Constable Kevin Jacobs v. Ottawa Police Service, 2017 CanLII 62874

ONTARIO CIVILIAN POLICE COMMISSION

DATE: September 22, 2017

CASE NAME: Constable Kevin Jacobs and Ottawa Police Service

FILE: 14-ADJ-004

In the Matter of an Appeal Under Section 87 (1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended

Constable Kevin Jacobs

APPELLANT

-and-

Ottawa Police Service

RESPONDENT

-and-

Mark Krupa

(COMPLAINANT)

RESPONDENT

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair

Hearing Date:

By written submissions

Hearing Location:

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

Representatives:

W. Mark Wallace, Counsel for the appellant Christiane Huneault, Counsel for the respondent Lawrence Greenspon, Counsel for the (complainant) respondent

Overview

1On November 16, 2012 the appellant was found guilty of one count of Unnecessary Exercise of Authority following a hearing before Superintendent Skinner (the Hearing Officer).

2The appellant appealed to the Commission and his principal ground of appeal was that the Hearing Officer applied the wrong standard of proof, i.e. the balance of probabilities rather than the higher standard of clear and convincing evidence. In a decision dated March 25, 2014, the Commission dismissed the appeal and held that the correct standard of proof was the balance of probabilities as applied by the Hearing Officer.

3The appellant brought an application for Judicial Review to the Divisional Court. In a decision dated May 27, 2015, reported at 2015 ONSC 2240, the application was dismissed with the Court agreeing that the correct standard of proof was the balance of probabilities.

4The appellant then appealed this decision to the Court of Appeal. In its decision dated May 10, 2016, reported at 2016 ONCA, the Court set aside the judgment of the Divisional Court finding that in accordance with section 84(1) of the Police Services Act the correct standard of proof was clear and convincing evidence. The Court remitted the matter to the Commission for further consideration in accordance with its reasons.

5The respondent service then applied for leave to appeal to the Supreme Court of Canada, which application was subsequently dismissed. Accordingly, the matter has now returned to the Commission.

6Following a Pre-Hearing Conference, the parties agreed that the appeal should be decided on the basis of the written submissions of the parties rather than by way of another oral hearing. Prompting this decision was the announcement by counsel for the complainant/respondent that his client wished to withdraw the complaint that originated the prosecution.

7Counsel for the appellant filed brief written submissions dated July 19, 2017 asking that the decision of the Hearing Officer be quashed due to the fundamental error she committed by applying the wrong standard of proof.

8Counsel for the respondent service filed brief written submissions dated August 18, 2017. She submitted that the Hearing Officer likely would have arrived at the same decision, convicting the appellant, had she applied the correct standard of proof. Counsel took no position in relation the complainant/respondent’s request to withdraw the complaint and left it to the Commission to decide “how it wishes to proceed in light of the withdrawal of the complaint.”

9Submissions from counsel for the complainant/respondent were received on September 18, 2017. He wrote the following:

Whether the Commission agrees or disagrees with the submission of the Ottawa Police Service and us, it is our submission that the complaint has been withdrawn by Mr. Krupa. The jurisdiction to deal with a withdrawn complaint rests solely with the Chief of Police (section 56(5) Police Services Act). Clearly the Chief does not wish to exercise his jurisdiction to “deal” with this withdrawn complaint any further. As such, the Commission, with respect, has no jurisdiction to deal otherwise.

In light of the complaint being withdrawn, the original disciplinary penalty should be rescinded.

10In reviewing the decision of the Hearing Officer and the decision of the Commission it is not possible to determine whether the result would have been the same if the correct standard of proof had been applied. That would normally result in an order for a new hearing, a result that none of the parties has requested.

11The events giving rise to the complaint, the hearing, the appeal to the Commission, followed by the decisions of three courts, occurred in 2009. The penalty imposed was the forfeiture of 12 days’ time. The complainant/respondent wants to bring this marathon to a close. I can see no reason not to do so.

ORDER

12For all of the foregoing reasons, the Commission pursuant to its authority under section 87(8)(a) rescinds the decision of the Hearing Officer.