information? Disclosure of exculpatory material should not depend on whether you are a civilian or an officer. Basic fairness requires that these two categories of persons to be treated the same.

34. Further, he argued that the Hearing Officer fell into the trap of self-contradictory reasoning. For purposes of withholding the requested disclosure he opined that the misconduct proceedings were mere employment matters. But when it came to penalty, the Hearing Officer did not hesitate to

emphasize the seriousness of the charges, the crucial nature of the preserving the integrity of the CPIC system, and the need

of zero tolerance in cracking down on CPIC misuse.

35. Mr. Butt noted that the Appellant’s submissions in support of the request for disclosure of the 2007 Investigation Materials are recited verbatim in the reasons of the Hearing Officer. But they are not addressed.

36. Mr. Butt submitted that the Hearing Officer fell into the error of relying on what was disclosed, and what was done right, to somehow justify what was not disclosed. Despite all the

proper disclosure, improper nondisclosure still means the defence was treated unfairly.

37. Mr. Butt argued that the Hearing Officer did not so much as review the 2007 Investigation Materials before deciding they were irrelevant. His decision was therefore contrary to established practice in contested disclosure motions, and ill- informed. No judicial officer should be pronouncing on the value of evidentiary material without at least becoming familiar with it first. Had he reviewed the material he could have then stated “I looked at it and it is irrelevant.” At least that would be an impartial review.

38. Further, he argued that the law is clear that the prosecution must err on the side of disclosure. So even if, despite all of the points above, there is any doubt about the relevance of the

2007 Investigation Materials, that doubt must be resolved in favor of disclosure. Withholding only spawns needless litigation, and in a case like this needless appeals. And if material disclosed turns out to have no useful purpose in the hearing room, its use can be readily curtailed and no harm is

occasioned by having disclosed generously. The consequences of over-disclosure are so negligible, that the default perception about prosecutors who fight to withhold disclosure is that they have something to hide.

39. In conclusion Mr. Butt stated that taken together all of these points show that the 2007 Investigation Materials are crucial to any informed understanding of what happened in 2010, and crucial to procedural fairness. They should have been disclosed.

40. No submissions were made by the Appellant regarding the penalty imposed by the Hearing Officer.

Respondents Submissions

41. On behalf of the Respondent Mr. Dubois advised that his submissions could be divided into six parts:

a) the issues before the Hearing Officer and his findings;

b) the issue on appeal;

c) the standard of review;

d) evidence that could be relied on by the Commission;

e) the standard of disclosure under the Act; and

f) the hearing process followed by the Hearing Officer, and whether it was unfair.

42. Mr. Dubois noted that on page 41 of his Decision on Findings dated July 4, 2012, the Hearing Officer set out the central issues to be considered.

43. The Hearing Officer summarized the reasons for his findings on page 2 of his Decision as to Sanction dated September 28,

2012 where he stated:

On July 4, 2012 Constable Cardi was found guilty of discreditable conduct as charged. It was my finding that a reasonable member of the public who is fully apprised of the circumstances of his case would conclude that Constable Cardi conducted himself in a manner that would bring discredit upon the reputation of the Peel Regional Police and he had therefore committed discreditable conduct. He had a personal interest in the welfare of a friend. That personal relationship put him in a conflict of interest situation. He did not conduct the CPIC searches exclusively for official police business reasons. His credibility is negatively impacted by his lack of adherence to Peel Regional Police policy and procedure when he asserts that he was doing his job at the time the CPIC searches were conducted. The officer failed to engage in activities that are fundamental to good police work such as keeping detailed notes, submitting timely reports and keeping his supervisors apprised of his activities.

44. Mr. Dubois argued that the Hearing Officer concluded the Appellant was in a conflict of interest. The searches he conducted were not part of his work as a police officer. They were not conducted for official police business reasons. During the Service’s investigation, the Appellant was only asked to account for that specific conduct (ie. the CPIC searches on Mr. Lowry during 2009 – 2010).

45. Mr. Dubois submitted that the investigation in 2007 was not relied on during the disciplinary hearing by the prosecutor, nor in the Hearing Officer’s Decisions. The Appellant was not

asked to explain his conduct during 2005 - 2007 during his testimony in this matter.

46. Mr. Dubois questioned whether the Appellant had been “cleared” regarding the 2007 investigation. He stated that the Appellant had not been charged.

47. Mr. Dubois said that the sole issue to be decided on appeal is whether or not the decision by the Service not to disclose the

2007 Investigation Materials resulted in a manifestly unfair hearing. In his submission, it did not.

48. Mr. Dubois referred to the following passage from Sara Blake, Administrative Law in Canada, 5th ed. (Markham: LexisNexis Canada Inc., 2011) at page 221:

The question of procedural fairness is concerned with the process followed by the tribunal resulting in its final decision. The standard of review analysis discussed above applies only to the merits of the decision. It does not apply to the question of whether fair procedure was followed.

A court will interfere with a tribunal decision because of procedural errors committed by the tribunal only if those errors resulted in manifest unfairness or actual prejudice to the applicant’s right to be heard. Minor procedural lapses are not grounds to set aside a decision. What is required is a fair procedure, not perfection.

There is a presumption that fair procedure was followed. The onus is on the complaining party to satisfy the court that the tribunal committed a serious procedural error that resulted in unfairness. An actual violation of the duty of fairness must be proven. A reasonable apprehension of a violation is not sufficient for judicial review.

49. Mr. Dubois submitted that there was no procedural error, and further, in the event that there was such an error, that the Appellant has not satisfied the onus of demonstrating that such an error resulted in unfairness.

50. He stated that this is a review of the process not the decision.

If the latter, then the decision must be reasonable.

51. Regarding evidence to be looked at by the Commission, Mr.

Dubois stated that only the evidence before the Hearing Officer can be taken into account. On the Disclosure Motion before

the Hearing Officer, Const. Cardi did not lead evidence.

52. Mr. Dubois continued by dealing with the nature of police disciplinary hearings in relation to the standard of disclosure. The disciplinary actions pursuant to the Act are addressed to controlling conduct in the workplace as between the employer and employee: see Godfrey v. Ontario (Police Commission) (1991), 1991 CanLII 7115 (ON CTGD), 5 O.R. (3rd) 163 (Div. Ct.), at para. 42; Burham v. Metropolitan Toronto Police Chief 1987 CanLII 42 (SCC), [1987] 2 S.C.R. 572, at paras. 3 and 5; and, Turbucz v. Wallaceburg (Town of) Police Force (September 15, 1976, OCCPS), pages 5 and 6.

53. Mr. Dubois stated that Stinchcombe, supra, does not apply as this is not a criminal case. The standard of disclosure applicable here is found in s. 83(5) of the Act which reads:

83(5). Before the hearing, the police officer and the complainant, if any, shall each be given an opportunity to examine any physical or documentary evidence that will be produced or any report whose contents will be given in evidence.

54. In his Decision, the Hearing Officer relied on May v. Ferndale Institution 2005 Carswell B.C. 3037 (S.C.C.) in which the Supreme Court said the following at paras. 91 and 92:

55. It is important to bear in mind that the Stinchcombe principles were enunciated in the particular context of criminal proceedings where the innocence of the accused was at stake. Given the severity of the potential consequences the appropriate level of disclosure was quite high. In these cases the impugned decisions are purely administrative. These cases do not involve a criminal trial and innocence is not at stake. The Stinchcombe principles do not apply in the administrative context.

56. In the administrative context, the duty of procedural fairness generally require that the decision- maker discloses the information he or she relied upon. The requirement is that the individual must know the case he or she has to meet. If the decision-maker failed to provide sufficient information, his or her decision is void for lack of jurisdiction…

57. Mr. Dubois submitted that section 83(5) of the Act and section

8 of the Statutory Powers and Procedure Act impose an obligation to disclose reasonable information that the prosecution intends to rely upon. It is not perfection because this is not in a criminal law context. In this case, the prosecution gave Const. Cardi all materials it would rely upon.

56. In the context of a police discipline matter, a police officer must be given an opportunity to know the case to be met, to have an opportunity to test the evidence against him or her, and to provide evidence on his or her own behalf: see Kullman v. Calgary (City) Police Commission 1995 CanLII 18109 (AB QB), 168 A.R. 227 (Q.B.), at paras. 8 to 10, and 13; Morris and Ontario Provincial Police, supra, at p.2 and Cate and Peel Regional Police Service, supra, at p. 13. It is Mr. Dubois’ submission that all of these opportunities were afforded Const. Cardi.

57. Further, Mr. Dubois argued that a party to an administrative hearing is not entitled to use a request for disclosure to

rummage around in files of the adverse party to see if a case can be made. A party must be able to articulate why the requested material is relevant and is not entitled to base a disclosure application on suspicion alone: see AFG Industries Ltd. v. A.B.G.W.I.U., Local 295G, 1998 CanLII 30028 (ON LA), 1998 Carswell Ont 6205 (Ont. Arb. Bd.).

58. In AFG Industries, supra, an employee who was dismissed for smoking marijuana on the job, requested disclosure of the full investigation conducted by a private investigation firm, including the investigation relating to other employees. In reviewing the role of disclosure in labor relations matters, the arbitrator commented that it was important to prevent a fishing expedition. When discussing what factors an arbitrator

should review in considering disclosure requests, the arbitrator noted at paragraph 9:

...An arbitrator must first look at the nature of the dispute and the particular issues that need resolution. That will determine whether the requesting information is “arguably relevant’. Accordingly, the requested information must bear a clear connection or nexus to the issues in dispute. Next, fairness demands that the requested information be sufficiently particularized so that it is clear what is being sought and so the disclosure will not cause undue prejudice. Further, it is important to keep control over the proceedings by preventing any attempt to engage in a “fishing expedition” for information simply designed to bolster unsubstantiated allegations or to determine if a case exists at all.

59. Mr. Dubois argued that the Appellant claims that the 2005 -

2007 incident was referenced on several occasions during the hearing and should therefore be disclosed. The charge made against Const. Cardi was not based on any incident or conduct that occurred in 2007. The fact that Mr. Lowry complained about the conduct of Const. Cardi in 2007 was background

information only, and did not inform the charge of discreditable conduct. The prosecution relied on Const. Cardi’s conduct in

2009 and 2010 only and not on any conduct which occurred in

2008. Mr. Dubois submitted that the disclosure provided to Const.

Cardi in this case met the standard of fairness that is required in the context of a police discipline hearing.

61. Mr. Dubois also argued that the Appellant must satisfy the Commission that there is a reasonable possibility that, if the Hearing Officer erred in not ordering disclosure of the 2007

Investigation Materials, the result might have been different, such that it would amount to a miscarriage of justice to allow it to stand: see R. v. Peterson, 1996 Carswell Ont 628 (C.A.) and Mulholland and Halton Regional Police Service, (March 25,

2003, OCCPS).

62. In Peterson, supra, at paragraph 66, Osborne J. explained:

...Thus, to show prejudice as a consequence of the non- disclosure, the appellant must satisfy the court that there is a reasonable probability that, had there been proper disclosure the result might have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

63. In summation, Mr. Dubois submitted that the process cannot be unfair if it would not change the result. Here, he argued, there was reasonable disclosure and, therefore, no breach of procedural fairness. He asked that the appeal be dismissed.

Appellant’s Reply

64. In Reply, Mr. Butt stated that Const. Cardi was cleared in

65. He asked what explains the difference between 2007 and the current matter.

66. Regarding the standard of disclosure, Mr. Butt indicated the disclosure required changes depending on the proceedings. From the May case, supra, one cannot say that the Stinchcombe rules do not apply to administrative hearings. It is incorrect to say the standard depends upon the penalty being sought.

67. Mr. Butt referred to paras. 28 and 29 of the Appellant’s Factum to show that the Hearing Officer was relying on evidence of the prior events.

68. The Hearing Officer concluded that disclosure of the 2007

Investigation Materials would not have made a difference because Const. Cardi was in a personal conflict. In 2007, he was in the same position. He was cleared. He was not charged then.

Reasons for Decision

68. The principles to be applied by the Commission on an appellate review of a disciplinary decision are well settled.

69. The standard of review is clear. A Hearing Officer must interpret and apply the law correctly. His or her findings of fact, and decision regarding penalty, must be reasonable: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9. and also Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62.

70. This appeal raises a single issue: whether the Hearing Officer’s refusal to order disclosure of the 2007 Investigation Materials breached the requirements of procedural fairness and resulted in an unfair hearing. The standard of review to be applied to the Hearing Officer’s decision is correctness: Dunsmuir, supra, at para. 129, and Clifford v. Municipal Employees Retirement System, 2009 ONCA 670, at paras. 22 to 24.

71. In his Factum at para. 1, the Appellant states:

The sole issue in this appeal is non-disclosure by the prosecution that rendered the trial proceedings fundamentally unfair.

72. We agree. In our view the issue for decision on this appeal is whether the Hearing Officer’s decision not to require disclosure of the 2007 Investigation Materials was a breach of procedural fairness and resulted in an unfair disciplinary hearing.

73. The Appellant argued that the decision not to order the Service to disclose the 2007 Investigation Materials significantly handicapped his ability to defend himself against the charge, and resulted in an unfair hearing.

74. The Panel reviewed the three Decisions rendered by the

Hearing Officer, namely:

a) the Decision on the Motion brought by Const. Cardi for disclosure of the 2007 Investigative Materials;

b) the Decision as to Findings; and c) the Decision as to Sanction.

75. There were a number of admissions by Const. Cardi as set out in paras. 8 to 11, inclusive, above. The Hearing Officer relied on these admissions.

76. In our view, the incidents that occurred in 2005 to 2007 were relied on by the Hearing Officer solely for historical information as to when the involved parties met, and that the Service conducted an investigation into those incidents based on a complaint from Mr. Lowry.

77. The Hearing Officer did not read the 2007 Investigation

Materials, nor was anything from the 2007 Investigation

Materials produced as viva voce or documentary evidence before the Hearing Officer.

78. The Hearing Officer’s Decisions as to Findings and Sanction are based on the facts he found concerning the searches made by Const. Cardi in 2009 and 2010.

79. In dismissing Const. Cardi’s motion for production of the 2007

Investigation Materials, the Hearing Officer stated at para. 32:

I agree with the Respondent (the “Service”) that the Applicant (Const. Cardi) has failed to produce evidence that demonstrates that the investigation conducted in 2007 is relevant to the current allegation of misconduct. Further, I find that the Respondent has met the test of procedural fairness by providing the subject officer, Constable Joseph Cardi, with disclosure materials that permit him to understand the case against him and allow him to prepare a response to the current allegation of misconduct.

80. Stinchcombe, supra, dealt with disclosure issues in the context of a Criminal Code case.

81. The Commission has previously held that rules governing Criminal Code offences do not apply to hearings under the Act which are administrative disciplinary hearings concerning conduct in the workplace as between employer and employee: see Turbucz, supra.

82. A party to an administrative hearing such as the one decided by the Hearing Officer is not entitled to use a request for disclosure to rummage around the files of the adverse party to see if a case can be made. Such a party must be able to articulate why the requested material is relevant and is not entitled to base a disclosure application or argument on suspicion or speculation alone: see AFG Industries Ltd., supra.

83. Mr. Butt admitted in his submissions to the Panel that he was not certain if any of the information in the 2007 Investigation Materials would be of help to him.

84. The Panel agrees with Mr. Dubois’s submission, that the disclosure provided to Const. Cardi during the disciplinary hearing provided him with the opportunity to know the case to be met and to prepare his response. Further, we do not agree with Mr. Butt’s submissions that the 2007 Investigation Materials, which concerned incidents during the period 2005 –

2007, had to be relevant to and exculpatory of a charge which was based on incidents which occurred during 2009 – 2010. Our review of the record satisfies us that in convicting and sentencing the Appellant the Hearing Officer relied solely on evidence related to incidents in 2009 and 2010.

85. We find that the disciplinary hearing was fair. There was no violation of the duty of fairness owed to Const. Cardi.

86. As no submissions were made by the Appellant regarding the penalty imposed by the Hearing Officer, we would confirm the penalty imposed.

87. Accordingly, the appeal is dismissed.

DATED AT TORONTO THIS 12th DAY OF SEPTEMBER, 2013.

David C. Gavsie Georges Bedard

Associate-Chair Member