Bennett (Re), 2015 ONCPC 10

ONTARIO CIVILIAN POLICE COMMISSION

DATE: 2015-04-22

FILE: 2015 ONCPC 10

CASE NAME: Bennett (Re)

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 MAYOR daryl bennett, member of the peterborough lakefield police services board

DECISION

Panel

David C. Gavsie, Associate Chair Zahra Dhanani, Member

Submissions:

Last of Written Penalty Submissions Received: February 20, 2015

Appearances

Richard Taylor, Counsel for Daryl Bennett Prabhu Rajan, Brian G. Whitehead and Hera Evans, Counsel for the Ontario Civilian Police Commission

Introduction

1This is a decision with respect to penalty issued pursuant to s. 25 (5) of the Police Services Act, R.S.O 1990, c. P. 15, as amended (the "Act"), following an inquiry pursuant to s. 25 (1) of the Act, into the conduct and performance of duties of Mayor Daryl Bennett, as a member of the Peterborough Lakefield Police Services Board (the "Board").

Decision on Penalty

2For the reasons set out herein, pursuant to s. 25 (5) of the Act, we order that Mayor Daryl Bennett be removed from the Board.

Background

3Daryl Bennett was a member of the Board overseeing the Peterborough Lakefield Police Service (the "Service"). Mr. Bennett is also the mayor of Peterborough ("Mayor Bennett" or the "Mayor").

4As per section 25 (1) (a) of the Act, on September 4, 2012, at an in camera meeting of its members, the Commission decided on its own motion to investigate the conduct of Mayor Bennett as a member of the Board. As a result of its investigation, the Commission decided to hold a hearing into his conduct.

5The background facts, the allegations, the evidence and the findings resulting from the hearing into the conduct of Mayor Bennett are set out in the Decision in the Matter of a Hearing under s. 25 of the Police Services Act into the conduct of Mayor Daryl Bennett, member of the Peterborough Lakefield Police Services Board, (December 29, 2014, OCPC) ("Bennett Conduct Decision").

6In the Bennett Conduct Decision, supra, the Panel found Mayor Bennett guilty of all 11 specific allegations of misconduct, thereby finding that he engaged in conduct which discredited and compromised the integrity of the Board or the Service, contrary to Sections 2, 5, 6, 8, and/or 13 of the Members of Police Service Boards - Code of Conduct, O. Reg. 421/97 (the "Code of Conduct"), enacted under the Act.

7In the Bennett Conduct Decision, supra, the Panel ordered the parties to provide written submissions on penalty.

Issues

8The issues to be decided in this decision are as follows:

1. Does the Commission have jurisdiction to issue a penalty?

2. If so, what is the appropriate penalty based on relevant sentencing factors?

Reasons and Analysis

Jurisdictional Question:

9Counsel for Mayor Bennett informed the Panel in his written submission on penalty that the Board was disbanded on December 31, 2014 and that Peterborough now has a police services board separate from Lakefield called the Peterborough Police Services Board (the "PPSB"). The PPSB now oversees the Peterborough Police Service ("PPS").

10Counsel for Mayor Bennett also advised the Panel that Mayor Bennett is not a member of the PPSB and because of this, counsel argued that the Commission no longer has the jurisdiction to impose a penalty of removal, in that the Mayor is not currently a member of a police services board.

11We do not agree with this submission.

12The Commission has an obligation to do what is just in the matters that come before us. In reference to Commission Powers, section 3.5 of the Commission Rules of Practice (the "Rules") states:

Where matters are not covered by these Rules, the practice will be decided by the Commission as the Commission considers just.

13We find that it would not be just to consider evidence that is being relied on by a party in its submissions that the other party did not have a chance to examine and respond to with their own evidence.

14The Panel is tasked with deciding a penalty based on the hearing into the conduct of Mayor Daryl Bennett that occurred from March 5, 2013 to May 16, 2014 while Mayor Bennett was a member of the Board

15To ascertain penalty, the Panel can only rely on evidence that was put on the record during the period of the hearing into this matter.

16The Panel held a full hearing with over 23 days of evidence, 14 witnesses, video and audio recordings and hundreds of pages of disclosure material. The Panel prepared and released the Bennett Conduct Decision, supra, and we are fully equipped to make a decision on penalty based on the evidence that was properly put before us.

17At the point that a decision on the conduct of Mayor Bennett was released, December 29, 2014, he was still a member of the Board.

18This Panel cannot address any new evidence that was submitted as part of the penalty submissions as this would amount to a breach of natural justice and procedural fairness.

19Counsel included as part of his submissions a printed page from the PPS website listing current members of the PPSB. This was provided to suggest Mayor Bennett is not a member of the PPSB. This information also is not evidence on the record and we cannot make any findings based on this information, nor can we use it in arriving at our Decision.

20Indeed we have no way of integrating this information fully into this Decision, as it has not been wholly examined. The Commission's counsel has not had the opportunity to test the information or to bring its own evidence in response to this information.

21There is nothing before us that would allow us to use this information in a just and fair manner.

22This penalty decision therefore can only address the conduct of Mayor Bennett while he was still on the Board, and apply a corresponding penalty. It is very important to note here, that even if the Mayor is not on the PPSB currently, pursuant to Part III of the Act, the Mayor, as head of a municipal council, is entitled by law to choose to be a member of the police services board in his or her municipality.

23A further point we make on this issue was raised by Counsel for Mayor Bennett, who engaged in argumentation about the word "remove" in subsection 25(5) of the Act stating that if the PPSB no longer exists, he cannot be "removed" from it. This is a very literal and narrow approach to the wording in the Act.

24As per the Legislation Act, 2006, S.O.2006, c.21, sch. F, the Panel takes a more liberal and purposeful approach in deciding this issue and imposing a penalty based on Mayor Bennett's conduct. Section 64 (1) of the Legislation Act states that:

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects. (emphasis added)

25The legislative purpose of the Act is found in its Declaration of Principles in s. 1, which provides that:

Police services shall be provided throughout Ontario in accordance with the following principles:

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

26The Ontario Court of Appeal held in Browne v. Ontario Civilian Commission on Police Services 2001 CanLII 3051 (ON CA), [2001] O.J. No. 4573 that the legislative purpose of the Act is to "increase public confidence in the provision of police services."

27While the Mayor may or may not be sitting on the current police services board in Peterborough, as the head of a municipal council he is entitled to do so if he chooses. Also, while the new board is called something different it still serves the same very important purpose: to act as the civilian governance body of the police service in Peterborough.

28In our role of providing civilian oversight of policing in the Province, the Commission must maintain the public confidence in the provision of police services.

29To that end we find that it is incumbent on us to impose a penalty, after we have held a year long, 23 day inquiry into the conduct of Mayor Bennett. The public has an interest in a resolution in this case, particularly because of the importance of this matter, and also because of the lengthy hearing, the immense public resources invested and the Mayor's conduct which was found to be quite unsatisfactory.

30In Ontario, police services and police service boards (and its members) are ultimately accountable to the public through the Commission. The imposition of a penalty in this case is not solely a punitive act but an obligation of the Commission to protect the public interest.

31It is a power that allows the Commission to prevent further harm after a member of a police services board has been found guilty of misconduct. To thwart this power would be to paralyze the Commission from realizing its role to ensure policing is conducted in communities in a safe and appropriate manner. Appropriate oversight by police services civilian boards is a critical element in ensuring that takes place.

32To be able to respond to and curtail the inappropriate conduct of a board member is critical to the Commission's role as an oversight body. It will also ensure a high standard of policing and police oversight in Ontario.

33A member of the board must conduct him or herself in a "satisfactory manner". If he or she does not, that person must not be allowed to continue without consequence.

34The public requires a resolution based on this Panel's finding that Mayor Bennett behaved in ways that discredit the Service and the Board.

35Section 25.5 of the Act states that:

If the Commission concludes, after a hearing, that a member of a board is guilty of misconduct or is not performing or is incapable of performing the duties of his or her position in a satisfactory manner, it may remove or suspend the member.

36Our penalty decision is based on the evidence that was before us during the hearing, which concluded in a finding that while on the Board, Mayor Bennett committed serious misconduct.

37There is nothing in the legislation that states that the Commission cannot make a penalty finding after a finding of misconduct, if during the time between the conduct decision and the penalty decision there has been a change of status of the subject board member. In this regard, we note s. 90 of the Act which deals with police officers who resign or retire before a complaint against them is finally disposed of. No further action can be taken, unless such person becomes a member again of a police service within five years, in which case, the complaints process resumes. There is no such limiting provision for members of police service boards.

38We agree with Commission counsel's submission that to interpret the legislation in a way that would allow the Mayor to avoid sanction would likely have the effect of decreasing public confidence in policing.

39We also agree with Commission counsel's submission that the legislative provisions must be interpreted within the practical context of the matter.

40The context of this matter is that there are constant changes of membership in police service boards due to individual members' choices, municipal and provincial elections and long-term political negotiations. Within that context, if the Commission was unable to render a decision every time there was a political shift, the Commission would be rendered powerless in many instances.

41From the investigation stage to the release of the Bennett Conduct Decision, supra, there has been a lapse of close to three years. There are bound to be changes as a result of the lengthy time it has taken to move through this process, including the lengthy year-long hearing.

42If we were to apply a narrow interpretation in this matter, any investigation of a police services board member a year or two prior to an election, could be thwarted at the final stages if there was a change in status during that time. We find that that would be completely contrary to the public interest goals of the Act.

43Counsel for Mayor Bennett relies on Donald MacNeil, Member of the Barrie Police Services Board, (February 10, 2012, OCPC), where it was held that the Commission lacked jurisdiction to continue a hearing into a board member's conduct under s.25(1) because the board member ceased to be a member of the board.

44There are significant distinctions between the two cases, including:

a) In MacNeil, supra, the hearing of evidence never even began. In this case there have been 23 hearing days, closing submissions received in writing and a decision on conduct already issued.

b) In MacNeil, supra, the hearing was delayed by one month with the knowledge that Donald MacNiel would cease to be a board member. In the case before us it is still not evidence properly before us that Mayor Bennett is no longer a member of the Board.

c) In MacNeil, supra, there was a motion brought and heard on the issue of jurisdiction. No such motion was brought or heard in this case.

d) In MacNeil, supra, there was no finding as to the conduct of the board member. In the case before us, a lengthy 75 page decision on the Mayor's conduct was released in December, 2014 when he was a member of the Board: see Bennett Conduct Decision, supra.

e) In MacNeil, supra, once Donald MacNeil ceased to be a board member, he was not in a position where he had the legislated right to sit on the police services board if he wanted to. In the case before us, even if Mayor Bennett is not on the current police services board, as Mayor he could choose to do so (but for this pending decision). This right would be extended for as long as he continued to be the Mayor of Peterborough.

45Police services boards in Ontario are the cornerstone for civilian oversight of policing, ensuring police are accountable to the public and to the communities they serve. Members of these boards must also be accountable to the public and it is incumbent on the Commission to make decisions that uphold the primacy of this accountability. This indeed is the whole purpose behind s. 25 as it relates to police service board members.

46Reviewing the conduct of a board member is critical to the Commission's role as an oversight body and in ensuring a high standard of policing and police oversight in Ontario.

47It is clear that when interpreting provisions of the Act, the courts have placed significant weight on the legislation's public interest goals and the importance of increasing public confidence in policing: see Peel (Regional Municipality) Police v. Ontario (Director, Special Investigation Unit) 2012 ONCA 292, [2012] OJ No. 2008 (CA) and Wood v. Schaeffer, 2013 SCC 71.

48The Commission's jurisdiction under s. 25 must include the ability to impose a penalty where there has been a full inquiry and hearing on conduct resulting in a disposition of guilt. Frustrating the authority to do so would impede the public interest purpose of the Act and undermine the public's confidence in policing.

49A member of a police services board must conduct him or herself in a "satisfactory manner". If he or she does not, consequences must arise. It is with this emphasis that we make our decision on the question of jurisdiction.

50We find that the Commission continues to have jurisdiction to complete the s. 25 proceeding in this case and therefore to impose a penalty on Mayor Bennett based on our finding that he is guilty of 11 specific counts of misconduct while sitting on the Board.

Application of Sentencing Factors

51Counsel for the Commission submitted that removal from the Board was the appropriate penalty in this case.

52Counsel for the Mayor argued that Mayor Bennett has been required to be off the Board since September 17, 2012 by virtue of subsection 14(1) of the Code of Conduct. He asserted that this suspension and the resulting consequences represents a more than sufficient penalty and that no other penalty should be imposed.

53The Inquiry into the Conduct and Performance of Duties of Norman Gardner of the Toronto Police Services Board (March 1, 2004, OCCPS, hereinafter "Gardner"), provides guidance as the factors that are relevant to an assessment of the appropriate disposition under ss. 25 (5) of the Act were considered. They are: public interest, seriousness of the misconduct, damage to the reputation of the Board and the Service, recognition of seriousness of misconduct, ability to reform or rehabilitate, general deterrence, employment history and personal circumstances.

54Our decision on penalty is primarily based in the indisputable importance of the need for police service board members to behave in a manner that increases or at a minimum maintains public confidence in policing. The role of police service board members cannot be understated. There is a very high public interest element in this penalty decision.

55In his June 2012 post-G20 report ("Morden Report"), Justice Morden succinctly describes the importance of the role of police services boards and civilian oversight of police. He states:

Civilian oversight of our police is essential. It acts as a check and balance against the legal powers society has given the police to enforce the law. Effective oversight of the police is the way that the public and police remain partners in the preservation of public safety. For the police to be effective in our communities, the public must have respect for those that perform the policing function. The governance and accountability that civilian oversight creates work in tandem...Therefore, effective fulfillment of the governance role that police boards play ensures that decisions made and actions taken by police are reflective of the community's values.

56The Morden Report prescribes a new era in policing that underscores the ever critical role that police service boards play in policing. The members of these boards must be worthy and fitting of such an important and necessary position.

57The Panel has in detail examined the behaviour of Mayor Bennett in the Bennett Conduct Decision, supra. For that reason we will not review all of the facts, allegations and findings in this decision.

58Based on that conduct and a review of all the Commission cases into the conduct of police services board member conduct, we find the conduct demonstrated in this case to be completely unacceptable and unsatisfactory: see: "Gardner", supra; A Hearing Under Section 25 of the Police Services Act into the Conduct and Performance of Duties of the Members of the Wallaceburg Police Services Board (June 19, 1996, OCCPS, hereinafter "Wallaceburg"); Ontario Civilian Commission on Police Services and Arnold Minors (December 19, 1994, OCCPS,hereinafter "Minors"); and Matter of an Inquiry under s. 25 (1) of the Act Into the Conduct and Performace of Duties of Greg Oliver, A Member of the Stirling-Rawdon Police Services Board (October 7, 2014, OCPC, hereinafter "Oliver").

59As per the Bennett Conduct Decision, supra, this Panel has found that Mayor Bennett's behaviour while on the Board was plain and simply, unsatisfactory. His conduct undermined the confidence of his colleagues, delegitimized those he governed in the Service and caused concern to the community he was responsible to. His actions quite specifically diminished the public's confidence in the Board, the Service and in this case most notably the Chief.

60Mayor Bennett does not seem to agree to or feel the need to abide by his responsibilities and obligations as a Board member. Mayor Bennett testified and demonstrated a belief that he should be able to say whatever he wants, whenever he wants and to whomever he wants.

61The issues with Mayor Bennett's conduct on the Board were chronic and pervasive. The Mayor's conduct was so extreme and so far off any range of acceptable member conduct that we find he has exhausted the possibility of ever being an effective member of the Board.

62Mayor Bennett's reprehensible behaviour was evidenced in many ways, including:

a) threatening other Board members;

b) not voicing his concerns at Board meetings, in some instances even voting in favor of actions that he would later publicly criticize the Chief or the Board for undertaking;

c) voicing his concerns about Board matters to the media before addressing them responsibly with the Board;

d) making allegations against the Chair of the Board that were completely unsubstantiated by factual evidence;

e) making false statements to the Minister of Community Safety and Correctional Services;

f) making public declarations about the Chief's and the Service's negative intentions and acts to "spin" statistics on crime;

g) continually going behind the interests of his colleagues on the Board;

h) expressing opinions to the public and media on policing issues without expressly stating that he was voicing his own "personal opinion"; and

i) expressing himself in a manner that was aggressive, confrontational, attacking and offensive.

63Mayor Bennett's offensive behaviour was acute, unabating and consistent. The conduct before us is of the most serious nature.

64Mayor Bennett's comments in public directly undermined the Board. To consciously sabotage the efforts of the Board in public is contrary to any conduct expected of Board members particularly the conduct obligations explicitly articulated in the Code of Conduct.

65We found his behaviour to demonstrate a blatant disregard for the effective and efficient governance of policing and a complete lack of respect for his colleagues on the Board. His conduct was counter-productive to the goals of the Board, the Code of Conduct and the Act.

66The duties and responsibilities of police service boards which oversee municipal or police services are clearly articulated in the Act. Section 31 (1) states:

A board is responsible for the provision of adequate and effective police services in the municipality and shall,

(a) appoint the members of the municipal police force;

(b) generally determine, after consultation with the chief of police, objectives and priorities with respect to police services in the municipality;

(c) establish policies for the effective management of the police force;

(d) recruit and appoint the chief of police and any deputy chief of police, and annually determine their remuneration and working conditions, taking their submissions into account;

(e) direct the chief of police and monitor his or her performance;

(f) establish policies respecting the disclosure by chiefs of police of personal information about individuals;

(g) receive regular reports from the chief of police on disclosures and decisions made under section 49 (secondary activities);

(h) establish guidelines with respect to the indemnification of members of the police force for legal costs under section 50;

(i) establish guidelines for dealing with complaints under Part V, subject to subsection (1.1);

(j) review the chief of police's administration of the complaints system under Part V and receive regular reports from the chief of police on his or her administration of the complaints system.

67Based on all of the examples of disrespectful conduct that are evidenced in the record and in our findings, we do not believe that Mayor Bennett would ever be able to fulfill the mandate of a Board member, in particular as long as he continued to be the Mayor of Peterborough.

68Mr. Camille Parent, the community member who originally complained to the Commission about Mayor Bennett's conduct, stated several times in his testimony that the Service was under constant attack by the Mayor.

69In reference to the media articles that had been disclosed into evidence at the hearing, Mr. Parent stated:

The Police Chief couldn't say anything without the Mayor casting a shadow of a doubt on everything that he said. The Mayor's office was continuously attacking the Chair. Again these comments should have been done behind closed doors, closed session, because that's when you can talk with lots of emotion. We all have said something emotionally but it should not get out to the public. People were coming into my store saying can you believe this? I recently read an article, and the negativity is still happening.

70We cannot allow similar consequences again: as a result of Mayor Bennett's conduct there was damage to the Service, to Service staff, to other Board members and to the community as a whole. This is intolerable and cannot be allowed. The penalty in this case must address specific deterrence in that Mayor Bennett should not be allowed to conduct himself in this way as a member of the Board. The penalty must also address general deterrence, this kind of conduct cannot be accepted from any police services board member, and that should be clear as a result of this decision on penalty.

71Furthermore, Mayor Bennett has not expressed any remorse about his conduct. At the hearing he was asked specifically if he was apologetic about any of his behavior. He said no. We are convinced that should Mayor Bennett be allowed to be on a police services board again, nothing would change. His conduct would be based on his strongly held belief that, as a Mayor, he can do and say whatever he wants wherever he wants.

72It was this Panel's finding that Mayor Bennett had a serious misunderstanding of the Act and of the role of police service board members. In the Bennett Conduct Decision, supra, we found Mayor Bennett's behaviour to escalate conflicts both within the Board and in the community, to sabotage efforts of the Service and the Board and to create upset with various stakeholders.

73His conduct was deliberate, conscious and unrepentant. There is no remedial measure for this kind of conduct. If someone does not see a problem with his behaviour he is not at all likely to change that behaviour. There is no evidence before us that would suggest Mayor Bennett is willing to alter his behaviour.

74Mayor Bennett's conduct was far below the standard of appropriate conduct and there is an absence of mitigating factors to provide any reason to allow him to ever serve on the Board or any other police services board again.

75Counsel for Mayor Bennett submitted that everything the Mayor did was in order to fulfill his role as a mayor. While we do find that the Mayor takes his role as a mayor very seriously, this does not provide any acceptable explanation to his ceaseless undignified attacks of the Board, the Service and the Chief.

76Furthermore, it is not the Mayor's intent that is at issue but his conduct, which frankly put is inexcusable.

77As a voice coming from the public, Mr. Parent stated what he thought were the appropriate measures in this situation quite succinctly in his testimony:

With the negativity out there I think the best thing would have been for him to remove himself at the early stages or to be removed from the Board.

78We agree. For the reasons expressed herein, the Panel is of the view that the only appropriate penalty is removal.

Decision on Penalty

79Accordingly, pursuant to s. 25 (5) of the Act, we order that Mayor Daryl Bennett is removed from the Board.

DATED AT TORONTO THIS 22nd DAY OF April, 2015

[Original signed by]

David C. Gavsie Associate Chair, OCPC

Zahra Dhanani Member, OCPC