In the Matter of Daryl Bennett, 2014 ONCPC 2501

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF A HEARING UNDER S. 25 OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED, INTO THE CONDUCT OF DARYL BENNETT, MEMBER OF THE PETERBOROUGH LAKEFIELD POLICE SERVICES BOARD

2014 ONCPC 2501

RULING ON MOTION

Panel: David C. Gavsie, Associate Chair

Zahra Dhanani, Member

Hearing Date: February 10, 2014

Hearing Location: Peterborough, 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:

Richard Taylor, Counsel for Daryl Bennett (Moving Party)

Prabhu Rajan and Melanie Goren, Counsel for the Ontario Civilian

Police Commission (Responding Party)

Background

1. Daryl Bennett is a member of the Peterborough-Lakefield Police Services Board (the “Board”). Mayor Bennett is also the mayor of Peterborough (“Mayor Bennett”).

2. As the result of an investigation undertaken by the Ontario Civilian Police Commission (“the Commission”) under Section 25 (1) of the Police Services Act (the “Act”), Mayor Bennett has been charged with engaging in conduct that discredits and compromises the integrity of the Board or the Peterborough Lakefield Police Service (the “Service”), contrary to sections 2, 4, 5, 6, 8, 9 or 13 of the Members of Police Service Boards - Code of Conduct, Ontario Regulation 421/97 (the “Code of Conduct”), enacted under the Act.

3. On April 16, 2012, the Commission received a letter from a Peterborough resident requesting an investigation into the conduct of Mayor Bennett in relation to his role as a member of the Board.

4. On June 1, 2012 the Commission asked for the Board’s position on whether an investigation was necessary. The Board responded by letter from their Chair dated June 20,

6. On September 4, 2012, at an “in camera” meeting of its Members, the Commission decided on “its own motion” to conduct an investigation.

7. The items mentioned in paragraphs 3 to 5, inclusive, were contained in the materials filed by the Parties.

8. The Notice of Hearing was dated January 31, 2013. It alleges that Mayor Bennett has “engaged in conduct that discredits and compromises the integrity of the Board or the Peterborough-Lakefield Police Service”. The following nine specific allegations of misconduct are listed as follows in the Notice:

a) On receiving a confidential complaint about the conduct of Chief Murray Rodd, he did not keep the matter confidential among members of the Board but shared the complaint with members of Peterborough City Council and a member of Peterborough City staff;

b) On receiving a confidential complaint about the conduct of Chief Murray Rodd, he did not immediately bring the complaint to the Board for action;

c) While negotiating the budget for the Peterborough Lakefield Police Service for 2012, he attempted to negotiate directly with Chief Murray Rodd rather than, as a member of Council, with the Board;

d) He publicly expressed disagreement with a decision by Chief Murray Rodd to hire a civilian to the position of Police Service Communications Coordinator which decision was supported by the Board;

e) He authored and sent a letter to the Minister of Community and Safety and Correctional Services (the “Minister”) advocating that Board Chair Nancy Martin’s term not be extended after the Board had

voted down his motion not to support her term being extended;

f) He authored and sent a letter to the Minister alleging that Board Chair Nancy Martin had committed misconduct while not bringing the allegation to the Board for action;

g) He authored and sent a letter to the Minister alleging unsupported allegations of misconduct against Board Chair Nancy Martin;

h) He publicly condemned the Commission’s investigative process, describing it as a “farce” and “anti-democratic”, and he compared the Commission’s investigative powers to those which existed in “pre-war Germany”; and

i) He refused to be interviewed by the Commission during its investigation of this matter.

8. In its Decision dated December 19, 2013, the Panel granted a Motion by the Commission to amend the Notice of Hearing by adding two additional allegations, namely:

1. On receiving an e-mail from the Board about a confidential meeting, he (Mayor Bennett) shared the e-mail thread with members of City Council (“Allegation 10”); and

2. He (Mayor Bennett) made a number of disparaging and/or disrespectful remarks regarding the Chief, the police, the Board and the Commission (“Allegation 11”).

9. By e-mail letter dated January 28, 2014 (Ex. 30), counsel for the Commission advised counsel for Mayor Bennett that three additional particulars have come to light and will be relied on by the Commission in support of Allegation

10. Counsel for the Commission stated as these are particulars, there was no need to make any changes to the Amended Notice of Hearing. There followed a description of the three particulars.

11. Counsel for Mayor Bennett responded by e-mail letter dated January 29, 2014 (Ex. 30) requesting an explanation as to why these matters were not raised before the hearing started as two of the matters pre-dated the start of the hearing, or why these matters were not referenced as part of a previous Motion heard by the Panel on December 16,

12. Mr. Taylor requested further information, suggesting Charter and jurisdictional issues are all engaged in reference to the three new matters.

13. Mr. Rajan responded by e-mail and courier letter dated January 31, 2014 (Ex. 30) indicating disclosure of the three new matters has been made, they all relate to Allegation

11, and that Mayor Bennett continues to be subject to the Code of Conduct. Further documents were disclosed with the letter including an audio recording.

MOTION

12. By Notice of Motion dated February 5, 2014, counsel for Mayor Bennett requested an Order dealing, in part, with some matters concerning hearing dates all of which were moot by the time of the hearing of the Motion. The substantive portion of the Motion requested:

a) A determination that the three new matters be declared inadmissible in relation to the proceedings against Mayor Bennett; and

b) A declaration that the three new matters be deemed to be unjust, inappropriate, contrary to the rules of natural justice, and an abuse of process. As

such, the three new matters shall not be dealt with by the Panel as part of this hearing.

RULING ON MOTION

13. After reading and hearing counsels’ submissions and after deliberation, the Panel orally dismissed the Motion on February 10, 2014, indicating written reasons would follow. These are the written reasons.

SUBMISSIONS OF MOVING PARTY

14. In his Notice of Motion (paragraph 3), Mr. Taylor summarized the three new matters as follows:

(a) On or about September 26, 2013 Mayor Bennett is alleged to have engaged in disparaging or disrespectful remarks about Police Chief Murray Rodd during the launch of the United Way Campaign, which was a food/charity event.

(b) On or about November 26, 2013 it is alleged that Mayor Bennett engaged in conduct in reference to questions advanced at the subject budget meeting in reference to the police force’s fleet of vehicles and said remarks and questions were advanced by the Mayor pertaining to the City wide budget process, (in consideration of the Police Services Budget), and specifically in reference to increased funds for insurance coverage.

(c) Remarks alleged to have been made by Mayor Bennett to Sun Media on January 14, 2014 in relation to the Police Services Act.

15. Mr. Taylor pointed out that he had expressed concern on several occasions of a “mushrooming of new matters” being raised by the Commission against Mayor Bennett. He pointed out that two of the three new matters pre-dated the December Motion hearing and the start of evidence in the hearing which began on January 6, 2014. As such, this “piling on” offends fairness and principles of natural justice. Witnesses will have to be recalled, otherwise there could be a prejudice to Mayor Bennett.

16. Mr. Taylor submitted that the three new matters were not brought forward contemporaneously and could have been raised before. Regarding the second of the three new allegations, two and possibly three witnesses will have to be recalled.

17. The third of the three new matters allegedly occurred after the first week of evidence having been called in the hearing. Mr. Taylor asked: “When does the investigation stop?” He stated that there would now be a mini-hearing within the hearing.

18. Mr. Taylor said to allow the three additional matters to become part of the hearing would lead to extending the hearing, something which would be fundamentally unfair. He inferred that the three new matters are really allegations and should not be allowed to become part of the hearing.

19. Mr. Taylor stated that new allegations may keep coming up.

He is fearful of asking questions which may raise new issues from testimony. There should be a clear demarcation in the investigation.

20. Mr. Taylor referred to section 25 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 which provides that admissible evidence at a hearing should be “relevant to the subject matter of the proceeding”. These three new

matters did not qualify, and therefore should not be allowed to be introduced now.

21. Mr. Taylor advised that he was adopting the reference materials filed with the Commission on behalf of Mayor Bennett for the Motion heard on December 16, 2013.

SUBMISSIONS OF RESPONDING PARTY

22. Mr. Rajan said the three new matters are not allegations requiring a further amendment to the Notice of Hearing. They are particulars regarding Allegation 11.

23. He stated that the three new matters only came to his knowledge just prior to writing his letter of January 28,

2014 (Ex. 30) to Mr. Taylor.

24. The Commission has provided full disclosure to Mayor

Bennett.

25. Regarding the recalling of witnesses, Mr. Rajan said that Mr.

Taylor was not specific but merely speculating that they might be necessary. The third of the three new matters was an alleged statement made by Mayor Bennett. It was a news article. Why would witnesses have to be recalled for this matter. Similarly, for the other two matters, Mr. Rajan

asked why the necessity to recall witnesses.

26. Mr. Rajan said this hearing concerns the Mayor’s conduct as a member of the Board. The three new matters fall within Allegation 11. The hearing will not get to the Mayor’s case for a month, so no prejudice will be caused. Mr. Taylor will have more than sufficient opportunity to address the case before him.

27. If the Mayor continues to bring policing into dispute, he continues to breach the Code of Conduct. To split the hearing between alleged breaches of the Code of Conduct would be inefficient. No prejudice is ensured by sufficient notice to Mayor Bennett and disclosure of materials.

28. While Mr. Rajan said he did not see the need to recall any witnesses, if that had to be done, it would only briefly expand the hearing.

REASONS FOR RULING

29. Counsel for the Commission takes the position that the three new matters are simply additional particulars in support of Allegation 11, and as such, there is no need to further amend the Amended Notice of Hearing.

30. Counsel for Mayor Bennett takes the position as each of the three new matters post-date the start of proceedings in this matter and two of them occurred before the Motion on December 16, 2013 was heard, the new matters should have been brought forward earlier. He inferred that the three new matters are really allegations and should not be allowed to become part of the hearing.

31. Mr. Rajan in response indicated that the three new matters only came to his knowledge just prior to writing his letter of January 28, 2014 (Ex. 30) and that full disclosure of the three new matters has been made to counsel for Mayor Bennett who will have a lot of time before he presents Mayor Bennett’s case in March or April.

32. The Panel believes that the rationale for the decision for this Motion is quite similar to that for the December 16,

2013 Motion. The issue in the latter was whether or not the Notice of Hearing could be amended.

33. This new evidence will not require any amendment to the Notice of Hearing. These three new instances that will be referred to are not new “allegations” and will be introduced through testimony of the Commission’s witnesses.

34. It was clear from the jurisprudence cited in the December

16, 2013 Decision that a Notice of Hearing could be amended – see Re: Herman Motor Sales Inc., (1980) 29

O.R. (2nd) 431, and Incorporated Synod of the Diocese of

Toronto v. Ontario (Human Rights Commission), [2008] O.J. No. 1692 (Div. Ct.), para. 15.

35. At page 431 of the Re: Herman Motor Sales Inc. decision,

supra, the Divisional Court said:

It would be most unfortunate if the procedural restrictions imposed upon a Tribunal such as this were to be such a narrow nature it could not look into all matters properly coming before it requiring investigation. So long as reasonable notice of the charges which the respondents were facing has been given to them, there can be no basis for arguing that a supplementary notice is invalid.

36. While the above decision referred to a notice, the Panel believes that the rationale equally applies to particulars of an allegation such as the three new matters. The only issue therefore is whether adequate disclosure has been made of the evidence relating to the additional incidents sufficiently in advance to allow the Mayor a reasonable amount of time to review it and prepare responses.

37. There has been full disclosure by the Commission to Mayor Bennett. Mayor Bennett’s case will not commence for at least a month based on the witnesses yet to be called or to be continued by the Commission. There is ample time for Mr. Taylor to meet the case that has been brought.

38. The Panel indicated to Mr. Taylor in rendering its oral decision on the Motion heard February 10, 2014 that if he feels it necessary to recall a witness on account of any of the three new matters, the Panel would be prepared to entertain his reasons for the need to do so.

39. The Panel finds that both disclosure and reasonable notice have been given regarding the three new matters.

40. For these reasons, the Motion was dismissed.

DATED AT TORONTO, THIS 5th DAY OF MARCH , 2014

David C. Gavsie Zahra Dhanani

Associate Chair, OCPC Member