ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
CONSTABLE NOOR KHAN
APPELLANT (MOVING PARTY)
-and-
YORK REGIONAL POLICE SERVICE
RESPONDENT (RESPONDING PARTY)
RULING ON MOTION
AMENDED
Panel: Zahra Dhanani, Member Jacqueline Castel, Member
Hearing Date: April 15, 2014
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
David Butt, Counsel for the Moving Party
Jason Fraser, Counsel for the Responding Party (by teleconference)
Introduction
Constable Noor Khan (“Const. Khan” or the “Applicant”) was found guilty of discreditable conduct, deceit and two counts of insubordination under the Code of Conduct, set out as a Schedule to Ontario Regulation 268/10 under the Police Services Act, R.S.O. 1990, c.P.15, as amended (the “Act”), at a hearing before Superintendent Graeme Turl (the “Hearing Officer”). At a subsequent hearing on penalty, the Hearing Officer ordered that Const. Khan would be dismissed if he did not resign within 7 days. Const. Khan appealed the findings of misconduct and the penalty to the Ontario Civilian Police Commission (the “Commission”).
The allegations and findings at the disciplinary hearing under the Act related to Const. Khan’s interactions with RC1 on January 27, 2011.
At a criminal trial before The Honourable Mr. Justice B. Frazer of the Ontario Court of Justice on charges related to the events on January 27, 2011, Const. Khan was found guilty of sexually assaulting RC.
Const. Khan has not yet been sentenced for sexual assault and still has all of his appellate rights intact with respect to the criminal proceedings. He has 30 days from the criminal sentencing to appeal both his criminal conviction and sentence.
Const. Khan brought a motion to extend the time to perfect his appeal to the Commission until the conclusion of all criminal litigation relating to the events of January 27, 2011 (both trial and appellate) including all applicable appeal periods.
1This name has been modified to protect privacy
Decision
- The motion is granted for reasons which follow.
Preliminary Matters
Mr. Fraser did not file a factum and brief of authorities as required by paragraph 10.5 of the Commission’s Rules of Practice (the “Rules”) for a party who wishes to respond to a motion. He also did not attend the hearing in person at the scheduled 10 a.m. start-time.
On the instructions of the Panel, Commission staff contacted Mr. Fraser by telephone and tele-conferenced him into the hearing.
Mr. Fraser advised the Panel that he had made an error and entered the wrong date for the Motion into his calendar. He apologized profusely for his error and took full responsibility for it. He also advised the Panel that he has not had an opportunity to review the Appellant’s Motion Record or to prepare for the Motion.
Mr. Butt stated that while it would be his preference to proceed on the merits of the Motion, he did not wish for the Respondent to be disadvantaged and understood that mistakes of this nature can happen.
The Panel directed Mr. Butt to summarize his position on the Motion and then adjourned for twenty minutes to give counsel the opportunity to discuss the Motion in private and Mr. Fraser the opportunity to consider the Respondent’s position and obtain instructions, if necessary.
Pursuant to its authority under paragraphs 3.4 (authority to waive or vary any of the Rules) and 16.1 (authority to hold a written hearing) of the Rules, the Panel directed that the remainder of the hearing would be in writing should the Respondent elect to contest the Motion. Mr. Butt and Mr. Fraser confirmed that they were agreeable to a written hearing.
Applicant’s Submissions
Mr. Butt submitted that the Supreme Court of Canada has stipulated that when both a criminal court and a lower tribunal are dealing with the same facts, the lower tribunal must be bound by the findings of the criminal court once all criminal court appeals have been exhausted – see Toronto v. C.U.P.E. Local 79 2003 SCC 63.
He argued that based on this settled law, the appeal to the Commission should await the final verdict of the criminal court on both conviction and sentence.
Mr. Butt submitted that proceeding with the appeal to the Commission before the final outcome of the criminal litigation, arising from the same incident, would result in one of the following undesirable outcomes:
a) an impermissible collateral attack on the findings of a higher tribunal;
b) the risk of inconsistent verdicts on the same facts;
c) a meaningless appeal;
d) a preemptive undermining of Const. Khan’s criminal appeal rights;
e) a potential waste of public resources through the premature processing by the Commission of this appeal;
f) potentially unnecessary expense and hardship to Const. Khan in perfecting and arguing an appeal that may be rendered moot by subsequent criminal litigation; or
g) the possibility that Const. Khan’s statutory appellate rights before the Commission will be lost without a shot at a remedy, if the criminal courts subsequently vacate his criminal conviction.
Mr. Butt submitted that since both the Hearing Officer and the criminal court dealt with evidence of the same event on the same day from the same complainant, any attack Const. Khan makes on appeal to the Commission will also be an attack on the findings of the criminal court. As a result, anything Const. Khan could argue in his appeal to the Commission would be prohibited as a collateral attack aimed at least, in part, on undermining the findings of the criminal court.
Mr. Butt argued that there is a real risk of inconsistent verdicts if the Commission forces Const. Khan’s appeal to proceed to completion before the criminal litigation is over. On the one hand, if the Commission sets aside the findings of misconduct and the criminal court later affirms the sexual assault conviction, there will be inconsistent verdicts on the same facts. On the other hand, if the Commission affirms the findings of misconduct, and the criminal court subsequently overturns the sexual assault conviction, there will be an entirely different set of inconsistent verdicts on the same facts.
Mr. Butt also argued that if the appeal to the Commission proceeds, while the criminal conviction still stands, the appeal will be meaningless because the fact that Const. Khan has been found guilty of sexual assault will tie the hands of the Commission and oblige the Commission to affirm Const. Khan’s dismissal.
Mr. Butt further argued that if the Commission proceeds to address the same facts that will come under consideration by the higher courts, the Commission will be pre-emptively undermining Const. Khan’s criminal appeal rights. If Const. Khan wins his criminal appeal, he has a legitimate expectation that the Commission, as a lower Tribunal, will act in a manner consistent with the higher court’s treatment of the same case.
Mr. Butt also argued that the Commission should hold the appeal in abeyance because there is a realistic possibility that this appeal may become unnecessary. If Const. Khan’s appeals against his criminal conviction and penalty should fail, an appeal to the Commission would not be warranted as he would stand no chance of retaining his employment with the York Regional Police Service as a convicted sexual offender. Therefore, the Commission should wait and see whether an appeal can serve any useful purpose before incurring the public expense of convening the appeal.
In addition, Mr. Butt argued that Const. Khan should not be forced to incur the financial hardship of funding the appeal when it may turn out to be a complete waste of money should his appeals against his criminal conviction and penalty fail.
Mr. Butt submitted that proceeding with Const. Khan’s appeal to the Commission before the criminal matter is settled also places him at a risk of irretrievably losing appellate remedies that he might later be entitled to. Specifically, if the Commission upheld the decision of the Hearing Officer to dismiss Const. Khan and Const. Khan subsequently won his criminal appeal, the Commission would be powerless to reinstate Const. Khan.
Mr. Butt acknowledged that there are two arguments in favour of disregarding the Supreme Court of Canada’s direction in Toronto v. C.U.P.E. 79, supra, but urged that both arguments should be rejected. The first argument is consistency in application of the Commission’s rules around timelines for perfection of appeals, and the second argument is one of efficiency. However, he argued that consistency must always yield to doing justice on the unique facts of each case, and a job done quickly is never a justification for a job done poorly.
Finally, Mr. Butt informed the Panel that the sentencing hearing has been scheduled for May 12, 2014 and that he has instructions from Const. Kahn to appeal the criminal conviction. He assured the Panel that he intends to proceed expeditiously in perfecting the criminal appeal.
Responding Party’s Submissions
- After a brief adjournment, Mr. Fraser informed the Panel that the Respondent does not oppose the Motion.
Reasons
Given that the Respondent does not oppose the Motion, a written hearing was unnecessary.
Const. Khan’s disciplinary appeal under the Act and his criminal conviction for sexual assault both arise from the same incident. Since Const. Khan’s appellate rights with respect to the criminal proceeding are intact, we agree that his disciplinary appeal should not be heard until after the final determination of the criminal proceeding.
In reaching this decision, we rely on Toronto v. C.U.P.E. 79, supra. In this case, the Supreme Court of Canada stipulated that when criminal courts and a lower tribunal are dealing with the same facts, the criminal proceedings take precedence, and the lower tribunal must await the outcome in the criminal courts. This avoids collateral attacks on the findings of a higher court and inconsistent verdicts on the same facts. As Arbour J. wrote for the majority at paragraph 46:
“A desire to attack a judicial finding is not in itself an improper purpose. The law permits that objective to be pursued through various reviewing mechanisms such as appeals or judicial review. Indeed reviewability is an important aspect of finality. A decision is final and binding on the parties only when all available reviews have been exhausted or abandoned. What is improper is to attempt to impeach a judicial finding by the impermissible route of re- litigation in a different forum.”
As such, we grant the Motion to extend the time for perfecting the disciplinary appeal until the conclusion of the criminal proceeding.
We direct the Moving Party to inform the Commission forthwith when the criminal proceeding has concluded.
DATED AT TORONTO, THIS 2nd DAY OF MAY, 2014
Zahra Dhanani, Jacqueline Castel, Member, OCPC Member, OCPC