Wilson and Toronto Police Service, 2015 ONCPC 14

ONTARIO CIVILIAN POLICE COMMISSION

DATE: 2015-08-17

FILE: 2015 ONCPC 14

CASE NAME: Wilson and Toronto Police Service

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

BETWEEN:

Constable Dawn Wilson APPELLANT (Moving Party)

-and-

Toronto Police Service RESPONDENT (Respondent Party)

-and-

Tamara Baptiste PUBLIC COMPLAINANT

DECISION

Panel: Roy Conacher, Q.C. Vice Chair D. Stephen Jovanovic, Member

Hearing Date: July 23, 2015

Hearing Location: Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3

Appearances: Joanne E. Mulcahy, Counsel for the Appellant Michael Martosh, Counsel for the Respondent Miriam Saksznajder, Counsel for the Independent Police Review Director

Introduction:

1. Constable Dawn Wilson (the “Appellant”), a police officer with the Toronto Police Service (the “Service” or the “TPS”) was found guilty of unlawful or unnecessary exercise of authority in that the use of force she levelled against a civilian was unnecessary, contrary to s. 2(1)(g)(ii) of the Code of Conduct (the “Code”) set out in what is now Ontario Regulation 268/10, as amended, and therefore contrary to s. 80(1) of the Police Services Act, R.S.O. 1990, c.P.15, as amended (the “Act”).

2. The hearing of two charges against the Appellant, one of which was dismissed, took place before Superintendent Robin D. McElary-Downer (the “Hearing Officer”) over five days in April and May, 2013 with the decision as to the finding of guilt released on June 7, 2013. The decision on penalty was released, after further submissions were made, on September 23, 2013. The Hearing Officer imposed a penalty of the forfeiture of five days off.

3. The Appellant’s Notice of Appeal set out 40 specific Grounds of Appeal with respect to the finding of misconduct and 9 specific Grounds of Appeal with respect to the imposition of the penalty.

4. On July 23, 2015, the Panel heard a Motion brought by the Appellant with respect to the factum delivered by the Independent Police Review Director (the “OIPRD”). The Appellant requested the following Order:

i) An Order that when the OIPRD amends paragraph 34 of their factum that paragraphs 21 to 33 (pages 8 to 13) of their factum be struck out.

ii) An Order that if paragraphs 21 to 33 (pages 8 to 13) of the OIPRD’s factum are not struck out, that the Appellant be permitted to have an opportunity to file a reply factum to paragraphs 21 to 33 of the OIPRD’s factum.

iii) An Order that if paragraphs 21 to 33 (pages 8 to 13) of the OIPRD’s factum are not struck out that the Appellant have an opportunity to make oral submissions in response to the issues raised by OIPRD’s factum.

5. The Appellant raised eleven specific grounds for her Motion, in essence, arguing that the OIPRD, as a statutory intervener in this Appeal, pursuant to section 87(7) of the Police Services Act has overstepped the permissible boundaries of that role by making submissions that are not responsive to the issues raised by the Appellant; that are not based on the Record and are hypothetical and hyperbolic; that are procedurally unfair; that invite the Commission to deal with policy considerations; that amount to a cross-appeal; and, that seek to limit police officers’ rights at hearings.

Ruling:

6. For the reasons that follow, we order that:

i) Paragraph 27 of the OIPRD’s factum be struck, but theremainder of the Appellant’s motion requests are dismissed.

ii) The hearing of the full disciplinary Appeal shall take place on Tuesday, October 21, 2015 commencing at 10:00 a.m.

Background:

7. The Appellant’s evidence on this motion was an Affidavit from a legal assistant to her counsel attaching a number of letters that were exchanged by the parties, some of which dealt with the propriety of the OIPRD’s factum. Counsel for the OIPRD acknowledged that the order sought in paragraph 34 of its factum (limiting the scope of the Appellant’s cross-examination should a new hearing be ordered) was beyond the authority of the Commission to grant. Counsel for the OIPRD delivered an amended factum striking out parts of paragraph 22, all of paragraphs 30 to 33 and part of paragraph 34 so that it now reads: “The Director takes no position with respect to the orders sought.” Counsel for the OIPRD submitted that there was now no basis for the Commission to strike out any other paragraphs of the factum.

8. Counsel for the Respondent made no submissions at the hearing of the motion, having earlier written to the Commission advising that he had “no reason to object to the position taken by [the OIPRD].”

Reasons:

9. This is the second motion that the Panel has dealt with concerning one of the parties’ factums. In a decision dated February 23, 2015, the Commission ordered that the Appellant deliver a factum no longer than 50 pages in place of her original factum of 134 pages.

10. There is no specific provision in the Commission’s rules or practice directions that deal with the striking of parts of a factum. Nevertheless, we accept that the Commission has the authority to do so pursuant to its power to control its own procedures, pursuant to the Statutory Powers Procedure Act, R.S.O. 1990, c.S22 (SPPA).

11. In Amherstburg Police Services and Timms-Fryer, 2015 ONCPC 11 a different panel of the Commission dealt with a motion seeking an Order striking portions of a Notice of Appeal and portions of the factums of two of the parties. The parties responding to the motion took the position that the Commission did not have the “jurisdiction” to strike portions of the Notice of Appeal and the factums.

12. The Commission in the Amherstburg case dismissed the motion writing that:

The generic provision of 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.

Given that the Commission has determined that there is no basis to strike the impugned paragraphs of the Notice of Appeal and factum in this case, the second issue [identified in paragraph 6 above] is moot.

That second issue was stated to be as follows:

If the first question [jurisdiction of the Commission to strike portions of the Notice of Appeal and factum] is answered in the affirmative, what is the test for striking portions of the Notice of Appeal and factums, and has the test been met?

13. Our reading of that decision is that once the Commission decided that it had no jurisdiction to strike the Notice of Appeal, there was “no basis” to strike the corresponding portions of the factums. This decision should not be read as implying that the Commission does not have the authority or jurisdiction to strike portions of a factum in appropriate circumstances, pursuant to its right to control its process under the SPPA.

14. Without trying to draw a bright-line as to when portions of a factum will be struck, there are circumstances when, in our view, it may be appropriate to do so. Every case must be considered on its own merits but such circumstances could include an unduly prolix factum, one that raises obviously irrelevant issues, one that deals with evidence that was clearly not before the hearing officer, including an indirect attempt to raise fresh evidence, or one that is clearly vexatious, egregious, scurrilous or otherwise inappropriately prejudicial towards an opposing party.

15. Paragraphs 21 through 34 of the OIPRD’s factum are attached as Schedule A to this decision. In our view, all paragraphs, except paragraph 27, are not so obviously irrelevant or inappropriately prejudicial so as to justify being struck out. These paragraphs do nothing more than provide some background commentary about the public complaints process under Part V of the Act, the credibility of witnesses, the genesis and purpose of Part V, and the burden of proof before a hearing officer. We see nothing so offensive in these paragraphs that would prejudice the Appellant at the hearing of the Appeal. The Panel hearing the Appeal will be more than capable of separating any leftover wheat from the chaff, i.e. what is relevant and useful from that what is not.

16. We do find that paragraph 27 should be struck as it appears to be an extension of the final sentence in paragraph 26, which counsel for the OIPRD agreed to be struck out, as not being within the mandate of the OIPRD to request as a statutory intervener under section 87 (7) of the Act.

17. At the conclusion of the argument of the motion, the parties present agreed to have the Appeal heard on October 21, 2015.

Order:

The Panel therefore Orders the following:

i) Paragraph 27 of the OIPRD’s factum be struck but the remainder of the Appellant’s motion requests are hereby dismissed.

ii) The hearing of the full disciplinary Appeal shall take place on Tuesday, October 21, 2015 commencing at 10:00 a.m.

DATED AT TORONTO THIS 17^th^ DAY OF AUGUST, 2015

[Original signed by]

Roy Conacher, Q.C. Vice Chair D. Stephen Jovanovic, Member

Schedule A

21. Public complaints under Part V of the PSA centre on the conduct of a police officer. The sections of the PSA creating the legislative framework for public complaints confirm that it is the conduct of the officer that is the focus of the inquiry. Where there are reasonable grounds to believe that the officer has been engaged in misconduct, the legislation requires a hearing into the matter. Stated differently, the focus of a hearing under Part V of the PSA is whether the conduct complained has been proven to the requisite standard and whether it constitutes misconduct by the officer as defined by the Code of Conduct.

Police Services Act R.S.O. 1990 c. P. 15 ss. 58(1), 61(5), 66(1) and (3), 67(1) and 68(1), (4) and (5)

22. While the Director accepts that the credibility of all witnesses must be assessed and considered by a Hearing Officer in determining whether there is “clear and convincing” evidence of misconduct, the criminal or other antecedents of a witness are but one factor for the Hearing Officer to consider. As a result, the hearing should not be permitted to turn into a disproportionate examination of, and aggressive attack on, the background of either the complainant or witnesses. It is submitted that to permit such an examination is an affront to the public complaints system and contrary to the legislative intent of Part V of the PSA and would create a chilling effect on the complainant and witnesses going forward.

23. As noted above, a good portion of the cross-examination of Ms. Baptiste and the majority of the cross-examination of Mr. ____ centred on their prior involvement with police and the criminal justice system. With respect to Mr. ___ in particular, the cross-examination included questions about infractions under the Highway Traffic Act, discreditable conduct committed when he was a youth,

Factum of the Director

his tattoos and appearances in rap videos. Although the Hearing Officer permitted the extensive cross-examination by counsel for the Appellant, she correctly and commendably did not ultimately permit it to shift the focus away from the issues before her for determination. It is submitted that, in that regard, her judgment is properly in keeping with the spirit and intent of the new Part V of the PSA.

24. The new Part V of the PSA was enacted in 2009, after retired Chief Justice Patrick LeSage was retained to review the provincial system dealing with public complaints regarding the police. The LeSage Report, completed in April 2005, became the genesis for the current public complaints system which came into existence on October 19^th^, 2009.

Report on the Police Complaints system in Ontario, the Hon. Patrick J. LeSage, Q.C., April 22, 2005 [hereinafter “LeSage Report”]

25. The new Part V was designed to promote accountability as well as public confidence in police and policing. It was also intended to make the public complaints system more accessible in many ways, including offering greater accessibility to a greater class of complainants. For example, the old regime did not allow for third party complainants, whereas the enactment of subsection 60(6) of the PSA allows for, inter alia, a person who saw or heard the conduct or its effects as a result of being physically present at the time, to make a complaint.

Police Services Act R.S.O. 1990 c. P. 15 s. 60(6)

Factum of the Director

26. In further consideration of making the public complaints system more accessible, Justice LeSage reviewed the difficulties faced by complainants in making a public complaint, as the pre-2009 system required a complainant to attend at a police station to make a complaint. Justice LeSage noted that:

There is an understandable reluctance to file complaints regarding those in authority by going directly to the authority. This is especially true if the perception is that the filing of a public complaint with the police will turn into an investigation of the person making the complaint, rather than the complaint itself. [emphasis added]

As a result of this concern, recommendation 11 of the LeSage Report states, in part. “It must be clear that any person who makes a complaint or is responsible for the handling of a complaint must not be harassed, intimidated or retaliated against for making or handling that complaint.”

LeSage Report, supra, at pp. 62, 68

27. It is submitted that a natural extension of this concern is that a disciplinary hearing, and any appeal from that hearing decision, should not become a forum for attacks on complainants and affected parties in a manner that would undermine the public confidence in the hearing process.

28. The tenor of the Appellant’s cross-examination at the hearing, which is similarly emphasized and given undue prominence in the Appellant’s factum, is that neither the Complainant nor the affected party should have been believed because of their antecedents, criminal or otherwise. The Appellant submits that the Hearing Officer should have conducted an analysis similar to that conducted in relation to unsavoury witnesses in criminal proceedings,

Factum of the Director

notwithstanding that there is no authority for the adoption of this criminal law principle in the administrative law framework.

29. Further, to accept the Appellant’s submissions would ignore the reality that individuals with a criminal history are, by definition, more likely to have encounters with the police and, as a result of the more frequent encounters, are more likely to be subjected to potential police misconduct. To accept the Appellant’s submission would in effect create an impossible burden of proof for finding misconduct, where that misconduct is alleged to have taken place in relation to a person with a criminal history. Stated differently, officers alleged to committed misconduct against persons with a criminal history would almost never be found guilty unless the misconduct occurred in the presence of independent witnesses of exemplary background, or in the absence of a video camera or audio recorder.

30. It is submitted that to permit the focus of a disciplinary hearing to shift from an inquiry into the conduct of the officer to a dissecting inquiry of the background of the complainant, affected parties and other civilian witnesses, would result in members of the public, including third party complainants, being completely discouraged from making complaints against the police or providing evidence of alleged misconduct. This is contrary to the intent of the legislation as recognized by Justice LeSage in his report.

31. Another factor for consideration is that Part V grants complainants full party status at disciplinary hearings. Although they have full party status, the type of cross examination that occurred in this case reveals a fundamental unfairness in the disciplinary process. Respondent officers have access to background information concerning complainants. However, complainants have no similar access to disciplinary or background information into the officers. Most complainants who do participate in these hearings are not represented by counsel. By allowing an in-depth exploration of the

Factum of the Director

complainant or witness’ background, the complainant is deprived of an opportunity to participate in the hearing on the same footing as the respondent officer.

Figueiras v. York (Regional Municipality) Police Services Board 2013 ONSC 7419, [2013] O.J. No. 5911, at para. 43 (OIPRD’s Book of Authorities, Tab 8)

32. As a final consideration, section 8 of the Statutory Powers Procedures Act states.

Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

Statutory Powers Procedures Act R.S.O. 1990, c. S.22, s. 8.

33. The transcripts do not reflect that proper notice was given to the complainant regarding the evidence of bad character that was going to be elicited in cross-examination. The failure to do so compounds and highlights the fundamental unfairness inherent in disciplinary prosecutions where a disproportionate attack is made on the credibility and character of civilian witnesses. It also further undermines public confidence in the public complaints process.

PART III – ORDERS SOUGHT

34. The Director takes no position with respect to the orders requested. However, should a new hearing be ordered, the Director requests an order restricting the scope of cross-examination of the

Factum of the Director

complainant and the affected party or, minimally, requiring compliance with section 8 of the Statutory Powers and Procedures Act.

All of which is respectfully submitted on this 30^th^ day of April, 2015.

[Original signed by]

___________________

Miriam Saksznajder

Counsel for the Independent Police Review Director

Factum of the Director