Wall v. Wong and Toronto Police Service, 2014 CanLII 100623

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Wall v. Wong and Toronto Police Service, 2014 ONCPC 11

BETWEEN:

MR. JASON WALL MOVING PARTY

-and-

CONSTABLE VINCENT WONG RESPONDING PARTY

-and-

TORONTO POLICE SERVICE RESPONDING PARTY

RULING ON MOTION

Panel: David C. Gavsie, Associate Chair Roy Conacher, Q.C., Vice Chair Georges Bedard, Member

Hearing: In Writing

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:

Kathleen Burke, Counsel for the Moving Party, Jason Wall. Alan D. Gold and Melanie Webb, Counsel for the Responding Party, Constable Vincent Wong. Sie-Wing Khow, Counsel for the Responding Party, Toronto Police Service.

Introduction

1Jason Wall (“Mr. Wall”), a public complainant, seeks leave from the Ontario Civilian Police Commission (the “Commission”) pursuant to s. 87 (4) of the Police Services Act, R.S.O. 1990, c. P.15, as amended (the “Act”) to appeal a penalty decision of the Hon. Judge W. Gonet (the “Hearing Officer”) dated March 25, 2014 (the “Decision”) by which Constable Vincent Wong (“Const. Wong”), badge 8456 of the Toronto Police Service (“TPS”) was ordered suspended without pay for not less than one day pursuant to s.85(1)(d)of the Act.

2TPS takes no position on this application.

Decision

3The Panel grants leave to Mr. Wall to appeal the penalty handed down by the Hearing Officer in the Decision.

Background

4On Sunday, June 27, 2010, while on duty, Const. Wong arrested Mr. Wall at approximately 10:00 a.m. This occurred on the morning after riots had occurred in downtown Toronto during the G20 Summit.

5Const. Wong arrested Mr. Wall for wearing a disguise with intent to commit an indictable offence under section 351(2) of the Criminal Code of Canada, R.S.C. 1985, c. C46, as amended. His belongings were searched, and according to Mr. Wall, he remained in custody for approximately 28.5 hours. He was thereafter released without charge.

6Mr. Wall filed a complaint with the Office of the Independent Police Review Director (“OIPRD”) in respect of his arrest.

7The OIPRD concluded that that arrest was unlawful and directed the Chief of the TPS to hold a disciplinary hearing as to whether Const. Wong had committed Misconduct by making an unlawful arrest without good and sufficient cause contrary to s. 2(1)(g)(i) of the Code of Conduct set out as a Schedule to Ontario Regulation 268/10 and therefore contrary to s. 80(1)(a) of the Act.

8In his findings dated December 13, 2013, the Hearing Officer found that PC. Wong did commit Misconduct as alleged.

9In the Decision, the Hearing Officer ordered that PC Wong be suspended without pay for not less than one day pursuant to s. 85(1) (d) of the Act.

Moving Party’s Submissions

10Mr. Wall submits that the test for leave to appeal the Decision is contained in Parker v. Blakely (May 13, 2004, OCCPS). The Commission said at p. 3:

In our view, Leave to Appeal should be granted if one of the following conditions is met:

1. The decision is clearly wrong on its face and the appeal involves matters of such importance that leave ought to be granted; or

2. There is a conflicting decision of the Commission on the matter involved in the proposed appeal and it is desirable that leave be granted; or

3. The matters raised in the proposed appeal are of significant importance to the policing profession as a whole and the community at large.

11Mr. Wall states that in Parker v. Blakely, supra, the Commission concluded that the appropriate range of penalties for violations of one’s rights under the Canadian Charter of Rights and Freedoms (the “Charter”) was of significant importance to the policing profession and to the community as a whole, and granted leave to appeal.

12Mr. Wall submits that the Hearing Officer’s finding that Const. Wong had committed Misconduct by wrongly arresting Mr. Wall establishes that Mr. Wall’s Charter rights were infringed. These Charter rights are found in sections 7, 8 and 9 of the Charter, being his right to liberty, his right to be secure against unreasonable search and his right not to be arbitrarily detained or imprisoned, respectively.

13Mr. Wall submits that the appropriate penalty for an arrest that breaches Charter rights is of significant importance to the policing profession and the community as a whole.

14Mr. Wall continues that since the arrest happened during the 2010 Toronto G20 Summit with significant media attention, police accountability for the arrests during this time is of significant importance to the police and the community as a whole.

15Mr. Wall further argues that the Commission has broad discretion to grant leave to appeal to a public complainant under s. 87(4) of the Act: (see Christian v. Grbich, (February 13, 2002, OCCPS), and Masters v. Kiproff (April 18, 2006, OCCPS).

16Mr. Wall refers to the Declaration of Principles contained in section 1 of the Act and the Commission’s mandate to be guided by fundamental fairness, and submits that it is appropriate to grant leave to appeal.

Responding Party’s Submissions

17Const. Wong opposes the request for leave to appeal.

18Const. Wong states that caution ought to be exercised when relying on Parker v. Blakely, supra, since the ruling of the Commission was overturned on appeal at the Divisional Court level and the Hearing Officer’s penalty of a reprimand was restored: see Blakely v. Quinte West Police Service [2007] O.J. No. 3109 (Div. Ct.).

19He submits that the proper test for leave to appeal is whether there is a fairly arguable case of importance and substance that could be raised as to the correctness of the decision: see Ward v. Worker’s Compensation Board, [1984] P.E.I.J. No. 39 (PEISC). He further submits there has been no arguable issue raised nor errors in principle alleged by Mr. Wall.

20Const. Wong further submits that Parker v. Blakely, supra, involved a Notice of Hearing which specifically alleged a Charter breach. In this case, there was no specific finding by the Hearing Officer nor mention in the Decision that the officer violated any of Mr. Wall’s Charter rights. It is therefore not open to the complainant on appeal to declare that his Charter rights were violated.

21Const. Wong continues that the issues in this case are fact-specific. It is inappropriate to argue, as the Moving Party does, that since the arrest happened in the time of the 2010 Toronto G20 Summit riots, and because of the subsequent media attention, that police accountability for the arrests during this time is of significant importance to the policing profession and the community as a whole.

22Const. Wong submits that this is not the first disciplinary hearing to deal with an alleged breached of Charter rights. The Moving Party has raised no novel issue. Mr. Wall cannot be granted leave simply because he is not satisfied with the penalty Decision. Police accountability has been the central issue in the OIPRD investigation and the resulting disciplinary hearing. The fact that this case occurred during the G20 Summit does not automatically give Mr. Wall a right of appeal nor should it mean that the Commission should grant leave.

23Const. Wong submits that the fact he has brought his own appeal on the matter before the Commission is not grounds to grant Mr. Wall leave to appeal the penalty. He states that the request for leave to appeal should be dismissed.

Reasons

24The issue before the Commission is whether or not the application of Mr. Wall for leave to appeal the penalty imposed on Const. Wong by the Hearing Officer should be granted. If leave is granted, the Commission will proceed to hear the appeals of both Mr. Wall and Const. Wong and, possibly, TPS on the issue of the penalty Decision. If leave is not granted, the Commission will only hear the appeal of Const. Wong.

25The powers of the Commission with respect to appeals are found in s.87 of the Act. It provides in part, as follows:

s.87(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held under subsection 66(3), 68(5) or 76(9), by the chief of police or under subsection 69(8) or 77(7) by the board, appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

s.87(2) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a police officer.

s.87(3) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a complainant if the appeal is from the finding that misconduct or unsatisfactory work performance was not proved on clear and convincing evidence.

s.87(4) The Commission may hold a hearing, if it considers it appropriate, upon receiving a notice under subsection (1) from a complainant with respect to an appeal other than an appeal described in subsection (3).

26The Commission held in Christian v.Grbich, supra, that in order for any application for leave to appeal to succeed two requirements must be met. We note that the decision in that case was made under s. 70(4) of the Act as it read prior to October 19, 2009. It is now s. 87(4) of the Act. First the application must be made in accordance with the Commission’s Rules. That requirement has been satisfied in this case. Second, the application must be found to be “appropriate”. Section 87(4) specifically uses this term. However, the Act does not define what the appropriate circumstances are. In addition, there is no case law on the subject.

27In Christian v. Grbich, supra, the Commission found that it has a broad discretion with respect to granting leave to appeal under s. 87(4) of the Act. The Commission notes that this discretion should always be exercised with great care, caution, and under the correct circumstances, to assure fairness. By the wording of s.87(4), it is apparent that the Legislature intended that the ability of a public complainant to appeal a penalty decision from a disciplinary hearing is limited and not a matter of right.

28We disagree with the Moving Party that just because the arrest happened during the 2010 Toronto G20 Summit with all of the subsequent media attention, that police accountability for the arrest should automatically be considered to be of significant importance to the policing profession and the community. Also, the fact that Const. Wong has brought his own appeal before the Commission is not a ground to grant leave to appeal.

29The test for leave to appeal a penalty decision under section 87(4) of the Act was correctly set out by the Commission in Parker v. Blakely, supra. Leave to appeal ought to be granted if one of the following tests is met:

a. The decision is clearly wrong on its face and the appeal involves matters of such importance that leave ought to be granted; or

b. There is a conflicting decision of the Commission on the matter involved in the proposed appeal and it is desirable that leave be granted; or

c. The matters raised in the proposed appeal are of significant importance to the policing profession as a whole and the community at large.

30Const. Wong argues that caution ought to be exercised when relying on Parker v. Blakely, supra, since the ruling of the Commission was overturned on appeal to the Divisional Court. It is our view that the Divisional Court was concerned with whether the Commission properly considered all relevant factors in determining the appropriate penalty after leave to appeal was granted. The Divisional Court said nothing about the three tests laid out by the Commission.

31Const. Wong submits that the proper test is a fairly arguable case of importance and substance that could be raised as to the correctness of the decision.

32It is our view that the correctness of the decision is a matter for the appeal process if leave to appeal is granted.

33Const. Wong further states that Parker v. Blakely, supra, involved a Notice of Hearing which specifically alleged a Charter breach. In this case, there was no specific allegation that the officer had violated any Charter rights. In fact, there is no mention of the Charter in either decision of the Hearing Officer.

34The concerns raised by the Moving Party are serious. The Hearing Officer found that Mr. Wall was arrested without reasonable and probable grounds. Although the Hearing Officer did not mention Charter rights, as a result of Mr. Wall’s arrest his bag was searched and he was detained in police custody for approximately 28.5 hours. His arrest may have infringed his rights under sections 7, 8 and 9 of the Charter, being respectively, his right to liberty, his right to be secure against unreasonable search, and his right not to be arbitrarily detained or imprisoned.

35The Commission noted in Christian v. Grbich, supra, that the Province of Ontario is the only jurisdiction in Canada that has formulated a Declaration of Principles in its policing legislation. These are found in s. 1 of the Act. The Declaration of Principles states that police services shall be provided throughout Ontario in accordance with principles that include the following:

1. The need to ensure the safety and security of all persons and property in Ontario.

2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.

3. The need for co-operation between the providers of police services and the communities they serve.

36As stated in Christian v. Grbich, supra, the Province of Ontario has recognized the rights, needs and safety of its citizens with respect to police services. Our policing systems must work for our citizens.

37The Moving Party was arrested without reasonable and probable grounds, his belongings searched and he remained in police custody for a very significant period of time. In the end, he faced no charges. In the specific circumstances of this case, we find that the appropriate penalty for this treatment by police is of significant importance to both the policing profession and the general community.

38Accordingly, given our discretion under the Act, the Declaration of Principles contained in the Act and, in particular, our mandate to be guided by fundamental fairness, for the reasons set out above, we grant the Moving Party leave to appeal the Decision.