ONTARIO CIVILIAN POLICE COMMISSION
FILE: OCPC-16-ADJ-007
CASE NAME: QUEEN AND SPADINA COMPLAINANTS, AKHAVI AND DESHMAN and SUPT. FENTON (#3535) and TORONTO POLICE SERVICE
IN THE MATTER OF A MOTION FOR LEAVE TO APPEAL UNDER SUBSECTION 87(4) OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, REGARDING A PENALTY DECISION
BETWEEN:
SHERVIN AKHAVI and JONATHAN DESHMAN APPELLANTS/COMPLAINANTS
-and-
SUPERINTENDENT D. MARK FENTON #3535 RESPONDENT
-and-
TORONTO POLICE SERVICE RESPONDENT
-and-
THE INDEPENDENT POLICE REVIEW DIRECTOR STATUTORY INTERVENER
DECISION
Panel: Roy Conacher, Q.C., Vice Chair Hearing Location: Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3
Written Submissions:
Sean Dewart, Tim Gleason and Adrienne Lei, Counsel for the Complainants/Proposed Appellants, Shervin Akhavi and Jonathan Deshman
Peter Brauti and Lawrence Gridin, Counsel for the Respondent, Superintendent D. Mark Fenton
Marianne Wright and Sharon Wilmot, Counsel for the Respondent, Toronto Police Service
Miriam Saksznajder, Counsel for the Statutory Intervener, the Independent Police Review Director
I. Introduction
[1]. This matter deals with a motion by Shervin Akhavi and Jonathan Deshman (the “complainants” or “Queen and Spadina complainants”) seeking leave from the Ontario Civilian Police Commission (the “Commission”) pursuant to section 87 (4) of the Police Services Act, R.S.O. 1990, c.P.15, (the “PSA”) to appeal the penalty decision of the Honourable John Hamilton, Q.C. (the “Hearing Officer”) dated June 15, 2016. In that decision, the respondent, Superintendent D. Mark Fenton (the “respondent Officer”) was sentenced to a total forfeiture of 30 days off for two counts of misconduct under section 80 of the PSA related to police conduct towards the two complainants herein.
[2]. This motion arises from similar circumstances and is brought concurrently with a separate motion by David Steele and Brenda Campbell, (the “Novotel complainants”) under Commission file number 16-ADJ-007 also seeking leave to appeal the decision of the Hearing Officer dated June 15, 2016 in which the respondent Officer received a penalty of a reprimand on one count of misconduct under section 80 of the Act related to police misconduct towards those two complainants.
[3]. The respondent Officer opposes the motions. The Independent Police Review Director (the “Director” or “IPRD”) supports the applications to grant leave to appeal while the Toronto Police Service (the “TPS”) takes no position and has not filed any materials on the motions
II. Decision
[4]. For the reasons that follow, it is ordered that leave to appeal the decision of the Hearing Officer is hereby granted.
III. Background
[5]. This matter arises from the conduct of the respondent Officer during the G20 Summit, which took place in Toronto, Ontario on June 25, 26 and 27, 2010.
[6]. During Friday, June 25 and Saturday, June 26, 2010, there were a number of serious incidents of widespread vandalism in downtown Toronto resulting in significant damage to property. There were also peaceful protests occurring in some areas of the downtown.
[7]. On June 26 and again on June 27, 2010, the respondent Officer was the Incident Commander in the Major Incident Command Centre of the TPS and was responsible for overall management of the actions of TPS officers and police officers from other services policing the G20 event. He had at his disposal all TPS police resources necessary to carry out the mandate of protecting the authorized participants in the Summit and members of the public.
[8]. During his command, there were two significant actions taken by police officers involving a confrontation with members of the public and a crowd control technique known as “kettling” of members of the public at two separate locations, namely at the Novotel Hotel on June 26 and at the intersection of Queen Street and Spadina Road in the city on June 27, 2010.
[9]. The Hearing Officer found that such actions by police officers breached the Charter rights of those members of the public, including the complainants, by unlawfully arresting them without reasonable and probable grounds, by arbitrary detention and by the unlawful or unnecessary exercise of authority. The Hearing Officer found that the respondent Officer had given the orders for police officers under his command to carry out such actions.
[10]. The Hearing Officer found the respondent Officer guilty of misconduct contrary to section 80 (1)(a) of the PSA, namely, two counts of unlawful or unnecessary exercise of authority under section 2 (1)(g)(i) and one count of discreditable conduct under section 2 (i)(a)(xi) of the Code of Conduct, as set out in O. Reg. 268/10. The respondent Officer was acquitted on two other counts.
[11]. During penalty submissions before the Hearing Officer, the Queen and Spadina complainants sought the dismissal of the respondent Officer. The Novotel complainants sought a demotion of the respondent Officer to Inspector for one year, a suspension for 30 days with pay, a forfeiture of 24 days pay, forfeiture of 20 days off, a reprimand and a number of other conditions related to the training of the respondent Officer. They also requested the Hearing Officer to recommend to the Chief of TPS to establish a compensation fund to compensate members of the public who are subject to police misconduct.
[12]. The respondent Officer submitted that the appropriate penalty would be a reprimand or alternatively not more than a forfeiture of between 5 to 10 days. The TPS sought demotion for a period of 12 months to the rank of Staff Inspector followed by automatic reinstatement to Superintendent thereafter.
IV. Complainants’ Submissions on Motion
[13]. The Complainants made the following points in their submissions on the motion for leave to appeal:
The penalty imposed by the Hearing Officer was unreasonable having regard to the serious scale and nature of the respondent Officer’s deliberate violation of the Charter rights of the complainants and hundreds of other persons and his lack of insight into his wrong doing;
The Hearing Officer erred in law in his assessment of aggravating and mitigating factors in the context of an employment hearing;
The Hearing Officer by disregarding the numerous adverse credibility findings regarding the respondent Officer’s testimony and by mischaracterizing the complainants’ submissions regarding deceit;
The Hearing Officer committed the following overriding errors:
i) He made inappropriate findings of fact and credibility that were irreconcilable with the evidence before him and his own findings of fact and failed to provide reasons for so doing;
ii) He misapprehended the evidence, failed to consider relevant evidence, considered irrelevant evidence and failed to provide reasons for so doing.
For the above reasons the penalty decision is wrong on its face and the appeal involves matters of such importance that leave ought to be granted;
The matters raised in the proposed appeal are of significant importance to the policing profession as a whole and the community at large. The circumstances were unprecedented and the decisions made by the respondent Officer and the TPS have received significant scrutiny, media attention and ongoing criticism respecting the abrogation of rights of the public that a full review of the penalty is warranted.
V. Respondent Officer’s Submissions on Motion
[14]. In his factum, the respondent Officer made the following points:
The respondent Officer was placed in command under immense pressure in very extreme unprecedented conditions with public order breaking down and severe violent acts occurring in downtown Toronto;
The penalty imposed by the Hearing Officer was not disproportionate to the misconduct and there should be deference given to the decision;
The test for leave to appeal has not been met as there is no clear error in the decision on its face nor is the issue of the appropriate penalty of sufficient importance that leave should be granted on that basis alone;
The purported errors of the Hearing Officer rest upon misconceptions by the Complainants concerning the law governing penalty hearings in professional disciplinary context and if leave is granted, the complainants would be requesting, in effect, that the Commission embark upon a de novo penalty hearing contrary to the Commission’s function;
The issue of appropriate penalty is not of sufficient importance to warrant the granting of leave. Policing decisions made during the G20 Summit, more than six years ago, have been the subject of innumerable studies and reports;
Because of the unique circumstances of this case it is unlikely that any police officer will be faced with a similar breakdown in public order and therefore any decision on penalty will not have much precedential value;
The Hearing Officer did not err by considering evidence that had been ruled irrelevant or by making findings of fact in the absence of evidence;
The complainants, in their submissions, have misconstrued the mitigating and aggravating factors to be considered in a penalty decision. For example, adverse findings of credibility are not an aggravating factor. The respondent Officer was entitled to file unsworn letters of commendation in relation to his penalty submissions.
The employer continues to support the respondent Officer and has allowed him to continue as a Unit Commander notwithstanding the discipline matters;
The fact that the respondent Officer has an automatic right of appeal should not simply mean that the complainants should be granted leave without satisfying the test for granting leave to appeal;
The publicity has been intense and the proceedings have been prolonged and there has been significant stress upon the respondent Officer affecting his professional career, his private life and his health;
The events resulted in unique and unprecedented circumstances and the respondent Officer was called upon to make decisions to bring the situation under control and there was no disagreement by his superiors regarding his methods and decisions.
VI. IPRD’s Submissions on Motion
[15]. The IPRD made the following written submissions:
The Director agrees with the test for leave to appeal set out in the complainants’ factum: Wall and Constable Vincent Wong and Toronto Police Service, OCPC Decision NO. 14-11; Grychtchenko and McCartney and Toronto Police Service, 2015 ONCPC 20, (CAN LII); Nobody and Andalib-Goortani 9859 and Toronto Police Service, 2016 (Can Lll 35392) ONCPC;
The Director supports the motion for leave to appeal;
The Director takes no position on the first condition of the test and submits that the second condition has not been met;
The third condition has been satisfied as the matters raised in the proposed appeal are clearly of significant importance to the policing profession and also the community at large;
In the cases of Wall and Nobody, supra, the Commission considered similar factual circumstances involving unlawful arrest, , breach of the Charter rights of the individuals and attendant publicity and the divergent positions of the parties on the issue of the penalty and held in those cases that the third factor of the test was met and granted leave;
The Director submitted that the third branch of the test is met applying the same considerations and given these unique and highly scrutinized set of circumstances;
There is no factually similar precedent and the appropriateness of the penalty in this case is of significant importance to the policing profession and to the general public.
VII. Analysis
[16]. Section 87(4) of the Act provides that 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)” [emphasis added].
[17]. The Commission’s decision on a motion for leave to appeal is therefore discretionary. In this case, the complainants seek to appeal the penalty imposed by the Hearing Officer.
[18]. In Grychtchenko and McCartney and Toronto Police Service, supra, the Commission set out the test for determining whether the Commission’s discretion under section 87 (4) of the PSA should be exercised to grant a complainant’s motion for leave to appeal. Leave to appeal should be granted if any one of the following conditions is met:
The decision is clearly wrong in its face and the appeal involves matters of such importance that leave ought to be granted;
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,
The matters raised in the proposed appeal are of significant importance to the policing profession as a whole and to the community at large.
[19]. As stated, a complainant/proposed appellant need only meet one of the three criteria of the test. All parties agreed that this is the test.
[20]. The events of the G20 and specifically the methods used by TPS officers and officers from other police services to control members of the public and protestors have been the subject of continued scrutiny, ongoing debate and publicity involving the rights of the public and the exercise of police powers.
[21]. In the circumstances of this case the issues raised in the proposed appeal and the appropriateness of any penalty imposed upon a senior police unit commander continue to be of significant importance to the policing profession and to members of the general public and deserve to be resolved by a full appellate review. I respectfully disagree with the position of the respondent Officer that this case is of no precedential impact.
[22]. Applying similar considerations as outlined in the Wall, Grychtchenko and Nobody cases, in my view, the Complainants in this case have satisfied the third criterion of the test.
[23]. In view of my determination that the third criterion is satisfied, I make no comment on the first criterion of the test. The second criterion has no application since there are no conflicting decisions.
[24]. There have been very divergent positions taken by the parties and the Intervener on the issue of penalty, and that issue requires resolution by a full appellate review of the decision of the Hearing Officer.
VIII. Decision
[25]. The Commission therefore orders that leave to appeal the decision of the Hearing Officer is hereby granted.
DATED AT TORONTO THIS 1st DAY OF DECEMBER, 2016.
Roy B. Conacher, Q.C. Vice Chair