ONTARIO CIVILIAN POLICE COMMISSION

Safety, Licensing Appeals and Standards Tribunals Ontario

COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Citation: Mulligan v. Ontario Provincial Police, 2017 ONCPC 19

Date: December 27, 2017

Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended

Between:

Sgt. Dan Mulligan Appellant

and

Ontario Provincial Police Respondent

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair Jacqueline Castel, Member Winston Tinglin, Member

Appearances: James Girvin, Counsel for the Appellant Andrea Huckins, Counsel for the Respondent

Place and date of hearing: Toronto, Ontario September 26, 2017

Introduction

1Sergeant Dan Mulligan (Sgt. Mulligan or the appellant) is appealing the January 23, 2017 decision of Superintendent Greg Walton (the Hearing Officer) which found him guilty of one count of Insubordination and one count of Discreditable Conduct, contrary to the Code of Conduct, Ontario Regulation 268/10 (the Code), under the Police Services Act, R.S.O. 1990, c. P.15 (the PSA). Sgt. Mulligan is not appealing the penalties imposed.

2The convictions arose in relation to a presentation that Sgt. Mulligan made, while off duty, at a conference organised by a group called “Not By Accident”, a coalition of health units in south western Ontario, and the Government of Ontario. The conference took place on September 17, 2015 and was entitled “Cannabis Legalization – Is this a trip we want to take?”

3The respondent opposes the appeal.

DISPOSITION

4The appeal of the finding of Insubordination is dismissed. The appeal of the finding of Discreditable Conduct is allowed. The penalty of the forfeiture of 40 hours on the finding of guilt of Insubordination is therefore confirmed.

BACKGROUND

5On June 30, 2015 Superintendent William Davies directed Staff Sergeant Daniel Cameron (S/Sgt. Cameron) to issue a verbal and written order to Sgt. Mulligan not to attend or present at the September 17, 2015 conference.

6On June 30, 2015 S/Sgt. Cameron verbally ordered Sgt. Mulligan not to attend and present at the conference. Constable Thomas Laing witnessed S/Sgt. Cameron issue this verbal order.

7Sgt. Mulligan requested that S/Sgt. Cameron put the order in writing. He did so in the following email:

“You attended my office on June 30th, 2015, at 3:25 p.m. I gave you a verbal order not to attend or speak at the above noted function. I also provided a copy of the above captioned event [in reference to the attached Cannabis legalization Agenda]. My verbal order was witnessed by Constable Thomas Laing. This email will serve as the written order not to attend or speak at this event.”

The registration form and agenda of the conference were attached to the email

8The appellant admitted that he received the above verbal and written orders from S/Sgt. Cameron and that he did not challenge the lawfulness of the order prior to the conference.

9The appellant was listed on the agenda of the conference as a speaker as follows.

“Dan Mulligan, Police Sergeant, LEAP ‘Protecting Our Kids’ Future’”.

10Page 2 of the registration form and agenda included the following biography:

“Dan Mulligan, Police Sergeant Law Enforcement Against Prohibition (LEAP) Dan is a 39-year veteran of the Ontario Provincial Police, where he is a sergeant and currently holds the position of Pilot in Command. Motivated by an interest in problem solving and dealing with people, he rejected prohibitionist drug policies from the beginning. Dan believes that the war on drugs has been a failure since its inception, and that we must all assume a degree of responsibility for the social, economic and criminal justice fallout that has resulted from prohibition.”

11Inspector Mark Andrews attended the conference prior to his retirement. Superintendent Angie Howe informed him that the appellant was ordered not to attend or present at the conference and asked him to ensure that the appellant was aware of the order and of the consequences of non-compliance.

12Inspector Andrews testified at the hearing that he approached the appellant at the registration table of the conference and had the following exchange with him:

“I said to Dan, “Dan, you know you understand that you’ve been ordered not to attend this event?” and Dan replied, “I understand that, sir. I said “You have been ordered not to speak.” His reply was, “I understand that sir.” I told him if he chose to speak, there would be ramifications if he chose to do this, and he said “I understand that sir.” And I said the course of direction was his to take, and I left it at that ... “

13The appellant admitted that he had this conversation with Inspector Andrews.

14Inspector Andrews testified that the appellant’s biography, which was included with the agenda, was read when he was introduced. When the appellant gave his presentation, he stated that he was speaking on behalf of Law Enforcement Against Prohibition (LEAP), and that he was not speaking on behalf of the OPP or representing its views

15The appellant admitted that while off-duty, and in civilian clothes, he attended the conference and gave a 30 minute presentation, as a representative of LEAP, and also participated in a panel comprised of the day’s presenters.

16The appellant’s presentation was about how prohibition has failed, and he stated in his presentation that he and others in law enforcement saw no need to have a prohibition of cannabis.

17Inspector Andrews testified that the appellant stated in his presentation that there was one particular statute dealing with cannabis marijuana which he would not enforce. On cross-examination, Inspector Andrews was asked whether he agreed that the appellant did not suggest in his presentation that anyone should break the law dealing with cannabis marijuana as it stands. Inspector Andrews responded that he “would not agree fully with that statement”:

18On December 15, 2015, the appellant was served with a Notice of Hearing charging him with two counts of Insubordination and one count of Discreditable Conduct in relation to his attendance and presentation at the conference while off-duty

19The following was alleged in the Notice of Hearing:

Count 1:

• On Sept 17, 2015 Sgt. Mulligan disobeyed an order given to him verbally by S/Sgt. Cameron when he attended and presented at the Not By Accident conference on cannabis legalization while off-duty.

Count 2:

• On September 17, 2015 Sgt. Mulligan was reminded of the order not to attend or present at the conference by Inspector Andrews and warned of consequences of non-compliance. Sgt. Mulligan remained and presented at the conference, sharing his personal views on marijuana legalization.

Count 3:

• On September 17, 2015, while off duty, Sgt. Mulligan spoke in favour of marijuana legalization at the Not by Accident conference. The advertising material for the conference identified Sgt. Mulligan as a serving member of the OPP and he was introduced at the conference as the pilot-in-chief for the OPP.

20In his decision of January 23, 2017 the Hearing Officer found Sgt. Mulligan guilty of count 1, Insubordination, and count 3, Discreditable Conduct. The Hearing Officer found Sgt. Mulligan not guilty of count 2, Insubordination relating to the reminder of the order by Inspector Andrews.

Issues on Appeal

21The issues before us, as summarized in oral argument, are:

(1) Did the Hearing Officer err in finding that the order given to the appellant was lawful?

(2) Did the Hearing Officer apply the correct legal test in finding the appellant’s conduct discreditable?

Analysis

Standard of Review

22The standard of review to be applied by the Commission on an appeal from a decision of a Hearing Officer is reasonableness on questions of fact and correctness on questions of law (Ottawa Police Services v. Diafwila, 2016 ONCA 627).

Was the Order Lawful?

23The appellant’s position at the hearing and on appeal was that the order issued to him not to attend and present at the conference was not lawful; as such, he was not required to follow the order.

24Mr. Girvin submitted that for an order to be lawful the conduct which is the subject matter of the order must be contrary to the PSA. He argued that the Hearing Officer erred in stating:

“If a member can be held accountable for off-duty misconduct then it is logical to conclude command staff can direct them specifically not to commit that act which would otherwise constitute misconduct if committed.”

According to Mr. Girvin, neither the PSA nor case law supports this premise.

25He submitted that while an officer can be found guilty of discreditable conduct pertaining to off-duty conduct, there is no legal authority for the respondent to issue orders pre-emptively with respect to off-duty conduct.

26We disagree that there was no legal authority for the order. The authority for the respondent to order the appellant not to present at the conference falls under section 49(1)(a) and (b) of the PSA.

27Section 49 (1) (a) and (b) state:

(1) “A member of a police force shall not engage in any activity,

(a) that interferes with or influences adversely the performance of his or her duties as a member of a police force, or is likely to do so;

(b) that places him or her in a position of conflict of interest, or is likely to do so;”

28The Hearing Officer was therefore correct in finding that section 49(1) (a) and (b) gave the respondent the authority to issue the order to the appellant on the secondary activity of making a presentation at a conference opposing the laws on cannabis, laws which he is required as a police officer to enforce, and speaking out in favour of the legalisation of marijuana.

29The Hearing Officer made an alternative finding, in the event that section 49 is not applicable, that the respondent has the authority to intervene and issue an order whenever it becomes aware that a member is about to commit what could be construed as misconduct, regardless of whether the member is on duty. It is not necessary for us to consider this alternative finding given our conclusion that the Hearing Officer was correct in concluding that section 49 (1)(a) and (b) of the PSA gave the respondent the authority to issue the order in question.

30While not expressly stated as an issue, Mr. Girvin submitted in his factum that the prosecution stated at the hearing that it would not be relying on section 49 of the PSA and, therefore, it was not fair for the Hearing Officer to ground his decision in that section. Both parties addressed this point in oral argument.

31Based on our review of the transcripts, we find that the prosecution confirmed that it would not be arguing that the appellant’s presentation at the conference constituted secondary employment; however, the prosecution indicated that it would be relying on section 49 of the PSA in relation to secondary activity and conflict of interest.

32Accordingly, we do not find that there was any unfairness associated with the Hearing Officer basing his decision, in part, on the lawfulness of the order on section 49(1) (a) and (b) of the PSA.

Did the Hearing Officer Apply the Correct Legal Test for Discreditable Conduct?

33The Appellant was charged under 2(1)(a)(xi) of the Code, which says:

2(1) “Any chief of police or other police officer commits misconduct if he or she engages in,

(a) Discreditable Conduct, in that he or she,

(xi) acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force which the officer is a member.”

34Mr. Girvin submitted that the Hearing Officer failed to apply the correct legal test for assessing whether the appellant’s conduct was discreditable. Specifically, the Hearing Officer applied a subjective test when he was required to apply an objective one.

35We agree that the test for discreditable conduct is an objective one. The objective test would require that the Hearing Officer place a dispassionate reasonable person fully apprised of the same facts and circumstances, aware of the applicable rules and regulations, in the same situation to assess whether the conduct in question was discreditable. See: Toy v. Edmonton (City) Police Service [2014] A.J. No. 1191 at para. 11 and Mulville and Azaryev and York Regional Police Service, 2017 CanLII 19496 (ON CPC) at para 45.

36We also agree that the Hearing Officer did not apply an objective, reasonable person test when assessing whether Sgt. Mulligan’s conduct was discreditable. Rather, he made the subjective conclusion that members of the public would have been “shocked” to hear a member of the OPP make a presentation in favour of legalising marijuana. At page 22 of his decision, he stated:

I am of the view there is a strong likelihood that members of the public in attendance at the conference would have been shocked to hear a serving member of the OPP speak out against existing legislation he is sworn to enforce. I state this fully aware of the ongoing public debate on the issue at the time. Insp. Andrews walked away from Sgt. Mulligan’s presentation questioning his resolve to uphold this aspect of the law so I can only conclude members of the public would similarly question it. This in itself is evidence to support the behaviour of Sgt. Mulligan was likely to bring discredit upon the reputation of the OPP.

37There was no evidence before the Hearing Officer that members of the public in attendance at the conference were “shocked” to hear Sgt. Mulligan speak in favour of legalising marijuana. Given the very nature of the conference, this could hardly be a reasonable conclusion.

38To have applied an objective test, the Hearing Officer would have needed to analyse and explain why the dispassionate, reasonable person would have determined that the appellant speaking at the conference in favour of the legalisation of marijuana, would likely bring discredit upon the reputation of the respondent.

39Further, the Hearing Officer would have needed to consider the views of the dispassionate reasonable person in the context of the evidence introduced by the defence, evidence which was not refuted by the prosecution, that the majority of Canadians and the federal government supported the legalisation of marijuana. The Hearing Officer did not engage in this type of reasonable person analysis.

40Evidence was presented before the Hearing Officer that in 2012 the majority of Canadians supported the legalisation or decriminalization of cannabis. In our view, it would be unreasonable to conclude that the appellant’s agreement with that position, stated at a conference promoting that position, would amount to discreditable conduct in the eyes of the dispassionate, reasonable person even coming from a police officer.

41Nor did the Hearing Officer engage in this type of analysis in considering whether the appellant’s presentation amounted to his saying that he would not enforce the existing laws, as was the opinion of Insp. Andrews.

42The Hearing Officer’s reliance on Insp. Andrews’ opinion that the appellant gave the impression that he would not enforce the existing laws is problematic. At page 5 of his decision, the Hearing Officer wrote: “As noted, the particulars for discreditable conduct as set out in the Notice of Hearing (NoH) are not in dispute.” The particulars on this charge did not allege that the appellant stated or inferred that he would not enforce the current laws.

43The appellant testified that he did enforce the laws and submitted in argument that the prosecution never put to him the proposition that he somehow insinuated at the conference that he would not continue to enforce the laws. Yet, the Hearing Officer used the opinion of Insp. Andrews as support for his finding that the appellant committed discreditable conduct. Doing so was unfair to the appellant.

Order

44Pursuant to section 87(8) of the PSA the conviction of the appellant for Insubordination is confirmed, and his conviction for Discreditable Conduct is revoked.

45The penalty of the forfeiture of 40 hours for the conviction for Insubordination is accordingly confirmed.