In the Matter of Durham Regional Police Service and Durham Regional Police Services Board under sections 23(1) and 24(1) of the Police Services Act, R.S.O. 1990, c. P.15
ORDER
Order made by: Linda P. Lamoureux, Executive Chair
File: 18-FIL-024
Case Name: Durham Regional Police Service and Durham Regional Police Services Board (Re)
A. Overview:
On January 16, 2019, the Solicitor General requested that the Ontario Civilian Police Commission (“Commission”) conduct an investigation pursuant to s. 25 of the Police Services Act, (“PSA”) into allegations of misconduct by senior members of the Durham Regional Police Service (“Service”) and the ability of the Durham Regional Police Services Board (“Board”) to discharge its statutory responsibilities and provide the proper oversight required for the administration of the Service.
The Solicitor General also requested that the Commission conduct a preliminary review, prior to a formal investigation, to determine which officers of the Service and members of the Board, if any, should be subject to s. 25 investigations into their individual conduct and/or performance of duties.
In response to the request of the Solicitor General, the Commission initiated a preliminary review into the issues identified by the Solicitor General, and to determine which officers of the Service and members of the Board, if any, should be subject to s. 25 investigations into their individual conduct and/or performance of duties.
Based on the information obtained during the course of the Commission’s preliminary review, I am satisfied that the circumstances require a thorough and systematic investigation. As a result, I have decided to initiate a formal investigation, pursuant to s. 25(1) of the PSA, the parameters of which are outlined in detail in the Terms of Reference, dated May 23, 2019.
The Commission’s preliminary review has also revealed a crisis of confidence within the Service, which has the potential to negatively affect policing and, consequently, the communities that the Service and Board serve. In my opinion, this crisis cannot be solely addressed by the Commission’s investigative powers during the duration of the investigation, and this crisis may severely hamper the Commission’s investigative process.
I am, therefore, of the opinion that the crisis of confidence within the Service constitutes an emergency and that the appointment of an Administrator, pursuant to ss. 23(1) and 24(1) of the PSA, to perform the specified functions listed in paragraph 22 hereof is necessary in the public interest.
B. Statutory Framework:
Ontario municipalities, including regional municipalities, are required to provide adequate and effective police services in accordance with their needs1. Municipalities that elect to discharge this duty by establishing a police force bear the fiscal responsibility of maintaining the police force, including operating and capital expenses2, and all the infrastructure and administration necessary for providing such services3.
Under s. 24(1), the Commission may make certain interim orders under s. 23(1) without notice and without holding a hearing, if it is of the opinion that an emergency exists and such an order is necessary in the public interest. One of the possible orders the Commissions may make under s. 23(1) is to appoint an Administrator to perform specified functions with respect to police matters in the municipality for a specified period.
C. Findings:
The Commission’s preliminary review has revealed a deep sense of mistrust in the judgment, integrity, and capacity of the Service’s leadership and the Board’s oversight abilities. This sense of mistrust is widespread within both the sworn officers and the civilian employees of the Service. The most commonly expressed reasons for mistrust are allegations of cronyism manifested as favoritism with respect to a variety of decisions made by the senior administration of the Service. Included are allegations that the senior administration allowed, tolerated, encouraged, participated in, and/or was willfully blind to workplace harassment of all kinds, intimidation of subordinates, retaliatory discipline, and potential alleged criminal conduct and/or misconduct under the PSA.
The Commission does not, at this time, have sufficient information to make findings regarding the merits of these allegations. However, it is clear that the Service’s morale suffers from a prevalent perception that advancement and preferential treatment within the Service is restricted to individuals favoured by certain members of the Service’s leadership. Similarly, the Commission has received considerable and consistent information that these favored individuals, known within the Service as the “untouchables”, are believed to be impervious to workplace harassment complaints, and to allegations of criminal activity and/or misconduct due to their relationship to the Service’s leadership.
Furthermore, there is a widespread belief that the members of the Service who make formal or informal complaints against the “untouchables” are targeted for bullying, harassment, social and professional marginalization, and even formal disciplinary processes. These allegations of retaliatory or suppressive discipline consistently implicate the same members of the Service’s leadership. There is evidence that members of the Service are deterred from reporting workplace harassment because they fear retaliation.
Finally, the Commission has received credible information that suggests certain members of the Service’s leadership might have covered-up, attempted to cover-up, allowed, tolerated, encouraged, or participated in the alleged misconduct or criminal conduct committed by and/or directed towards their subordinates, and that they may have interfered in previous external and internal investigations.
D. Analysis:
Having reviewed the information gathered by the Commission, during its preliminary review, I am of the opinion that the allegations of misconduct have a tangible negative impact on policing and, consequently, the communities that the Service and Board serve. Furthermore, I find that the widespread fear of retaliatory discipline poses a considerable barrier to the success of the Commission’s investigative process.
I find that the Service’s capacity to provide adequate and effective police services is negatively affected by its members’ lack of trust in the Service’s leadership. The majority of the Service’s sworn officers and the majority of its civilian employees do not believe they are treated fairly or with respect. Similarly, there is a widespread view that advancement and treatment within the Service is driven by cronyism and/or favoritism, thereby undermining the chain of command. The members of the Service are further demoralized by what they see as the Service leadership’s unwillingness to deal with, or worse, approval of workplace harassment and a poisonous work environment.
Further, I have serious concerns about the allegations of retaliatory discipline, bullying, and, most importantly, interference in previous investigations. Although unproven, the prevalence of these allegations indicate that there is a widespread and sincerely held belief among certain members of the Service that they will be targeted for reprisal, if they speak out against certain members of the Service’s leadership. I am, therefore, of the opinion that an indeterminate but considerable portion of the members of the Service will be deterred from fully participating in the Commission’s investigative process unless robust protections are put in place to alleviate their fear of reprisal.
It is in the public interest to alleviate the concerns of the Service’s members, specifically that they work in a poisoned work environment and that they will face reprisal activity if they complain about poor treatment, as these concerns and fears may negatively affect the provision of policing services to the Durham Region. In light of the credible allegations that certain members of the senior administration have improperly interfered in previous investigations, it is also in the public interest to mitigate against any potential interference in the Commission’s investigation so that the public can be assured that a full accounting will be achieved.
Based on the above, I am of the opinion that the crisis of confidence within the Service constitutes an emergency, and that the appointment of an Administrator to perform specified functions with respect to police matters, pursuant to ss. 23(1) and 24(1) of the PSA, is necessary in the public interest.
E. Conclusion:
Appointment of Administrator
- Pursuant to ss. 23(1) and 24(1) of the PSA, the Commission will appoint an Administrator for the duration of one year or the length of the investigation, whichever is shorter. The appointment starts on the day the order is made. The Commission also reserves to itself the power to extend or cancel the term of appointment, if necessary.
Attributes
- The Administrator should possess, at a minimum, the following attributes:
a) The Administrator should not have a vested interest in the current situation and can be seen to be free from bias insofar as policing in the Durham Region is concerned.
b) The Administrator must understand that his function is to be limited in time and scope, and is one of oversight and decision-making in select areas;
c) The Administrator is to be knowledgeable in police service matters generally;
d) The Administrator should be a person who will either have or who could gain the respect of the members of the Service including the senior officers, the Board, and the communities the Service serves;
e) The Administrator should aim to minimize disrupting the Service’s operations but recognize that the goals of fairness, transparency, and integrity are paramount when executing his functions.
F. ORDER:
- Further to the above and pursuant to ss. 23(1) and 24(1) of the PSA, I order that an Administrator be appointed to carry out the terms of this Order.
Administrator
- I hereby appoint Deputy Chief Mike Federico, Retired, to be the Administrator with all the powers and responsibilities listed below. Deputy Chief Federico has extensive experience in police leadership because of his 45 years spent within the leadership of the Toronto Police Service and exceeds the minimum attributes required for an Administrator.
Powers and Responsibilities
- Pursuant to s. 23(5) of the PSA, the Administrator will have the following powers and/or responsibilities:
a) The following powers and responsibilities regarding promotions and hiring:
i. The power and responsibility to review any proposed promotion of any member of the Service (i.e. any sworn officer or civilian member), or the hiring and/or contract extension of a Deputy Chief or Chief of Police that is proposed during the Administrator’s term and will have the power and responsibility to either approve the promotion, hiring, or contract extension without delay, or to delay the effective date of a promotion, hiring, or contract extension until a future date, up to and including the conclusion of the Commission’s investigative process, including any potential disciplinary processes that might arise as a result of the investigation. In deciding whether to approve or delay a promotion, the Administrator will be guided by relevant policies of the Service, relevant policies of the Board, any collective agreements, applicable legal precedents, the PSA and its regulations, the needs of the Service, the work experience and training of the employee, the results of any applicable promotional/hiring process, and any appearances of bias or favoritism for or against the proposed candidate.
ii. If the Administrator makes a decision to delay a promotion, the Administrator will notify the proposed candidate, the human resources department, and the Chief of Police of the decision by way of letter. If the decision is to delay the hiring and/or contract extension of a Deputy Chief or Chief of Police, the Administrator will notify the proposed candidate/affected party and the Board of this decision by way of letter, which must explain the rationale for the Administrator’s decision.
iii. If the Administrator makes a decision to delay the effective date of a promotion, he will refer the proposed promotion to the Commission for possible inclusion in the Commission’s investigation.
b) Oversight over all internal disciplinary processes within the Service, and will have the following powers and/or responsibilities:
i. The power and responsibility to review any stage of a complaint initiated by the Chief of Police under s. 76(1) of the PSA that is either initiated or in progress during the Administrator’s term. The Administrator will not review any closed/completed matters.
ii. The power to request that the Commission assign the investigation of a complaint made under s. 76(1) or a hearing in respect of such a complaint to a police force other than the Service.
iii. If the Administrator decides that the investigation should remain with the Service, the power and responsibility to choose which officers within the Service will investigate a complaint initiated under s. 76(1).
iv. The power and responsibility to review the investigation report regarding a complaint initiated under s. 76(1) and make the final determination on whether the complaint is unsubstantiated or if a hearing will be initiated.
v. The final approval regarding an informal resolution of any internal complaint or disciplinary matter. The Administrator must approve the informal resolution proposal for it to be effected.
vi. The power and responsibility to appoint hearing officers for hearings initiated under s. 76(1) that remain with the Service.
vii. The power and responsibility to appoint and instruct prosecutors for hearings in respect of complaints initiated under s. 76(1) that remain with the Service.
viii. The power and responsibility to review complaints and/or disciplinary matters regarding the conduct of civilian employees that are initiated or in progress during the Administrator’s term. The Administrator will have the power and responsibility to determine whether the complaint and/or disciplinary allegations are unsubstantiated and will not review any closed/completed matters.
c) The Administrator will have the following powers and/or responsibilities regarding any public complaint referred to the Chief of Police by the Office of the Independent Police Review Director (“OIPRD”) under s. 61(5)(a) and s. 68(3) of the PSA, subject to the order that the Administrator will comply with any decision or direction from the OIPRD:
i. To review any substantive decision made by the Chief of Police during the Administrator’s term in relation to public complaints referred to the Chief of Police by the OIPRD under s. 61(5)(a) and s. 68(3), and to notify the OIPRD of any concerns the Administrator may have.
ii. To choose which officers within the Service will investigate a complaint referred to the Chief of Police under s. 61(5)(a).
iii. To appoint hearing officers for hearings in respect of complaints referred to the Chief of Police under s. 61(5)(a) and s. 68(3).
iv. To appoint prosecutors for hearings in respect of complaints referred to the Chief of Police under s. 61(5)(a) and s. 68(3).
d) The Administrator will have the following powers and responsibilities regarding secondary activity applications:
i. To review any secondary activity application made by a member of the Service that is initiated or in the process of being reviewed during the Administrator’s term, and will have the power to either approve the application without delay, or to delay the application decision until a future date, up to and including the conclusion of the Commission’s investigative process, including any potential disciplinary processes that might arise as a result of the investigation. In doing so, the Administrator will be guided by relevant policies of the Service, relevant policies of the Board, any collective agreements, applicable legal precedents, and the PSA and its regulations. The Administrator will not review any secondary activities applications already approved and in place.
ii. If the Administrator makes a decision to delay a decision for a secondary activity application, the Administrator will notify the applicant, the human resources department, and the Chief of Police of his decision by way of letter that must include the rationale for the Administrator’s decision.
iii. If the Administrator makes a decision to delay a decision for a secondary activity application, he will refer the proposed secondary activity application to the Commission for possible inclusion in the OCPC’s investigation.
e) The Administrator will report on a monthly basis to the Executive Chair and to advise the Executive Chair about the need to vary or cancel his powers as needed.
f) The Administrator shall have full power and authority to fulfill his mandate and functions, have unimpeded access to the Service’s headquarters and detachments, be given a dedicated work space within any location of the Service upon his request, and have unimpeded access to any and all of the Service’s and the Board’s past and current records as the Administrator may specify for the purposes of this Order.
g) The Administrator will liaise with the Commission’s investigators to ensure the Service’s compliance with its responsibilities vis-à-vis the investigation. The Administrator will also update the Commission’s investigators on his activities and/or observations when requested by the investigators.
h) The Administrator will have the power and responsibility, upon the direction of the Commission, to secure any documents that are summonsed by the Commission. The Administrator will have the power to request summonsed documents from any member of the Service or Board in order to secure the documents.
i) The Administrator will refer any promotional issue, any internal disciplinary issue, and/or any other issue/matter that might, in his opinion, fall under the scope of the Commission’s investigation to the Commission’s investigators.
Reimbursement
- The Durham Regional Police Service shall reimburse the Commission for the remuneration of the Administrator, as well as any costs or expenses related to his administration.
DATED at Toronto, this 23 day of May, 2019.
Linda P. Lamoureux, Executive Chair
TERMS OF REFERENCE: Durham Regional Police Service and Durham Regional Police Services Board Investigation
I. On January 16, 2019, the Ontario Civilian Police Commission (“Commission”) received a request from the Ministry of the Solicitor General (“Solicitor General”) to initiate a preliminary review and then possible investigation pursuant to s. 25 of the Police Services Act, R.S.O. 1990, c. P. 15 (“PSA”) into the conduct of senior members of the Durham Regional Police Service (“Service”) and the ability of the Durham Regional Police Services Board (“Board”) to provide proper oversight of the administration of the Service. Attached to the request were a number of complaints regarding the Service that had been forwarded to the Solicitor General.
II. Based upon the request and information provided and collected, the Commission initiated a preliminary review to determine which senior officers and members of the Board, if any, should be subject to a s. 25 investigation into their individual conduct and/or performance of duties. The review was to also determine if a s. 25 investigation should be initiated into the administration of the Service and to identify any potential systemic issues.
III. On May 23, 2019, the Commission, on its own motion, decided to conduct an investigation pursuant to ss. 25(1)(a) and (b) of the PSA into:
Whether a number of specific promotions were improperly implemented contrary to established policies, practices, and/or procedures, and/or were improperly based on favoritism, cronyism, and/or paybacks.
Whether the Board exercised appropriate oversight regarding the hiring processes and contract extensions of senior officers, including the Chief of Police and Deputy Chief of Police.
Whether a poisoned work environment has been created, encouraged, and/or sustained by the current senior administration of the Service.
Whether the senior administration made decisions that affected operations of the Service, training opportunities for members, and/or disciplinary matters that were improperly based on favoritism, cronyism, and/or paybacks.
Whether the Board is appropriately informed about administration issues relating to its mandate.
Whether the senior administration and/or individuals within the senior administration of the Service allowed, tolerated, encouraged, sustained, committed, and/or were wilfully blind to incidents of workplace harassment/violence and/or workplace sexual harassment/misconduct committed by any member of the Service.
Whether the Service has fair and transparent policies/processes to address incidents of workplace harassment/violence and/or workplace sexual harassment/misconduct, and whether the senior administration is following these policies/processes.
Whether the Board has provided proper oversight concerning complaints regarding a poisoned work environment; complaints regarding workplace harassment/violence and/or workplace sexual harassment/misconduct; how the Service addresses these complaints; and the outcomes of these complaints.
Whether the Chief Administrative Officer (“CAO”) of the Service, Stan MacLellan, then-Deputy Chief, Uday Jaswal, and/or Chief of Police, Paul Martin, acted in an overbearing, intimidating, harassing, and/or tyrannical manner towards sworn and/or civilian members of the Service, and/or allowed, encouraged, tolerated, and/or requested subordinates to act in an overbearing, intimidating, harassing, and/or tyrannical manner towards other sworn and/or civilian members.
Whether Deputy Chief Dean Bertrim provided false testimony under oath while he was a Superintendent in order to gain favour with Chief Martin and/or be rewarded with a promotion.
Whether Chief Paul Martin ever utilized his powers under s. 76 of the PSA to initiate, threaten to initiate, and/or maintain complaints against sworn members of the Service as an improper form of reprisal, intimidation, and/or coercion.
Whether Chief Paul Martin and/or CAO Stan MacLellan engaged in corrupt and/or discreditable practices regarding secondary employment, promotions, and/or pay raises of other members of the Service.
Whether Chief Paul Martin, Deputy Chief Jaswal, and/or CAO Stan MacLellan ignored, covered-up, attempted to cover-up, allowed, tolerated, encouraged, participated in, and/or were wilfully blind to potential and/or alleged criminal conduct and/or misconduct (as defined in the PSA and its regulations) committed by and/or directed towards subordinates.
Whether Chief Paul Martin and/or CAO Stan MacLellan improperly influenced and/or prevented investigations into alleged violations of the Controlled Drugs and Substances Act.
Whether the Board has displayed proper oversight regarding complaints about members of the senior administration of the Service.
IV. Assessment of the above issues shall be conducted with regard to s. 31(4) of the PSA, which provides that police services boards are not to direct chiefs of police with respect to specific operational decisions or with respect to day-to-day operations, and with regard to all other applicable provisions of the PSA and other applicable law.
V. The Commission’s investigation will not interfere with any ongoing proceedings involving complaints regarding workplace harassment, workplace violence, or workplace sexual harassment/misconduct. The Commission will not deliberate on the merits of any legal judgment regarding past complaints.
VI. The Commission may also add and/or amend issues to investigate or named parties to the Terms of Reference at any time throughout the investigation as new information presents itself.
Dated May 23, 2019
Footnotes
- Police Services Act, s. 4(1), (4).
- Police Services Act, s. 39(1).
- Police Services Act, s. 4(3).