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: Cameron (No. 2) v. Durham Regional Police Service, 2018 ONCPC 9

Date: April 4, 2018

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

Between:

Cst. Ian Cameron

Appellant

and

Durham Regional Police Service

Respondent

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair

Appearances:

Joshua Phillips, counsel for the appellant

Ian Johnstone and Alex Sinclair, counsel for the respondent

Place and date of hearing:

(by teleconference) Toronto, Ontario March 26, 2018

Overview

1By way of a decision dated December 22, 2017, the Commission dismissed a motion brought by the respondent requesting an order dismissing the appeal on a number of grounds. As that decision dealt only with the motion and not directly with the merits of the appeal, the parties were given the opportunity to make further submissions.

2During a subsequent teleconference, counsel for the parties were asked to discuss and if possible agree on the terms of what would be a consent order that would dispose of the appeal. While they both acknowledged that the order should provide for a hearing under Part V of the Police Services Act (the PSA) they could not agree on the terms of the order. Accordingly, I received further submissions from counsel during another teleconference.

3The full background to this matter is set out in the earlier Commission decision found in Cameron v. Durham Regional Police Service, 2017 ONCPC 18. To briefly summarize, the appellant had pleaded guilty to one count of Discreditable Conduct under the PSA following a conviction for assault. The Hearing Officer, in a decision dated May 1, 2014 ordered that the appellant be demoted in rank from a First Class Constable to a Second Class Constable for a period of two years. Thereafter, he would be reinstated to his former rank if he satisfied a number of conditions.

4The Hearing Officer wrote the following:

In the event of an unsatisfied, or unsuccessful, completion of these assignments and/or unsatisfactory performance reviews, Constable Cameron may be subject to further charges under the Police Services Act and/or other discipline procedures up to and including dismissal.

5On September 5, 2015, the appellant was suspended under section 89 of the PSA when it was alleged that he reported for duty with a breath sample indicating he had over the legal limit of alcohol in his system. The respondent took the position that this suspension interrupted the running of the two year period of demotion imposed by the Hearing Officer and therefore refused to reinstate the appellant to his former rank in May 2016. A disciplinary hearing over the September 5, 2015 incident has not yet been held.

6The appellant first took the position that the failure of the respondent to reinstate him to the rank of First Class Constable was a violation of his Association’s collective agreement with the respondent and filed a grievance. The arbitrator found otherwise in writing “The continuation of the demotion, therefore, in its essential character, is disciplinary under Part V of the PSA [and] I must find that I do not have jurisdiction to deal with the grievance”. The parties no longer dispute that the issue of the reinstatement is in fact disciplinary.

7The appellant has proposed a four paragraph order to dispose of the appeal. The respondent did not agree with the following two paragraphs: [The Commission]

b) strike down the disciplinary penalty imposed against the appellant, being the extension of his demotion to Constable Second Class beyond May 1, 2016;

d) order that the Durham Regional Police Service take no further action to implement any penalty (including the reduction of pay associated with the demotion to Constable Second Class beyond May 1, 2016) related to the alleged misconduct.

8These two paragraphs are similar to those ordered by the Commission in Richardson v. Ontario Provincial Police, 2012 ONCPC 7 which was another situation where discipline was imposed without a hearing first being held under the PSA.

9In Macdonell v. Ontario Provincial Police, 2017 CanLII 37620 (ONCPC), the officer was transferred twice to different detachments for what was originally stated to have been operational reasons. The officer appealed to the Commission arguing that the transfers were “disguised” discipline imposed without the necessary PSA hearing. The OPP agreed at the outset of the hearing of the appeal that the transfers were in fact disciplinary.

10The officer sought an order from the Commission canceling the transfers and compensating for lost wages, specialty pay and loss of overtime pay because of the “illegal disciplinary action” taken by the OPP. The Commission declined to do so as such an order would be premature as the merits of the disciplinary action had not yet been determined.

11The appellant has submitted that if the discipline in this matter, being the refusal of the respondent to reinstate him to his former rank were not set aside he would be prejudiced at any subsequent hearing. He submitted that any Hearing Officer would be open to the argument that there was a reasonable apprehension of bias, given his or her appointment was made by the Chief of the respondent who was the one responsible for imposing the discipline.

12In my view, for the reasons set out in Macdonell above, the proper disposition in this matter is to direct a hearing to determine the propriety of the respondent’s refusal to reinstate the appellant to his former rank at the two year point as decided by the Hearing Officer. If he succeeds at that hearing he will be compensated for any financial losses. I do not accept the appellant’s submission that any Hearing Officer so appointed could be successfully challenged on the basis argued by the appellant. The appointment of Hearing Officers is the statutory function of a Chief of Police under the PSA. Unless there is something personal to the particular Hearing Officer so appointed in this matter, the fulfilling of that statutory function by the respondent’s Chief of Police does not support a claim for bias even in the circumstances of this matter.

13There were minor differences in the wording proposed by counsel in the two other paragraphs of their draft orders. These are resolved by the following order.

Order

14The Commission therefore orders the following:

a) Pursuant to section 78(1) of the PSA, the Chief of Police of the respondent is directed to hold a hearing under Part V of the PSA into the alleged misconduct of the appellant, specifically to determine whether the appellant has failed to meet or comply with the conditions imposed by Hearing Officer Kelly in his decision dated May 1, 2014 and as a result should be subject to the continuation of his demotion to the rank of Second Class Constable beyond May 1, 2016.

b) The appeal presently before the Commission, which was brought under section 87(1) of the PSA, is dismissed without prejudice to the appellant’s right to appeal from the final decision of a hearing officer following the hearing referred to above.