OCPC # 13-14
ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED
B E T W E E N:
CONSTABLE CHAD POWER APPELLANT
-and-
LONDON POLICE SERVICE RESPONDENT
DECISION
Panel: Jacqueline Castel, Member Zahra Dhanani, Member
Hearing Date: September 23, 2013 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: Scott Hutchison, Counsel and Samuel Walker, Associate Counsel for the Appellant, Constable Chad Power Bruce K. Brown, Counsel for the Respondent, London Police Service
Introduction
- Constable Chad Power ("Const. Power" or the "Appellant") was charged with two counts of insubordination, one count of neglect of duty and one count of discreditable conduct under the Code of Conduct ("Code of Conduct"), set out as a Schedule to Ontario Regulation 268/10 enacted under the Police Services Act R.S.O. 1990, c.P.15, as amended, (the "Act"). The details of the charges in the Notice of Hearing (the "Notice") are as follows:
Count # 1 – Insubordination:
You are alleged to have committed Misconduct by Insubordination on or about February 13, 2011, in that you did not comply with a lawful order given by Sergeant Paul Bastien to answer questions related to a personal computer used to purchase stolen clothing, contrary to section 80, sub-section 1, clause (a) of the Police Services Act 1990 and section 2, subsection 1, clause (b), paragraph (ii) of the schedule Code of Conduct in Regulation 268/10.
Count # 2 – Insubordination:
You are alleged to have committed Misconduct by Insubordination between February 13, 2011 and February 16, 2011 in that you did not comply with a lawful order given by Sergeant Paul Bastien to provide Sergeant Bastien with any information you had, in any form, in relation to your coming into possession of the articles of clothing stolen from New Balance London, on December 15, 2010, contrary to section 80, sub-section 1, clause (a) of the Police Services Act 1990 and section 2, subsection 1, clause (b), paragraph (ii) of the schedule Code of Conduct in Regulation 268/10.
Count # 3 – Discreditable Conduct:
You are alleged to have committed Misconduct by Discreditable Conduct, in that you acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force between December 15, 2010 and January 25, 2011, by purchasing property which you knew or ought to have known, had been obtained by the commission of a Criminal Offence, contrary to section 80, sub-section 1, clause (a) of the Police Services Act 1990 and section 2, subsection 1, clause (a), paragraph (xi) of the schedule Code of Conduct in Regulation 268/10.
Count # 4 – Neglect of Duty:
You are alleged to have committed Misconduct by Neglect of Duty, in that you, without lawful excuse, neglected or omitted promptly and diligently to perform a duty as a member of the police force between December 15, 2010 and February 16, 2011, by failing to establish the identity of the seller of goods stolen in a break and enter, and by failing to fully disclose information to London Police Service investigators in relation to that seller, contrary to section 80, sub-section 1, clause (a) of the Police Services Act 1990 and section 2, subsection 1, clause (c), paragraph (i) of the schedule Code of Conduct in Regulation 268/10.
In June of 2012 a four day hearing was held before Retired Superintendent M.P.B. Elbers (the "Hearing Officer"). At the hearing Const. Power pled not guilty to all charges.
On August 31, 2012, the Hearing Officer dismissed the two counts of insubordination and found him guilty on the two other counts: neglect of duty and discreditable conduct. On November 30, 2012, the Hearing Officer imposed a penalty demoting Const. Power from 1st Class Constable to 2nd Class Constable for a period of 6 months.
Const. Power is appealing both the decision on conviction and on penalty.
A hearing on this appeal was held at the Ontario Civilian Police Commission (the "Commission") on September 23, 2013.
Decision
- For the reasons set out below, we set aside the Hearing Officer's decision and order a stay of the proceedings on all 4 counts against Const. Power.
Background
On December 15, 2010 the London Police Service (the "Service") investigated a break and enter incident at a New Balance store located at 1422 Fanshawe Park Road West in London, Ontario ("New Balance"). The Service found that close to $10,194.33 of clothing was stolen from this store as a result of this incident.
On January 22, 2011 Const. Power conducted a query of New Balance on the Service's Records Management System. He learnt that thefts had occurred at the store recently. He stated in evidence that he had queried New Balance to find their address.
On January 24, 2011 Const. Power went into New Balance and attempted to exchange three items of clothing. The sales agent rang the items through the computer and found that they were flagged as items that were stolen during the break and enter. The sales agent informed him that the items might be stolen and that he would have to speak with the manager. The sales agent kept the clothing items and asked Const. Power to return the next day when the manager would be there.
On January 25, 2011 Const. Power returned and spoke to the manager. He told the manager that he had been given the clothing as a gift from his mother. The manager confirmed that the items Const. Power returned were stolen from the store and their value was $290.00.
During every visit to the store, Const. Power was respectful and provided identification without difficulty. He also did not identify himself as a police officer at any time.
A criminal investigation had commenced into the break and enter at New Balance immediately after it was reported in December, 2010.
In February, 2013 another criminal investigation was commenced into the potential involvement of Const. Power in the New Balance incident. The investigation related to two potential criminal charges against him: (1) possession of stolen property and (2) theft by conversion. The criminal investigation was led by Sergeant Poustie ("Sgt. Poustie").
An internal Professional Standards Unit ("PSU") investigation into the conduct of Const. Power was also initiated at this time, headed by Sergeant Bastien ("Sgt. Bastien").
Inspector Williams, a supervisor with the PSU, held a meeting with both Sgt. Poustie and Sgt. Bastien where it was agreed that the investigations were to be conducted separately, with the "criminal investigation taking priority". It was agreed that the optimum conditions would be "two siloed investigations". Inspector Williams supervised both investigations.
This notion of two "siloed" investigations was abandoned from the outset. As the Hearing Officer said at page 8 of his decision:
That process fell apart quickly as the officers collaborated on each other's investigation almost immediately from the start of the assignment. Sergeant Bastien was in attendance and monitored the criminal interview of Power by Det. Poustie. He assisted Poustie in preparing the information to obtain a search warrant on the residence of Power. Poustie reported his findings at the conclusion of the search warrant to Sgt. Bastien. The computer was not located at the residence. Power then is ordered to attend an interview with Bastien on the 13th of February with the end result being that he ordered Power to provide to Poustie the computer emails which would assist the criminal investigation. The PSA interview was then read by Poustie on the 15th of February when he returned to work. The Order was given, in my mind, by the investigator of the PSA investigation for the explicit purpose to further the criminal investigation.
The two investigations were conducted in concert by Sgt. Poustie and Sgt. Bastien (admitted by both investigators in testimony).
During the investigation Const. Power revealed that he actually bought the clothing for $100.00 from someone on the online site "Kijiji.com". He met the person in a parking lot and exchanged his money for the clothing. He did not provide a detailed physical description of the seller, nor did he provide the emails exchanged between them. Const. Power did not supply any information to the Service that would help identify the person who sold him the clothing.
Const. Power did not surrender his computer when he was asked to in order to assist the investigations including:
a) during the compelled PSU interview conducted by Sgt. Bastien; and
b) when his residence was searched pursuant to a search warrant.
Appellant's Submissions
Mr. Hutchison submitted that the Hearing Officer erred in law by failing to make a finding on the Appellant's argument that the merging of the criminal and PSU investigations amounted to an abuse of process.
The Appellant argued that the criminal and PSU investigations merged right from the beginning of the investigations. Examples of this included that:
- both investigators fed information to the same Inspector;
- they worked as a team to create a plan with respect to investigating the Appellant;
- both investigators monitored and reviewed each other's interviews with the Appellant; and
- they collaborated on paperwork for the investigations.
Mr. Hutchison acknowledged Const. Power declined to fully comply with some orders given over the course of the investigations, but argued that was because Const. Power rightfully feared that he was being ordered unlawfully to incriminate himself in the aid of the criminal investigation.
He submitted that the PSU investigator deliberately used interviews with the Appellant and orders given under the PSU investigation to advance the criminal investigation.
The Appellant stated that even after the Crown Attorney found that none of the evidence could lead to criminal charges against Const. Power, the Hearing Officer still made findings of guilt.
Mr. Hutchison submitted that the disciplinary hearing should have been stayed because the entire PSU investigation was used improperly by the Service. This was a breach of Const. Power's constitutional rights, by compelling him to provide evidence to feed an active criminal investigation into his own conduct. He further argued that the disciplinary hearing was tainted by this unconstitutional, illegal and abusive conduct.
He stated that the Hearing Officer found that the two investigations improperly merged, yet failed to adjudicate on defence counsel's motion to stay the proceedings because the aforementioned conduct resulted in an abuse of process. Mr. Hutchison submitted that the failure to rule on this motion amounted to an error in law.
Mr. Hutchison argued that the criminal investigation was conducted using methods that are explicitly prohibited under section 7 of the Charter of Rights and Freedoms (the "Charter")1.
The Appellant acknowledged that the failure of the Hearing Officer to make any ruling on the stay motion was not in itself an error requiring reversal. Rather, the Commission must consider the merits of the stay application made at the Hearing and decide whether the failure of the Hearing Officer to rule on the motion could have made a difference to the outcome of the case: see R. v. Short, [1991] B.C.J. No. 3515 (CA) and R. v. P.S.L., (1995) 103 CCC (3d) 341 (BCCA), at para. 42.
Mr. Hutchison submitted that a stay is the appropriate remedy where the proceedings are "tainted to such a degree that to allow it to proceed would tarnish the integrity of the tribunal": see R v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p.1667. He argued that the proceedings, in this case, were so tainted.
1 Charter of Rights and Freedoms, Constitution Act, 1982, Part 1.
Respondent's Submissions
Mr. Brown argued that this case is about honesty and integrity. Const. Power lied to New Balance that he got the clothing as a gift from his mother and he did not provide any real assistance with respect to finding the person who was responsible for the break and enter.
Mr. Brown acknowledged that the Service did make mistakes in this investigation. He stated that the Investigators did what they did in "good faith" to find out who was behind the break and enter at New Balance. The criminal investigation was about the break and enter. Const. Power was only investigated to lead to a suspect in that matter.
The Respondent submitted that when Const. Power was interviewed by Sgt. Bastien he was not forthcoming, even after he was ordered to provide all information in relation to the use of his computer for purchasing stolen property.
Mr. Brown stated that it was explained to Const. Power that no evidence obtained in the course of the disciplinary investigation could be used against him in a criminal proceeding. It was further submitted that statements of evidence obtained in the PSU investigation were not part of the package forwarded to the Crown Attorney for consideration of the criminal charges against him.
The Respondent submitted that the Hearing Officer was aware of and applied the law and the required standard of proof, and he made appropriate and reasonable findings based on the evidence.
Mr. Brown argued that the proper test for review of the Hearing Officer's decision was that the decision was made without evidentiary foundation, or contained manifest errors in principle: see Groat v. Quinte West Police Service, (November 26, 2001, OCPC). He submitted that the Hearing Officer in this case carefully considered the evidence and made an appropriate determination.
The Respondent argued that the relief sought by the Appellant would be more appropriate in a criminal setting than in an administrative law context. The Act does not provide for penalties involving penal consequences affecting life and liberty, nor does the Act contemplate incarceration. See, In the Matter of the Ontario Provincial Police and Provincial Constable B.M. (Bradley) Charette, #7688, Unreported, March 2, 2011, Page 14.
Mr. Brown submitted that police officers are held to a higher standard of conduct than the general population. As such, it is in the public interest to adjudicate this case on its merits. Charette, supra.
Mr. Brown stated that it is not appropriate to grant a stay of proceedings pursuant to s. 24 (1) of the Charter as a result of a breach of section 7 of the Charter because the right to practice a profession is not akin to one's "life, liberty and security." The section 7 Charter "right to security of the person" protects only one's psychological integrity from the actions of the state which have a serious and profound effect on the individual.
Mr. Brown urged that a stay of proceedings in a disciplinary context should only be available in the rarest of circumstances.
Issues
- The issues the Appellant placed before us are:
a.) Did the Hearing Officer fail to make a finding on the Appellant's motion to stay the proceedings; if so, should the Hearing Officer have stayed the proceedings?
b.) Did the Hearing Officer err by finding that there was clear and convincing evidence that the Appellant knew that the items he purchased were stolen at the time that he purchased them?
c.) Did the Hearing Officer make the finding that Const. Power was guilty of Neglect of Duty without any evidentiary foundation? and,
d.) Did the Hearing Officer impose a penalty that was excessive, unnecessary and outside the range of possibilities?
- As a result of our decision on point a), we do not need to answer the questions in points b), c) and d) above.
Reasons and Analysis
Standard of Review
The principles to be applied by the Commission on an appellate review of a disciplinary decision are well settled.
The standard of review with respect to the Hearing Officer's interpretation and application of the law is correctness: see Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (Ont. C.A.) The standard of review for the Commission with respect to the Hearing Officer's factual findings is reasonableness: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 and Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (Can LII).
The Supreme Court of Canada described the standard of reasonableness as being concerned mostly with the existence of justification, transparency and intelligibility in the decision-making process but also whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the law and facts: see Dunsmuir, supra.
The role of the Commission is not to second-guess the decision of the 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 on clear and cogent evidence and are articulated in an intelligible, transparent and logical manner: see Precious and Hamilton Police (2002) 3 O.P.R. 1561, (OCCPS); Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div. Ct.); and Dunsmuir, supra.
In certain limited cases it may be open to us to reach a different conclusion from the one reached by the Hearing Officer. However, we should only intervene if there has been an error in principle, or relevant factors have been ignored: see 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).
In the case before us, Mr. Hutchison presented the alleged errors as both errors of law and errors of fact. The error in point a) is an error of law and therefore reviewable on the standard of correctness.
Did the Hearing Officer fail to make a finding on the Appellant's motion to stay the proceedings?
For the reasons set out below we find that the Hearing Officer failed to make a ruling on the Appellant's motion for a stay.
The motion was presented to the Hearing Officer on the last day of the hearing. At this point, the Hearing Officer had heard all of the evidence and was in a position to make a ruling.
On page 6 of his decision on findings the Hearing Officer summarised the motion put forward by Mr. Hutchison, stating:
The motion is for: (a) A stay of proceedings for abuse of process; (b) In the alternative, a stay on Counts 1, 2 and 4 of the Notice of Hearing for abuse of process; and (c) Such further and other relief as counsel may advise and this tribunal may permit.
- The Hearing Officer then made note of the material submitted by both parties, mentioned that he read the case law supplied by counsel and specified how he was going to proceed to rule on the motion:
As I reflect on the submissions by counsel on the Motion and the submissions made by Counsel on the merits of the case, I find that both are similar with their positions in relation to the Motion request and the merits of the case. It would be my position to address the motion and the findings on the merits simultaneously in my decision.
The Hearing Officer should have ruled on the motion first and then made the findings decision separately. The decision as it is written is confusing and unclear. To afford the Hearing Officer some latitude as he is not a lawyer, we try to deduce if he did in some fashion decide the motion in his reasons for the decision.
Beginning at page 7 of the decision up to page 9, the Hearing Officer deals with the lawfulness of the two orders given to Const. Power by Sgt. Bastien, who was overseeing the PSU investigation. The two orders in counts 1 and 2, were the orders that Const. Power was alleged to have disobeyed, leading to the 2 counts of Insubordination. (emphasis added)
At page 8 the Hearing Officer states, "The issue that I am faced with in this case is whether the Order was proper or lawful." He concludes that "The collaboration of the investigators together with the Order given to Power renders the Insubordination charge not lawful in the opinion of the trier of fact in this case." (emphasis added)
At page 9 the Hearing Officer states:
In no way can a reasonable person looking at these two investigations, as they were conducted, deduce that they were kept separate and conducted in a proper manner...It is the decision of this Tribunal that Counts One and Two, Insubordination, will be dismissed against Constable Power.
The Hearing Officer found that count 4 was not a result of the same unlawful orders, but a charge related to Const. Power's own conduct and therefore on page 13 of his decision states that, "Count Four in my mind... is a live issue for this Tribunal to consider." The rest of the Hearing Officer's decision contains his findings on counts 3 and 4.
We find that the Hearing Officer lost sight of the true question before him. A finding that the Insubordination charges were not based on lawful orders is not the same as a ruling on whether there was an abuse of process during the investigations. (emphasis added)
The question before him was whether or not the conduct engaged in by the Service during the two investigations of Const. Power amounted to an abuse of process. The question he answered was whether the orders leading to counts 1, 2 and 4 were lawful.
In the Hearing Officer's reasons there is not even mention of abuse of process. We find that the Hearing Officer did not adjudicate the Appellant's motion for a stay of the disciplinary proceedings. This constitutes an error of law because at its core, it is a question of natural justice and procedural fairness: see Clifford v. A.G. Ontario, OMERS, et al. 2009 ONCA 670.
The Supreme Court has held that when tribunals or courts are applying the correctness standard, "a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question." See Dunsmuir, supra, at paragraph 50. (emphasis added)
Therefore, we must now undertake an analysis of whether the conduct engaged in by the Service during the PSU investigation and criminal investigation into the conduct of Const. Power constitutes an abuse of process and, if so, what is the appropriate remedy.
A) Was there an abuse of process?
We find that the merged investigations amount to an abuse of process for the reasons which follow.
"Abuse of process" is a common law principle by which proceedings may be stayed when allowing them to proceed would be oppressive. Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para 116.
In the criminal law context, the Supreme Court of Canada has held that an abuse of process is where the proceedings are "unfair to the point that they are contrary to the interests of justice": see R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601.
In administrative law the doctrine of abuse of process, while used in the rarest of circumstances, is a live principle. The Supreme Court of Canada held in Blencoe, supra, at para. 144 that "Administrative Law abuse of process doctrine is fundamentally about protecting people from unfair treatment by the state... When we ask whether there has been an administrative law abuse of process, we ask the same fundamental question: has an administrative agency treated people inordinately badly?"
In, Blencoe, supra, at para. 114, the Supreme Court of Canada held that to prove an abuse of process has occurred a party must demonstrate that:
i.) the fairness of the hearing has been compromised; and
ii.) the abuse has caused a significant prejudice to the hearing, so much so that it would bring the justice system to disrepute.
As we examine these questions against the facts before us, we find that an abuse of process has occurred here.
Using the Part V power under the Act to compel evidence in a disciplinary matter against a police officer, to assist a criminal investigation against the same officer, is completely outside of the legal limits of the investigators.
The Supreme Court of Canada explained in R v. Jarvis, 2002 SCC 73, [2002] S.C.J. No 76 (SCC), at paras. 97 and 98 that:
The predominant purpose test does not thereby prevent the CCRA from conducting parallel criminal investigations and administrative audits.... However, if an investigation into penal liability is subsequently commenced, the investigators can avail themselves of that information obtained pursuant to the audit powers prior to the commencement of the criminal investigation, but not with respect to information obtained pursuant to such powers subsequent to the commencement of the investigation into penal liability.
In summary, whenever the predominant purpose of an inquiry or question is the determination of penal liability, criminal investigatory techniques must be used. As a corollary, all Charter protections that are relevant in the criminal context must apply." (emphasis added)
The investigators violated this clear direction from the Supreme Court of Canada in Jarvis. At the hearing both Sgt. Bastien and Sgt. Poustie confirmed that they used the Part V regulatory powers to obtain evidence and compel statements from the Appellant to feed and advance the criminal investigation into the Appellant.
Specifically, Sgt. Bastien and Insp. Williams used the Act's regulatory powers to order the Appellant to renounce his right to remain silent and right against self-incrimination, in an interview which would be provided to further a criminal investigation into his conduct. This occurred again when he was ordered to provide information relating to the purchase of stolen clothing.
While testifying at the hearing, Sgt. Bastien acknowledged that he was violating the Appellant's rights and excused his behaviour by saying the Appellant would likely receive a remedy in the criminal context at a later date.
There was overlap between the two investigations at every stage of the process: 1) evidence gathering, 2) information and analysis sharing and 3) strategizing among Inspector Williams, Sgt. Bastien and Sgt. Poustie. (emphasis added)
Throughout the record it is evident that the investigators knew that the criminal and regulatory investigations were to be conducted separately. In the very first interview of Const. Power, conducted by Sgt. Poustie, a significant portion of the transcript was of Sgt. Poustie describing the difference between statements made voluntarily and compelled evidence under the Act.
The investigators knew full well that it was illegal to use the information obtained pursuant to their regulatory powers subsequent to the commencement of the investigation into criminal liability. The record affords no doubt about that.
They also were aware that it was contrary to s.7 of the Charter to use the regulatory powers in the Act to compel evidence to advance the criminal investigation. However they knowingly disregarded the law and the Appellant's Charter rights.
As such we find that this is not a case where the investigators can be said to have acted in "good faith".
We find that this deliberate violation of the law and the Appellant's Charter rights constitutes a very serious abuse of process at common law.
It is clear from the record that both investigations were completely merged from the beginning to the end. There was no separation. All of the evidence before the Hearing Officer came out of these illegal and tainted investigations. To go ahead with the disciplinary hearing based on these tainted investigations compromised the fairness of the hearing.
It brings the police discipline system into disrepute to discipline an officer based on evidence that was acquired in this manner. It also undermines the public confidence that Act based investigations and proceedings will be conducted in a manner that is fair, lawful and respectful of a subject officer's constitutional rights.
We find that the conduct of the investigators during the criminal investigation and PSU investigation to be unfair to the point of being "contrary to the interests of justice". This caused significant prejudice to the hearing and brought the justice system into disrepute. As such we find that there has been an abuse of process in the case before us.
The abuse of process which occurred in this case was egregious. It was by no means a case of an isolated, accidental incident of regulatory and criminal investigations overlapping. Rather, it was a case of a deliberate and continuous merger of regulatory and criminal investigations from the very outset. There was a blatant disregard of the law and the Appellant's rights. As such we find that this is one of the rare cases where an abuse of process finding is appropriate.
B) What is an appropriate remedy?
Section 23 (1) of the SPPA states that: "A tribunal may make orders and give directions as it considers proper to prevent abuse of its processes".
Mr. Brown argued that a stay of the disciplinary proceeding was not an appropriate remedy under s.24 of the Charter, as the Act does not consider or allow for penalties involving penal consequences affecting life and liberty.
However, we find that the Hearing Officer had the authority to order such a remedy both at common law and under s.23 of the SPPA.
In balancing the public interest to adjudicate this case on its merits against the abuse of process that has occurred, we find that the abuse by the investigators holds a greater threat to the public interest than the public interest in holding Const. Power accountable.
The serious misconduct by the investigators was admitted, and the constitutional violation was conducted knowingly and deliberately. The investigators conduct did not occur in good faith.
All of the evidence before the Hearing Officer cannot be separated from the illegal investigations. To go ahead with the disciplinary hearing based on tainted investigations compromises the fairness of the hearing.
Therefore we find that the abuse of process which occurred in this case violated the "fundamental principles of justice which underlie the community's sense of fair play and decency." Blencoe, supra, at paras. 118 and 119. This case involved a serious and deliberate constitutional violation which tainted the entire proceedings, undermining the public confidence that police investigations and proceedings are conducted in a way which is fair and lawful.
At this stage of the process there is no turning back. To order another hearing would be meaningless because the Hearing Officer would be faced with a proceeding without evidence. In this case, all of the evidence has been tainted.
Because both the PSU investigation and criminal investigation were merged right from the beginning, Const. Power's responses and actions were driven by the fear of self-incrimination.
We cannot know whether he would have responded differently to the PSU investigation had there not been a parallel criminal investigation being conducted in the way that it was. What we do know is that his actions were completely influenced by the knowledge of this.
In reaching his decision on Discreditable Conduct and Neglect of Duty, the Hearing Officer relied on evidence from the improper and illegal investigation. It was entirely inconsistent for the Hearing Officer to find the Appellant not guilty of Insubordination for refusing to participate in an illegal investigation, but then using evidence from that same illegal investigation to find the Appellant guilty on two other counts.
Investigations conducted by police officers have to be conducted with the greatest respect for fairness because they are the foundation of all further prosecution of offenses. It brings the police disciplinary system into disrepute to convict an officer using evidence that was obtained through an investigation process which we have found amounted to an abuse of process.
While a stay is not the only remedy available in administrative law proceedings for an abuse of process, we find that there can be no other remedy in this case. The serious and deliberate violation of the Appellant's Charter rights, as well as allowing this hearing to proceed based on evidence that was obtained illegally, would be oppressive and bring the system of administrative justice into disrepute.
The only remedy that would maintain the public confidence in the police discipline process would be to stay the disciplinary proceedings against the Appellant.
Conclusion
The correct adjudication of the motion would have led to a finding that an abuse of process had occurred and we find that the correct remedy, in the circumstances of this case, would have been a stay of the proceedings.
In summary:
a. The Hearing Officer erred in law by failing to adjudicate the Appellant's motion for a stay.
b. The Hearing Officer failed to give a remedy appropriate to the abuse of process manifest in this case.
c. The error in this decision amounts to a breach of procedural fairness, natural justice and fundamental justice.
- For the reasons set out above, we set aside the Hearing Officer's decision and order a stay of the proceedings on all 4 counts against Const. Power.
DATED AT TORONTO THIS 23rd DAY OF DECEMBER 2013
Jacqueline Castel Member, OCPC
Zahra Dhanani Member, OCPC