Ontario Civilian Police Commission
File: 2015 ONCPC 13
Case Name: Timms-Fryer and Amherstburg Police Service
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, as amended
BETWEEN:
Justin Brodie Timms-Fryer APPELLANT (Moving Party)
-and-
Amherstburg Police Service RESPONDENT (Responding Party)
-and-
Constable Andrew Challans RESPONDENT (Responding Party)
-and-
The Independent Police Review Director INTERVENER
RULING ON MOTION
AMENDED
Panel: Jacqueline Castel, Member Seppo Paivalainen, Member
Hearing: By written submissions
Written Submissions
Mr. Fred W. Tranquilli, Counsel for the Moving Party, Justin Brodie Timms-Fryer Mr. Ian Johnstone, Counsel for the Responding Party, The Amherstburg Police Service Mr. Andrew J. Bradie, Counsel for the Responding Party, Constable Andrew Challans Ms Jean C.H. Iu, Counsel for the Intervener, the Office of the Independent Police Review Director
Introduction
1Mr. Justin Brodie Timms-Fryer ("Mr. Timms-Fryer", the "public complainant" or the "Appellant") is seeking an order that his affidavit, dated November 1, 2014 (the "Affidavit"), be introduced on appeal. The Affidavit relates to the portions of his appeal which allege prosecutorial incompetence and breaches of natural justice and procedural fairness which occurred in the course of the hearing before Deputy Chief (ret.) Terrence Kelly (the "Hearing Officer").
2The Service takes no position on whether the Affidavit should be admitted but if it is admitted, the Service is seeking an opportunity to cross-examine the Appellant.
3The Independent Police Review Director (the "Director") and Constable Andrew Challans ("Const. Challans") oppose the motion because the Affidavit was provided to the other parties to the appeal after they had filed their facta, which they submit is inherently unfair to the process.
4In the alternative, if the Commission grants the motion, the Director and Const. Challans seek an order striking those paragraphs of the Affidavit which contain opinion, legal argument, and raise issues which were not raised in the Appellant's factum. Further, the Director and Const. Challans agree with the Service that the other parties should be allowed to cross-examine the Appellant on the Affidavit.
Decision
5The motion is dismissed for the following reasons.
Reasons
6Mr. Tranquilli submits that the Affidavit qualifies for admission under the four part test set out by the Supreme Court of Canada in Palmer and Palmer v. The Queen 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759.
7Mr. Johnstone submits that the Palmer case, supra, is not applicable as the Affidavit is not fresh evidence. He referred instead to the case law which addresses when affidavit evidence on breaches of natural justice is admissible before reviewing adjudicative bodies: see: 142445 Ontario Ltd. (c.o.b. Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636, 2009 CanLII 24643 (ON SCDC), [2009] O.J. No. 2011 (Div. Ct.) at para 10-12 and 18 and Re Keeprite Workers' Independent Union et al. and Keeprite Products (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (Ont. C.A.).
8The Director and Const. Challans take the position that the Palmer case is applicable, but that the Affidavit does not meet the four part test for admission.
9We agree with Mr. Johnstone that the Affidavit is not fresh or new evidence. Rather, the Affidavit relates to the alleged breaches of natural justice and procedural fairness at the hearing. The leading case on the admissibility on appeal of such affidavit evidence is Re Keeprite Workers' Independent Union et al. and Keeprite Products, supra.
10In Re Keeprite Workers' Independent Union et al. and Keeprite Products, supra, the Ontario Court of Appeal made clear that affidavit evidence to supplement the record should only be admitted in "rare" and "very exceptional" circumstances. Specifically, affidavit evidence can be admitted either to show a complete absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record.
11In this case, the Appellant has not met the onus of showing that the evidence is admissible on the Keeprite test, in particular, that the information contained in the affidavit cannot be proven by reference to the record.
12The alleged breaches of natural justice and procedural fairness, which are addressed in the Affidavit relate to the conduct of the Hearing Officer and the Prosecutor at the hearing. Specifically, the Appellant is alleging that the Hearing Officer failed to allow him to play a meaningful role in the hearing and that the Prosecutor for the Service was incompetent and did not act in the public interest by: (i) failing to effectively cross-examine Const. Challans on his inconsistent statements identified by Justice Fuerth in Mr. Timms-Fryer's criminal trial; (ii) failing to call the supervising officer, Sgt. Viktor Burany, as a witness; and (iii) failing to "take care" of Mr. Timms-Fryer at the hearing.
13The above allegations can be ascertained from a review of the record, in particular the transcripts from the hearing. As such, the Keeprite test for admitting affidavit evidence to supplement the record has not been met.
14Given that the Affidavit is not admissible, the alternative arguments of the Director and Const. Challans, that certain paragraphs of the Affidavit contain opinion, legal argument, and raise a new issue (bias) not included in the Appellant's factum, are moot.
15For the above reasons, the motion is dismissed.
DATED AT TORONTO THIS 15th DAY OF JUNE, 2015
[Original signed by]
Jacqueline Castel Member, OCPC
Seppo Paivalainen Member, OCPC