Amherstburg Police Service v. Timms-Fryer, 2015 ONCPC 11

ONTARIO CIVILIAN POLICE COMMISSION

DATE: 2015-04-24

FILE: 2015 ONCPC 11

CASE NAME: Amherstburg Police Service and Timms-Fryer

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

BETWEEN:

Amherstburg Police Service RESPONDENT (Moving Party)

-and-

Justin Brodie Timms-Fryer APPELLANT (Responding Party)

-and-

Constable Andrew Challans RESPONDENT (Responding Party)

-and-

The Independent Police Review Director INTERVENER

RULING ON MOTION

Panel: Jacqueline Castel, Member Seppo Paivalainen, Member

Hearing: By written submissions

Written Submissions

Mr. David Cowling, Counsel for the Moving Party, the Amherstburg Police Service

Mr. Fred W. Tranquilli, Counsel for the Responding Party, Justin Brodie Timms-Fryer

Mr. Andrew J. Bradie, Counsel for the Responding Party, Constable Andrew Challans

Ms Jean C.H. Iu, Counsel for the Intervener

Introduction

1. The Amherstburg Police Service (the “Service”) is seeking:

a) an order striking the portions of the Notice of Appeal (“NOA”) filed by Justin Brodie Timms-Fryer (“Mr. Timms-Fryer”)and the paragraphs of both Mr. Timms-Fryer’s and the Independent Police Review Director’s (the “Director”) factums which allege that the Hearing Officer (i) failed to offer Mr. Timms-Fryer as the public complainant an opportunity to examine witnesses and make submissions and (ii) failed to ensure that Mr. Timms-Fryer was aware of his right to retain counsel and to examine each witness; and

b) an order striking the paragraphs of Mr. Timms-Fryer’s factum which allege that the Prosecutor for the Service was incompetent.

2. The orders are being sought on the ground that neither Mr. Timms-Fryer nor the Director have established a prima facie case with respect to the alleged breaches of natural justice and procedural fairness.

3. Constable Andrew Challans (“Const. Challans”) adopts the Factum of the Service.

4. Mr. Timms-Fryer and the Director contest the motion on the ground that the Commission does not have jurisdiction to strike the impugned paragraphs of the NOA and factums. The Director takes no position on the paragraphs of Mr. Timms-Fryer’s factum which allege prosecutorial incompetence.

5. In the event that the Commission rules that it does have jurisdiction, Mr. Timms-Fryer and the Director take the position that the test is not whether a prima facie case has been established. They urge the Commission to exercise its discretion not to strike the impugned portions of the NOA and factums and to dismiss the motion.

6. The issues before the Panel on this motion are:

i) Does the Commission have jurisdiction to strike portions of the NOA and factums of Mr. Timms-Fryer and the Director?

ii) If the first question is answered in the affirmative, what is the test for striking portions of the NOA and factums, and has the test been met?

Decision

7. The motion is dismissed.

Background

8. On December 21, 2010, Mr. Timms-Fryer was a passenger travelling in a vehicle on a municipal road in Amherstburg, Ontario. Const. Challans stopped the vehicle.

9. As a result of the events that transpired during this roadside stop, Mr. Timms-Fryer was charged with assaulting a police officer and resisting arrest. He was acquitted of these charges.

10. Mr. Timms-Fryer filed a complaint with the Director in relation to the December 21, 2010 incident. Const. Challans was subsequently charged with four counts of misconduct under the Police Services Act R.S.O. 1990, c.P.15, as amended (the “Act”).

11. A disciplinary hearing was conducted into the allegations of misconduct on several dates in 2012 and 2013 before Deputy Chief Terrence Kelly (ret.) (the “Hearing Officer”). Mr. Timms-Fryer was present throughout the disciplinary hearing but was not represented by counsel.

12. The Hearing Officer found Const. Challans not guilty of each of the four counts of misconduct.

13. Mr. Timms-Fryer filed a NOA from the Hearing Officer’s decision.

Reasons

Does the Commission have the authority under the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p15/latest/rso-1990-c-p15.html) to strike portions of a NOA and Factums?

14. Section 87 of the Act sets out the rights of appeal from a disciplinary proceeding, and the process for a police officer or complainant to make such an appeal. The section reads as follows:

87(1) A police officer or complainant, if any, 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 the Commission a written notice stating the grounds on which the appeal is based.

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

(3) The Commission shall hold a hearing upon receiving 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.

(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).

15. Counsel for the Service submitted that striking certain grounds of appeal is consistent with the Commission’s authority under subsection 87(4). He argued that subsection 87(3) provides that a complainant has no right of appeal with respect to grounds other than those related to whether the misconduct was proved on clear and convincing evidence. Further, he said that subsection 87(4) contemplates that the Commission will exercise its discretion to decline to hold a hearing with respect to all or part of an appeal not covered under section 87(3).

16. We disagree that subsection 87(4) affords the Commission such discretion, in the circumstances of this case, based on a plain language reading of section 87 of the Act.

17. Where a complainant appeals a decision to the Commission pursuant to subsection 87(1), subsection 87(3) makes clear that the Commission must hold a hearing, provided that the appeal is from a finding that misconduct or unsatisfactory work performance was not proved on clear and convincing evidence. The use of the word “shall” in subsection 87(3) affords no discretion to the Commission.

18. Subsection 87(4) affords the Commission the discretion to decline to hold a hearing, where the Commission “considers it appropriate”. However, subsection (4) applies only to a decision that is not covered by subsection 87(3). Most commonly, this section will be used in relation to appeals of decisions relating to penalty where the statute does not grant an automatic right to a hearing.

19. Read as a whole, the statutory scheme is clear: a complainant has an automatic right to a hearing on “a finding that misconduct or unsatisfactory work performance was not proved on clear and convincing evidence” but not an automatic right to a hearing solely on penalty. While the Commission retains the limited jurisdiction to ensure that any pleadings in respect of matters under both 87(3) and (4) do not contain any irrelevant or frivolous matters, it does not have the jurisdiction to impose a prima facie test to screen out matters that are clearly connected to the central issue under 87(3).

20. Mr. Timms-Fryer, a public complainant, is appealing a finding that misconduct was not proved, in part, on the ground that procedural errors and prosecutorial incompetence resulted in a denial of natural justice. These pleadings clearly falls within the parameters of subsection 87(3) since a finding that misconduct was not proved may not stand if natural justice and procedural fairness were denied.

Does the Commission have the authority under the Statutory Powers Procedures Act, [R.S.O. 1990, c. S-22](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s22/latest/rso-1990-c-s22.html) (the “SPPA”) and the Rules to Strike Portions of a Notice of Appeal and Factums?

21. Counsel for the Service submitted that section 25.0.1 of the SPPA, which gives the Commission the power to control its own procedures and the Rules, also permit the Commission to strike portions of the NOA and factums. He highlighted the following Rules:

3.2 The Commission may issue general or specific procedural or practice directions at any time.

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

4.1 The Rules and procedures of the Commission shall be liberally and purposively interpreted and applied to:

(a) promote the fair, just and expeditious resolution of every proceeding on its merits;

(c) ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.

[emphasis added]

22. We disagree with Mr. Cowling’s submission. The generic provision in the SPPA permitting a tribunal to determine its own procedure, and the Rules cannot and do not abrogate or limit a right that is provided by statute, namely a complainant’s right of appeal under subsection 87(3) of the Act.

23. Given that the Commission had determined that there is no basis to strike the impugned portions of the NOA and factums in this case, the second issue identified in paragraph 6 above is moot.

24. The motion is dismissed.

DATED AT TORONTO THIS 24th DAY OF APRIL, 2015

[Original signed by]

Jacqueline Castel Member, OCPC

Seppo Paivalainen Member, OCPC