Thornborrow v. Ottawa Police Service, 2018 ONCPC 11

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

CASE NAME: Cst. Thornborrow v. Ottawa Police Services 2018 ONCPC 11

Date: June 20, 2018

File: 17-ADJ-013

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

Between:

Cst. Frederick Thornborrow

Appellant

and

Ottawa Police Service

Respondent

RULING ON APPELLANT’S MOTION

By written submissions

Heard by: D. Stephen Jovanovic, Associate Chair

Participants:

Frederick Thornborrow, appellant, self-represented

Christiane Huneault, counsel for the respondent

Introduction

1On May 29, 2017, the appellant, an officer with the respondent, pleaded guilty to two counts of Discreditable Conduct and one count of Insubordination for failing to serve 17 Provincial Offence Notices (PONs); producing 2 PON warnings when no evidence to support the offences was apparent and; for failing to make notes on 5 PONs. On June 28, 2017, the Hearing Officer accepted the joint submission of the parties, signed by the appellant, and imposed a penalty of a nine-month demotion in rank to Second Class Constable. The appellant was represented throughout the disciplinary hearing process by Pat Laflamme, a labour representative with the Ottawa Police Association.

2A comprehensive Agreed Statement of Facts was filed with the Hearing Officer.

3Notwithstanding the joint submission as to penalty, the appellant filed a Notice of Appeal of the penalty with the Commission on the same day it was imposed. The appellant submitted that he was provided with inadequate representation and that the penalty was not in keeping with penalties in similar situations.

4This decision deals with a motion brought by the appellant to introduce fresh evidence set out in his motion as follows:

1. An addendum to the appellant’s factum;

2. Transcripts of witness/complainant interviews conducted by Ottawa Police Professional Standards Section investigators;

3. Transcript of interview conducted by Ottawa Professional Standards Section of Cst. Frederick Thornborrow;

4. Email communication between Cst. Frederick Thornborrow and Ottawa Police Association members Pat Laflamme, Matt Skof and Ottawa Police Association legal counsel Pamela Machado;

5. Audio recordings of telephone conversations between Cst. Frederick Thornborrow and Ottawa Police Association representative Pat Laflamme.

5The appellant submitted that the fresh evidence will establish that he was not guilty of issuing the PONs without sufficient grounds and that he was provided with “incorrect and misleading” information by Pat Laflamme. However, he has not appealed the convictions but only the penalty imposed. The orders requested by the appellant in this appeal are reduced penalties for each conviction or a demotion to Second Class Constable for a period of four months instead of the nine month demotion ordered by the Hearing Officer. He also seeks an order for the reimbursement of his “full legal costs attributed to this appeal.” As he has not appealed the convictions any proposed “fresh evidence” dealing with the facts underlying the convictions are irrelevant. This motion will be decided accordingly.

6The evidence on this motion comprised the affidavit of the appellant, the draft addendum to the appellant’s factum and three affidavits filed by the respondent from Pamela Machado, Pat Laflamme and Matthew Skof. Pending the outcome of this motion, the parties have deferred cross-examinations on these affidavits. In arriving at this decision I have reviewed all of the proposed fresh evidence.

Disposition

7The motion is allowed in part and the appellant is permitted to serve and file with the Commission only items 4 and 5. His proposed factum, delivered with his motion, is not a factum that complies with the Commission’s Practice Direction, nor is it responsive to the appeal from the penalty imposed. Both parties may deliver revised factums in response to this decision. Items 2 and 3 are not relevant to the penalty appeal, which is the only appeal before the Commission.

ANALYSIS

8The Commission dealt with a similar motion in Bernardon v. Windsor Police Service, 2017 CanLII 37593 (ONCPC) where it acknowledged the four part test for the admission of fresh evidence as set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. The four parts are as follows:

1. The evidence should generally not be admitted if by due diligence, it could have been adduced at trial, although this principle will not be applied with the same strictness in criminal trials as it would be in a civil trial;

2. The evidence must be relevant in that it bears upon a decisive or potentially decisive issue;

3. The evidence must be credible; and

4. The evidence must be such that if believed, it could, when taken with the other evidence adduced at trial, reasonably be expected to have affected the result.

9Bernardon involved a situation where the officer alleged ineffective representation which resulted in an “involuntary” guilty plea. The Commission wrote the following about the application of Palmer in similar circumstances:

The Palmer test cannot be strictly applied in the circumstances of this case. All of the proposed evidence could have been provided had the matter proceeded to a hearing either on the merits of the charge or as part of the submissions during the penalty phase of the proceeding. Palmer is a case involving the admission of evidence in criminal proceedings where the rules of evidence and criminal procedure are necessarily more rigid than in administrative proceedings. Sections 2 and 15 of the Statutory Powers Procedure Act, allow for a more liberal approach to both evidence and procedural matters. In our view, where the proposed fresh evidence goes to the fairness of the hearing process, in this case specifically the voluntariness of the appellant’s guilty plea, the interests of justice would best be served by allowing its introduction.

10Section 87(5) of the Police Services Act allows the Commission to receive such “…new or additional evidence as it considers just.”

11The respondent submits that the proposed fresh evidence does not meet any of the four parts of the Palmer test. However, the cases it cites, other than Bernardon, do not involve a situation where the argument was that ineffective representation of “counsel” resulted in an inappropriate sentence. The respondent is correct that much, if not all of the proposed fresh evidence was available before the hearing with due diligence. However, the evidence was not relevant to any issue before the Hearing Officer given the guilty plea and joint submission on penalty which, according to the appellant, were the results of ineffective representation.

12As indicated above, the proposed addendum to the appellant’s factum does not comply with the Commission’s Practice Direction. More importantly, most of the addendum deals with facts or matters that would be relevant only to an appeal from the convictions. The parties will be given the opportunity of delivering revised factums in accordance with this decision.

13As indicated above, items 2 and 3 are not relevant to the appellant’s penalty appeal, which is the only appeal before the Commission. Accordingly, they do not bear upon any “decisive or potentially decisive issue” in this appeal. Items 4 and 5, deal with the appellant’s communications with Pat Laflamme and are relevant to the appellant’s argument that he had ineffective representation at the penalty stage of the hearing.

ORDER

14The appellant’s motion to introduce items 4 and 5 above as fresh evidence is allowed and the balance of the motion is dismissed. Both parties may deliver revised factums as necessary. The parties requested a further Pre-Hearing Conference following the release of this decision and this will be arranged as soon as is practical by the Commission’s Case Management Officer.