ONTARIO CIVILIAN POLICE COMMISSION

DATE: By Written Submissions

FILE: OCPC-16-0055

CASE NAME: NOBODY AND ANDALIB-GOORTANI #9859 and TORONTO POLICE SERVICE

IN THE MATTER OF AN APPEAL UNDER SECTION 87(4) OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED

BETWEEN:

ADAM NOBODY APPELLANT/COMPLAINANT

-and-

POLICE CONSTABLE BABAK ANDALIB-GOORTANI #9859 RESPONDENT

-and-

TORONTO POLICE SERVICE RESPONDENT

DECISION

Panel: D. Stephen Jovanovic, Associate Chair

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

Written Submissions:

Julian N. Falconer and Marc E. Gibson, Counsel for the Appellant Harry G. Black, Q.C., Counsel for the Respondent Police Constable Sharon Wilmot, Counsel for the Respondent Toronto Police Service Jean C. H. Iu, Counsel for the Intervener, the Independent Police Review Director

Introduction

1. This Decision deals with a motion by Adam Nobody (the “Appellant”) seeking leave from the Commission pursuant to section 87(4) of the Police Services Act, R.S.O. 1990, c.P.15, as amended (the P.S.A) to appeal the penalty decisions of The Honourable Lee K. Ferrier, Q.C. (the “Hearing Officer”), dated November 5 and 10, 2015. In those decisions, Constable Andalib-Goortani (the “Respondent Officer”) was sentenced to a penalty of forfeiture of five days’ pay.

2. The Independent Police Review Director (the “Director”) supports the motion to grant leave to appeal while the Toronto Police Service (the “TPS”) takes no position and has not filed any materials on the motion.

Ruling

3. For the reasons that follow, it is ordered that:

i) Leave to appeal the decision of the Hearing Officer is hereby granted;

ii) A Pre-Hearing Conference will be scheduled as soon as practical to deal with any issues arising from this decision and to schedule a date for the hearing of the Appeal as expeditiously as practical.

Background

4. This matter arises from the conduct of the Respondent Officer while participating in the arrest of the Appellant on June 26, 2010, during the G20 Summit held in Toronto. The Respondent Officer was convicted of assault with a weapon on September 12, 2013, following a trial before Justice L. Botham of the Ontario Court of Justice. He was sentenced to forty-five days in jail, but appealed both his conviction and the sentence.

5. In decisions dated March 4, 2015, Justice O’Marra of the Superior Court of Justice dismissed the Appeal from conviction, but allowed the Appeal as to sentence, substituting a suspended sentence with one year probation.

6. The Respondent Officer, following an investigation by the Director, was charged with two offences under Part VII, Schedule Code of Conduct, as set out in O.Reg. 268/10 under the PSA. He eventually pleaded guilty to the charge of discreditable conduct under section 2(1)(a)(ix), in that he was guilty of a criminal offence. A second charge of use of unnecessary force under section 2(1)(g)(ii) of the Code was withdrawn.

7. Before the Hearing Officer, the Appellant sought the dismissal of the Respondent Officer from the TPS, while the defence submitted that the forfeiture of five days’ pay would be an appropriate penalty, which submission was accepted by the Hearing Officer.

Reasons

8. The test for leave to Appeal by the Commission, as stated in Grychtchenko and McCartney and Toronto Police Service, 2015, ONCPC 20 is as follows:

Leave to Appeal should be granted if one of the following conditions is met:

1. The decision is clearly wrong on its face and the Appeal involves matters of such importance that leave ought to be granted; or

2. There is a conflicting decision of the Commission on the matter involved in the proposed Appeal and it is desirable that leave be granted; or

3. The matters raised in the proposed Appeal are of significant importance to the policing profession, as a whole, and the community at large.

9. All parties agree with the statement of the test for leave to Appeal, with the Respondent Officer submitting that none of the branches of the test have been satisfied and, therefore, leave to appeal ought not to be granted. As stated in Grychtchenko, an Appellant need only meet the criteria of one of the three branches before leave will be granted. I find that the Appellant’s request does satisfy the third branch of that test.

10. In his factum, the Appellant sets out numerous alleged errors committed by the Hearing Officer including that he:

• failed to consider the effect of the Respondent Officer’s misconduct on the Appellant or on the public’s confidence in the officer and the Police Force;

• erred in his assessment of mitigating factors and collaterally attacked findings made in the criminal proceeding;

• erred in the assessment of aggravating factors such as a failure on the part of the Respondent Officer to wear mandatory identification, his continued avoidance of accountability, and his untruthful testimony and lack of remorse.

11. The Respondent Officer, in his factum, submitted that leave to Appeal should not be granted because the penalty imposed:

• was in accordance with established principles with respect to penalty as articulated by the Commission and considered by the Hearing Officer;

• was a fit and just penalty having regard to the circumstances of the officer, the conduct of which, the Respondent Officer was found guilty, his record of service and other relevant circumstances taken into account by the Hearing Officer;

• the decision of the Hearing Officer contained no legal errors, nor did it reflect errors in principle, nor did the Hearing Officer fail to take into account relevant factors, nor did he take into account extraneous or irrelevant circumstances, nor did he err with respect to the weight that he gave to relevant factors;

• the Appellant’s factum contains numerous erroneous submissions regarding the evidence before the Hearing Officer, the reasons of the Hearing Officer, the jurisprudence relating to penalty decisions and other alleged errors;

• the Appellant has, in effect, created a “record” of submissions, materials, media extracts and public comments that were not before the Hearing Officer and should not be considered by the Commission.

12. There is little doubt that the police conduct in the G20 Summit has been considered by many to be a rather notorious chapter in the history of, not only the TPS, but of other Police Services involved as well. The facts of the Appellant’s arrest, injuries, and the conduct of the arresting officers, including the Respondent Officer, have been the subject of much publicity. Notwithstanding the passage of time since the Summit, the matters raised in the proposed Appeal remain of significant importance to the policing profession, as a whole, and the community at large.

13. The conflicting submissions of the parties, on all aspects of the penalty decision, deserve a full hearing to set the record straight and achieve some finality for the Respondent Officer and the Appellant. Given my conclusion that leave to Appeal ought to be granted, I will not make any further comments on the diametrically opposed submissions of the parties.

Decision

14. The Commission therefore orders the following:

i) Leave to appeal the decision of the Hearing Officer is hereby granted;

ii) A Pre-Hearing Conference will be scheduled as soon as practical to deal with any issues arising from this decision and to schedule a date for the hearing of the Appeal as expeditiously as practical.

DATED AT TORONTO THIS 6th DAY OF JUNE, 2016.

D. Stephen Jovanovic, Associate Chair