Ontario Civilian Police Commission
File: 2015 ONCPC 03
Case Name: Gauthier (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 John Gauthier, chief of the timmins police service
Ruling on Motion
Panel
David C. Gavsie, Associate Chair Zahra Dhanani, Member
Hearing Date: February 5, 2015
Hearing Location:
Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3
Appearances
Ian Johnstone and Alex Sinclair, Counsel for Chief John Gauthier
Victoria Kondo and Erin Rizok, Counsel for the Ontario Civilian Police Commission
Background
[1]. John Gauthier ("Chief Gauthier" or the "Chief") is the Chief of the Timmins Police Service (the "Service").
[2]. As the result of an investigation undertaken by the Ontario Civilian Police Commission ("the Commission") under Section 25 (1)(a) of the Police Services Act, R.S.O. 1990, c.P.15, as amended (the "Act"), Chief Gauthier has been charged with acting in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Service, and thereby engaging in Discreditable Conduct contrary to s. 2(1)(a)(xi) of the Code of Conduct contained in the Schedule to Ontario Regulation 268/10, as amended (the "Code of Conduct"), and did thereby commit misconduct pursuant to s. 30 (1) of that Regulation and s. 80 (1)(a) the Act.
[3]. The Notice of Hearing dated September 3, 2014, (the "Notice"), contains particulars alleging that:
On or about May 20, 2013, Chief Gauthier withdrew or caused to be withdrawn two Certificates of Offence that had been issued by a member of the Service to Mr. Gary Scripnick, a member of Timmins City Council;
[4]. Chief Gauthier has not yet answered the allegation against him. Therefore, a hearing into his conduct has not yet taken place.
Preliminary Motion
[5]. On February 5, 2015, the Panel heard a motion brought by Chief Gauthier (the "Motion"), requesting an Order that the Commission provide additional disclosure, including:
a) further and better particulars as to what actions of the Chief are alleged to constitute misconduct;
b) any legislation, regulation, adequacy standard, policy, directive or other authority upon which the the Commission intends to rely to support the notion that the Chief's actions in canceling the Provincial Offence Notices (the "PONs") were unlawful and/or improper; and similarly any of the above that will support the notion that the Chief's "inconsiderate approach" was unlawful and/or improper;
c) the details of any alleged "personal" relationship between Chief Gauthier and Mr. Scripnick;
d) the names of the officers who are alleged to have had "adverse reactions" after Chief Gauthier cancelled the PONs and the full particulars of said "adverse reactions";
e) any and all records including but not limited to emails and text messages that were received by Timmins Police Association President Mike Fortin with respect to the Chief's decision to cancel the PONs; and
f) any and all details uncovered by the Commission investigators with respect to the alleged donation of a vehicle to the Service and that the donor of that vehicle did not receive traffic tickets as a result.
Ruling on Motion
[6]. For the reasons set out below, the Motion is dismissed.
Reasons
[7]. Rules of Natural Justice and Procedural Fairness govern the proceedings at the Commission. The Supreme Court of Canada articulated the values underlying the duty of procedural fairness in Baker v. Canada (Minister of Citizenship and Immigration) (1999), 1999 CanLII 699 (SCC), 174 D.L.R. (4th) 193 (S.C.C.). One of the key principles of that decision is that individuals affected by a proceeding should have the opportunity to know and subsequently meet their case fully.
[8]. It is a well settled principle and legal obligation that full disclosure be provided to the party who is the subject of the hearing: see The Statutory Powers and Procedures Act, R.S.O. 1990, c.S. 22 (the "SPPA").
[9]. Unlike the courts, administrative tribunals have special procedures, have a flexible and nimble process and do not have to import the strictly rigid rules of the courts, see Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, and Razack v. Ontario Human Rights Commission, 2007 CanLII 48641.
[10]. Counsel for the Chief argued that the standard for disclosure at the Commission is similar to the requirements as set out in the criminal law context, particularly as set out in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, and R v. McNeil, 2009 SCC 3.
[11]. We disagree. The administrative law duty to supply particulars does not correspond to that imposed under criminal law. In the case of Violette v. New Brunswick Dental Society, 204 NBCA 1, the court found that in the administrative law context, even if all the particulars are not provided in a notice, it is unlikely to be deemed "insufficient" if the party had most of the relevant information to know the case.
[12]. In the case of Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 at para. 50, the Court concluded:
That a notice of hearing in a discipline case is not to be construed in the same way as a criminal indictment. While some Notices of Hearing have contained detailed particulars about allegations relating to named patients... others have been much less detailed, but still have been found to meet the requirements of the code.
[13]. Mr. Sinclair submitted that there is case law that demonstrates that the criminal law principles of disclosure have been applied in administrative law proceedings, see Sheriff v. Canada, 2006 FCA 139, [2006] FCJ No 580 (FCA). As seen in Violette, supra, and Rudinskas, supra, determinations by criminal courts on disclosure issues are not binding on administrative tribunals.
[14]. Mr. Sinclair argued that the information contained in the Notice was not sufficient to permit Chief Gauthier to know the case again him.
[15]. He said that the Chief's request for further particulars is based on his need to properly prepare for and know the case he will be required to meet at the hearing. It was submitted that the information in the Notice and provided in disclosure is not specific enough. Mr. Sinclair argued that while copious amounts of information has been provided, counsel for the Chief still do not know which exact facts the Commission will be relying on at the hearing.
[16]. Mr. Sinclair submitted that Discreditable Conduct is a "catch all" offence, meant to address many aspects of conduct. It is broad and far reaching, so the Commission should outline the particulars it will be relying on, or else Chief Gauthier will have a disadvantage which is contrary to principles of natural justice.
[17]. Mr. Sinclair stated it is because there is such an overwhelming amount of disclosure that the Chief does not know the case to be met. The overarching request is that the Commission narrow down the facts and evidence that it will be relying on.
[18]. Ms. Kondo submitted that the Commission has provided full disclosure. The Commission has disclosed everything and will disclose anything relevant that comes to their attention before or during the hearing.
[19]. Ms. Kondo submitted that the record on the Motion establishes that Chief Gauthier has been provided with more than adequate information to be able to know the case he has to meet and he has been provided with adequate time and opportunity to respond to the allegations.
[20]. Ms. Kondo submitted that Chief Gauthier is well positioned to put forward and prepare a response to the allegations. In this case, Chief Gauthier has been provided with:
a) the Notice of Hearing setting out the allegation of misconduct, the section of the Code of Conduct that he is alleged to have breached and with particulars;
b) the Commission's Investigation Report (48 pages in length) with attachments, outlining the investigative process, information obtained and conclusions;
c) extensive and ongoing disclosure from the Commission (approximately 1175 pages and 41 audio and visual files), which includes media clips quoting Chief Gauthier, names of relevant parties and relevant dates of all alleged occurrences; and
d) a list of witnesses and what they will say.
[21]. Section 6 of the SPPA requires that a notice of hearing for an oral hearing include: a reference to the statutory authority under which the hearing will be held; the time, place and purpose of the hearing and a statement that if the notified party does not attend at the hearing, the tribunal may proceed in the party's absence and the party will not be entitled to further notice.
[22]. In reviewing the Notice in this matter, we find that it not only contains the information required in the SPPA but in addition, it outlines quite clearly the allegation against Chief Gauthier and therefore the case that has to be met.
[23]. In a recent Commission decision on a very similar motion, requesting more particulars than were provided in the Notice of Hearing, it was held by a panel of the Commission that the Notice of Hearing combined with the Investigative Report provided the Respondent with sufficient particulars to know the case before him, see Greg Oliver, Member of the Stirling-Rawdon Police Services Board, Decision on Motion (January 15, 2013, OCPC).
[24]. With the Notice, the 48 page Investigative Report, over 1175 pages of evidence, 41 audio and video files, and a list of witnesses with supporting will-say statements, we find that Chief Gauthier is in a position to know the case he has to meet.
[25]. In a s. 25 proceeding under the Act, the burden of proof rests on the Commission and it is their case to meet the allegations with sufficient evidence. At the hearing stage the Commission may go down one road or many in its argument. Disclosure is meant to cover any road they may choose to go down.
[26]. At the hearing, Commission's counsel will introduce all the evidence counsel intends to rely on. It will be primarily based on the evidence already disclosed. If the Commission wishes to introduce evidence at the hearing which was not disclosed before-hand, counsel would have to provide a reasonable explanation why that evidence was not introduced prior to the hearing, defense counsel would make submissions and at that point the Panel would deliberate whether it would even be admitted into evidence.
[27]. Defence counsel will have an opportunity to cross examine each witness and to bring their own witnesses. Defence counsel will have an opportunity to highlight the evidence that they see as relevant and make arguments based on that evidence.
[28]. Counsel for the Moving Party raised an argument that would suggest that the Commission should point to every piece of evidence that it intends to rely on at the hearing, so that defence counsel will know the case they are expected to meet. We find that this would unduly and improperly constrict the Commission's ability to make its case leading up to and at the hearing.
[29]. Mr. Sinclair argued that the Chief is entitled to full disclosure. We agree. We find however that there is a misunderstanding by defence counsel as to what that means. Full disclosure does not mean that the Commission will provide it's line of argument and the exact pieces of evidence from the disclosure that it will rely on to support that argument. That will be provided in closing submissions.
[30]. Ms. Kondo submitted that this is a pretty straightforward case and factually this is not a hard case to understand in that it involves one allegation.
[31]. The Notice makes it clear that the case to be met at the upcoming hearing is the Chief's conduct as it relates to the cancellation of the PON's tickets against Mr. Scripnick. This is the only allegation.
[32]. We cannot agree with Chief Gauthier that any more "particulars" in this case are necessary.
[33]. The first request of the Chief is for "further particulars as to what actions of the Chief are alleged to constitute misconduct". We find that sufficient particulars have been provided. Counsel for Chief Gauthier should be able to sift through the disclosure and create their own understanding of the salient facts.
[34]. The second and third request of the motion is for "any legislation, regulation, adequacy standard, policy, directive or other authority upon which the Commission intends to rely" for two specific lines of argument:
a) that the Chief's actions in canceling the PONs was unlawful and/or improper; and
b) that the Chief's "inconsiderate approach" was unlawful and/or improper.
[35]. The Commission is only obligated to disclose evidence available to it. The Commission is not obligated to provide: analysis, theory of their case, legal argument, strategy or any legal research. Each party has counsel, and it is the work of counsel to do this research for their client.
[36]. The duty imposed on the Crown in criminal cases as per McNeil, supra, is not the same in proceedings before the Commission. Specifically, Commission counsel are not required to do further research as requested by defence counsel, nor are they required to make inquiries of other agencies or government departments.
[37]. The Notice states that this is a matter under the Act, pursuant to section 25(1)(a) and more specifically that it is alleged that the conduct of the Chief has contravened s.2(1)(a)(xi) of the Code of Conduct.
[38]. The provisions of law to be relied on are clear. Any further disclosure of legal authority is not required of the Commission at this stage of the proceeding.
[39]. The fourth request is for "the details of any alleged "personal" relationship between Chief Gauthier and Mr. Scripnick".
[40]. The disclosed Investigation Report created by the investigation division of the Commission refers to a personal relationship between Chief Gauthier and Councillor Scripnick.
[41]. The words in the Investigative Report are not the allegations. The allegation that must be met is in the Notice. It is not the duty of Commission counsel to explain everything in the Investigation Report. The report is evidence, it is not the case to be met.
[42]. In any case, Ms. Kondo submitted that whatever information they had relating to a personal relationship between the Chief and Mr. Scripnick was disclosed. The Commission cannot be expected to provide more information than it has, or to go looking for extra information because the defence wants it.
[43]. Mr. Sinclair suggested that evidence of this relationship could be introduced as an allegation at the Hearing.
[44]. Currently there is only one allegation against the Chief and it is the one in the Notice. If Commission counsel wanted to introduce any new allegations, the expectation of this Panel would be that a motion would have to be brought to amend the Notice. Argument would be heard by both parties and the Panel would deliberate on whether it was appropriate to amend the Notice.
[45]. The fifth request for additional disclosure relates to "the names of the officers who are alleged to have had "adverse reactions" after Chief Gauthier cancelled the PONs and the full particulars of said "adverse reactions". This request again comes from information in the Investigation Report that details adverse impact to some police officers.
[46]. Commission counsel repeatedly stated at the hearing of the Motion that they have disclosed all of the information they have. If there is any more information regarding this matter, Commission counsel said they would disclose this too to Chief Gauthier. To not disclose this information and then to try to rely on it at the Hearing would not be acceptable.
[47]. The sixth request in this motion was for "any and all records including but not limited to emails and text messages that were received by Association President Mike Fortin with respect to the Chief's decision to cancel the PONs".
[48]. This hearing is about the conduct of Chief Gauthier. It is beyond the Panel's ability to order the release of the private property of a potential witness at the hearing.
[49]. Further, counsel for the Commission cannot at this stage demand that Mr. Fortin disclose union records.
[50]. Finally, Chief Gauthier makes a request for "any and all details uncovered by the Commission investigators with respect to the alleged donation of a vehicle to the Service and that the donor of that vehicle did not receive traffic tickets as a result."
[51]. Mr. Sinclair submitted that this information was required to make full answer and defense against an allegation relating to the above "donated vehicle".
[52]. There is information of the above "donated vehicle" in the Investigation Report, but it is not an allegation contained in the Notice, nor is it referred to in the particulars.
[53]. As Ms. Kondo stated at the hearing of the Motion, the Commission cannot provide what it does not have. Further, she said the Commission already provided everything it could.
[54]. We find that the Commission has met its duty with the disclosure that it has provided to Chief Gauthier.
[55]. It is therefore the decision of this Panel not to order the production of any further disclosure.
Conclusion
[56]. For the reasons stated above, this motion is dismissed.
Chief Gauthier's Answer to the Allegation
[57]. We would remind counsel about paragraph 4 of our Order dated December 9, 2014, namely that if the Motion is denied in whole, which has occurred, Chief Gauthier's answer to the allegation in the Notice is to be made in writing, and served and filed no later than five days after this Decision.
DATED AT TORONTO THIS 12th DAY OF FEBRUARY, 2015
[Original signed by]
David C. Gavsie Associate Chair, OCPC
Zahra Dhanani, Member, OCPC