ONTARIO CIVILIAN POLICE COMMISSION
Safety, Licensing Appeals and Standards Tribunals Division
COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE
Division de la sécurité, des appels en matière de permis et des normes
In the Matter of Durham Regional Police Service and Durham Regional Police Services Board under Sections 23(1) and (24) of the Police Services Act, R.S.O. Police Services Act 1990, c. P.15 as amended
Extension of May 23, 2019 Order
Order Made by: Karen Restoule, Acting Executive Chair
File: 18-FIL-024
Case Name: Durham Regional Police Service and Durham Regional Police Services Board (Re)
A. Overview
On May 23, 2019, the Ontario Civilian Police Commission (“Commission”) issued an order (“Original Order”) appointing an Administrator pursuant to its authority under ss. 23(1) and 24(1) of the Police Services Act (PSA), the parameters of which were set out in the Terms of Reference of the same date. The Administrator was to provide specified oversight functions over the Chief of the Durham Regional Police Service (“Service”) and the Durham Regional Police Services Board (“Board”).
The Original Order may be found at 2019 ONCPC 3 and is set to lapse on May 23, 2020.
By way of the Original Order, the Commission appointed Mr. Michael Federico, retired Deputy Chief of the Toronto Police Service, as its Administrator to perform the functions set out in paragraph 22 of that Order. In short, he was vested with the power to review any proposed promotions, disciplinary processes, and secondary activity applications.
That Order was subject to a Judicial Review Application by the Chief and the Board before the Ontario Divisional Court. In a unanimous decision, styled Martin v. OCPC 2020 ONSC 1116 and released on April 6, 2020, the Application for Judicial Review was dismissed.
Based upon a review of the Original Order, the Divisional Court decision, a report from the Administrator, and submissions and affidavits from interested parties, I am of the opinion that a crisis of confidence continues to exist and continues to constitute an emergency within the Service.
Accordingly, I am of the opinion that the extension of the appointment of an Administrator, pursuant to ss. 23(1) and 24(1) of the PSA, to perform the specified functions listed in paragraph 28, is necessary until the completion of this calendar year ending on December 31, 2020.
B. Statutory Framework
Ontario municipalities, including regional municipalities, are required to provide adequate and effective police services in accordance with their needs.1 Municipalities that elect to discharge this duty by establishing a police service carry the fiscal responsibility of maintaining the police service, including operating and capital expenses, and all the infrastructure and administration necessary for providing such services.2
Under ss. 24(1), the Commission may make certain interim orders under ss. 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. Pursuant to this authority, the Commission made the Original Order and appointed an Administrator to perform certain tasks set out in that Order.
C. Findings
- I have reviewed the following material:
(a) reports by Administrator Mr. Federico and Commission counsel Ms. Astrid Arzu;
(b) Letters from counsel Mr. Peter Brauti and DRPS Association president Mr. Colin Goodwin;
(c) Submissions with accompanying affidavits from Mr. Ian Johnstone, counsel for the Service;
(d) The Martin decision, and associated Record of Proceedings.
After a review of that material, I conclude there is evidence upon which I can find that the Original Order ought to be extended until December 31, 2020.
Specifically, that evidence is:
a. The investigation into the allegations set out in terms of reference is far from complete. After the appointment of the Administrator, many of the witnesses have come forward incrementally as word of the investigation has spread.
b. There are still outstanding disciplinary files. In particular, the Whiteway file has not been resolved.
c. While many interviews have taken place, there are still more than thirty individuals who have come forward and wish to be interviewed.
d. The Administrator acts as a safeguard so that witnesses can come forward without fear of reprisal.
e. If the Original Order is not extended, the Service employees who wish to speak to the investigators may not do so due to fear of reprisal.
f. Members of the Durham Regional Police Association have had increased confidence in the disciplinary process since the beginning of the Administrator’s mandate, even though some of the penalties issued have been more severe.
g. The Administrator and Senior Command have a working relationship.
h. The investigation team used to go to the Durham area and conduct their interviews. Since the commencement of the COVID-19 lockdown, interviews are now conducted remotely. While a remote approach is necessary in order to uphold public health and safety, it is a more cumbersome and slow process, particularly when the interviewees refer to documents.
i. The team has received thousands of pages of documents from witnesses. However, it has yet to make a request, receive and review many more documents in possession of both the Service and the Board relevant to the investigation.
j. The subjects of the complaints, including Chief Martin, CAO MacLellan, former Deputy Chief Uday Jaswal and the Durham Regional Police Service Board members have yet to be interviewed. The investigative team is of the view these interviews should be conducted in person and, accordingly, will not take place until permitted by law.
k. The Investigative team anticipates it will need until the end of the calendar year to complete the interviews and review documents. It will then write and finalize a report.
D. Analysis
- The question of whether the Commission properly issued an interim order appointing an Administrator without notice and without a hearing was front and centre in the Judicial Review Application. The unanimous reasons of the Divisional Court focused on whether that decision was a reasonable one within the statutory context of s. 24 of the PSA. The Court analyzed the issue of reasonableness under two criteria: first, did an emergency exist; and, second, was an interim order necessary in the public interest. I intend to do the same under those headings.
Emergency
With respect to the first issue of whether or not an emergency exists within the Service, the Martin Decision addressed this point at paragraphs 64 to 70. At para 64, it stated that an emergency in the context of the PSA “must be a policing emergency where, if decisive action is not taken, there is a reasonable apprehension of danger or the approach or imminence of danger”.
In concluding there was evidence before the Commission upon which it could reasonably find that decisive action was required to prevent serious pending or apprehended harm, the Court considered the importance of maintaining the chain of command, the requirement that officers trust their leadership, the corrosive effect of fear of reprisals, and the polling data which supported a widespread distrust of leadership. The Service questioned the methodology and conclusions of the polling data in its submissions and affidavits. Without resolving the issue of the value of the polling data, it provides some evidence of widespread distrust of leadership.
I am of the opinion that there is evidence to support a conclusion that a state of emergency continues to exist in the Service. The work of the investigators has not been completed and there continues to be concerns of reprisals potentially leading to reluctant witnesses if the Administrator’s appointment were to lapse.
With respect to the length of time the Administrator’s appointment ought to be extended, the investigators are of the view that they ought to be able to complete interviews by the end of the calendar year, on the assumption that COVID-19 restrictions are eased.
Public Interest
With respect to the public interest criterion, the Divisional Court decision addressed this issue at paragraphs 71 to 79 and provides guidance on how to assess this concept. First, there must be a proper factual foundation for any determination that a prescribed action is in the public interest. Second, the Commission’s discretion is limited to the general purpose of the PSA which is to “increase public confidence in the provision of police services”. Third, part of increasing public confidence is the fulfilment of the Commission’s role, which is to provide oversight to police services.
At para 74, the Court articulated three factors which will influence a decision whether an interim order is necessary in the public interest: one, the nature and quality of the evidence disclosing a prima facie case of a problem requiring immediate action; two, the seriousness of the risk; and three, the impact on its subject. There must be a balance between the need for an interim order and the consequences to the subject.
In addressing the first of the three factors, the Divisional Court decision concluded the first one was satisfied by virtue of its reasoning under the considerations that form part of the discussions on whether an emergency exists. The apprehension of a crisis of confidence with the Service required immediate action. As discussed above, I have come to the same conclusion. There is evidence to support a conclusion that a state of emergency continues to exist in the Service.
In my view, there have been no material changes with respect to the other two factors and I adopt the analysis set out in the Divisional Court decision. The Chief’s core duties have not been stripped. There is also no evidence of any impact on the Board’s functions.
At paras. 77-78, the Divisional Court decision held that the following were proper considerations for the Commission on the issue of public interest: the serious risk that a considerable portion of the members of the Service would be deterred from participating forthrightly in the investigation unless robust protections were put in place to alleviate the fear of reprisal, and the need to protect against potential interference in the Commission’s investigation so that the public can be assured that a full accounting will be achieved.
The evidence summarized above is consistent with the considerations found to be relevant to the public interest criterion in the Martin decision – the investigation is not complete and many more witnesses will be interviewed. The Administrator acts as a safeguard so that witnesses can come forward without fear of reprisal.
Based on the above, I am of the opinion that the crisis of confidence within the Service continues to constitute an emergency, and the extension of the Administrator’s appointment to perform specified functions with respect to police matters, pursuant to ss. 23(1) and 24(1) of the PSA continues to be necessary in the public interest.
E. Conclusion:
Appointment of Administrator
- Pursuant to ss. 23(1) and 24(1) of the PSA, the Commission is extending the appointment of an Administrator until December 31, 2020, or the length of the investigation, whichever is shorter. The Commission also reserves to itself the power to extend or cancel the term of appointment, if necessary.
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 extend the appointment of Deputy Chief Mike Federico, Retired, as the Administrator with all the powers and responsibilities listed below. Over the last year, he has proven himself to exceed the minimum attributes required for an Administrator.
Powers and Responsibilities
- Pursuant to s. 23(5) of the PSA, the Administrator will continue to 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 effective.
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 continue to 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 continue to 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 continue to 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 continue to liaise with the Commission’s investigators to ensure the Service’s compliance with its responsibilities vis-à-vis the investigation. The Administrator will also continue to update the Commission’s investigators on his activities and/or observations when requested by the investigators.
h) The Administrator will continue to have the power and responsibility, upon the direction of the Commission, to secure any documents that are summonsed by the Commission. The Administrator will continue to 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 continue to 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.
DATED at Toronto, this 22nd day of May, 2020.
Karen Restoule, Acting Executive Chair
Tribunals Ontario