TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Harrison v. Toronto Police Service, 2021 ONCPC 14

Date: 2021-11-01

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

Between:

Cst. Sean Harrison

Appellant

and

Toronto Police Service

Respondent

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair Jesse Boyce, Member Laura Hodgson, Vice-Chair

Appearances:

Lawrence Gridin, counsel for the appellant Mattison Chinneck, counsel for the respondent

Place and date of hearing:

Videoconference - Toronto, Ontario June 17, 2021

Introduction

1This appeal arises from the decision of Inspector Shaun Narine (the Hearing Officer) dated July 27, 2020 whereby the appellant was found guilty of one count of insubordination contrary to s. 2(1)(b)(ii) of the Code of Conduct, O.Reg. 268/10, pursuant to the Police Services Act (the PSA).

2The particulars in the Notice of Hearing (the NOH) were as follows:

Being a member of the Toronto Police Service, you were attached to PRIME, assigned to uniform duties.

On March 17, 2018, while on duty, you conducted a query through the police computer systems of a vehicle licence plate AJCH265. The query was not for official police business.

These actions [are] in direct contravention of Service Governance – Standards of Conduct which states;

1.19 Use of Computers and Telecommunications

Members shall:

(a) Use Service telecommunication systems and equipment only for police business;

In doing so, you committed misconduct in that you without lawful excuse disobey, omit or neglect to carry out a lawful order.

3In a second decision, dated November 20, 2020, the Hearing Officer assessed a penalty of the forfeiture of three days or 24 hours pay. There is no appeal of the penalty.

Disposition

4For the reasons that follow, the decision of the Hearing Officer is confirmed and the appeal is dismissed.

OVERVIEW

5There was no dispute before the Hearing Officer that the appellant ran the Canadian Police Information Centre (CPIC) query as set out in the NOH. The licence plate check was on a vehicle owned by the appellant’s wife which he had driven to work that day and parked in a lot near the station. The question was whether the appellant did so for Toronto Police Service (TPS) business. The prosecution called Sgt. Gales of the TPS as its only witness.

6The day before he ran the check, the appellant had a discussion with Sgt. Gales, who also was assigned to the Communications Unit. Sgt. Gales had received a telephone call from a TPS dispatcher about a vehicle, registered in the name of the appellant’s wife, that had been left idling in the parking lot. The appellant was told by Sgt. Gales that he should not leave the vehicle idling, to which he responded that he had a medical authorization allowing him to do so. The authorization allowed the appellant to warm up the car before entering it.

7The appellant, immediately after he ran the check the next day, approached Sgt. Gales and told her what he had done and showed her the result. Sgt. Gales advised him that he could be penalized for misusing CPIC. The appellant then stated to her that he would “take the hit for this because it was worth it.”

8The appellant also told Sgt. Gales that he accessed CPIC in order to determine if civilian dispatchers had run the CPIC check on his wife’s vehicle the day before. He indicated that he had an “ongoing issue with respect to certain call takers” for over ten years. Sgt. Gales denied that the appellant had told her that he ran the check to investigate a “campaign of harassment” and the improper use of CPIC. Sgt. Gales then asked the appellant, “Is this the fight you want to have with them?”

9Sgt. Gales satisfied herself that none of the official police investigations that the appellant was conducting involved his wife’s vehicle and she reported him for the improper use of CPIC. The CPIC records showed that the vehicle check of March 16, 2018 had in fact been carried out by a civilian TPS dispatcher who made the notation that the vehicle had been involved in a “suspicious incident.”

10The appellant’s defence at the hearing, in part, was that he ran the vehicle check because he was engaged in an investigation of the unauthorized use of CPIC by civilian members of the service in breach of TPS directives.

11The defence called one witness at the hearing, Detective Rambharack, who was the Unit Complaints Coordinator at the TPS Communications Unit. The defence had brought a pre-hearing motion requesting production/disclosure of the notes of two TPS officers, one of which was Detective Rambharack, for two specific dates in April and May 2015. The motion was dismissed by the Hearing Officer. Detective Rambharack, in his examination-in-chief, was asked about a conversation he had with the appellant in April 2015. When he could not recall the conversation, the defence asked for his notes for that day. The prosecution objected on the basis that the relevance of the notes had been decided by the earlier motion and the Hearing Officer upheld the objection on that basis.

12The two rulings are the centrepiece of the appellant’s appeal and will be discussed later in these reasons.

13The Hearing Officer concluded that the appellant conducted the CPIC search for personal reasons and not for official police business, in contravention of s. 1.19 of the Service Governance – Standards of Conduct and was therefore guilty of insubordination.

ISSUES

14In oral submissions before us, the appellant indicated this matter was a one issue appeal, i.e., whether the CPIC query was for police purposes. Integral to that issue, however, was whether the appellant was denied procedural fairness when the Hearing Officer dismissed the production/disclosure motion and ruled against the appellant questioning Detective Rambharack about a 2015 interaction between the two of them.

15The respondent submitted that the issue was whether the Hearing Officer’s reasons on the motion and the evidentiary ruling were adequate. As the appellant acknowledged that he was not questioning the adequacy of the reasons, there is no need to deal with these two issues.

16The three issues that in our view are raised by this appeal are: 1) the applicable standard of review; 2) the procedural fairness issue encompassing the two procedural/evidentiary decisions of the Hearing Officer and; 3) the reasonableness of the finding of insubordination.

ANALYSIS

The Standard of Review

17The standard of review applied by the Commission when considering an appeal of a decision of a hearing officer is reasonableness on questions of fact and correctness on questions of law: Ottawa Police Service v. Diafwila, 2016 ONCA 2017. Questions as to whether facts satisfy a legal test are questions of mixed fact and law and are to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Floria v. Toronto Police Service, 2020 ONCPC 6; Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 53.

18There is no need, however, to conduct an assessment of the standard of review with respect to issues of procedural fairness or a breach of the rules of natural justice. Whether a decision-maker has complied with his duty of procedural fairness or has breached the rules of natural justice is reviewed on the standard of correctness.

The Procedural Fairness of the Hearing Officer’s Rulings

19The factual basis for the appellant’s motion for the disclosure/ production of the notes of Detective Rambharack was a conversation the two of them had in April 2015. Detective Rambharack called the appellant to notify him about a “complaint of disaffection” to another member. The appellant asked Detective Rambharack to open an investigation into dangerous driving and unauthorized use of CPIC by James Melanson, the senior supervisor of TPS Communications. The appellant believed that Mr. Melanson had run a check on his licence plate on behalf of another civilian member of TPS Communications. No investigation was launched into that incident.

20The Hearing Officer dismissed the motion on the rationale that the actions or inactions of Detective Rambharack in 2015 were not relevant to the charge before him.

21The appellant submitted in his factum that there were five reasons why the requested disclosure was relevant, although not all were advanced in oral submissions. For the sake of completeness, the five were as follows:

• His anticipated testimony about why he ran the 2018 check would be corroborated;
• The notes could be used to rebut the prosecution’s allegations of recent fabrication;
• The notes would be relevant to a defence of targeted enforcement;
• The TPS failed to investigate the misconduct and the appellant’s investigation could amount to a lawful excuse;
• The notes would be relevant to the issue of penalty if the appellant were found guilty of insubordination.

22We see no error in the Hearing Officer’s ruling that the notes requested were not relevant. The appellant did not testify and the Hearing Officer did not deal with any allegation by the prosecution of recent fabrication. The appellant did not provide us with any submissions as to the defence of targeted enforcement or how the lack of an investigation by the TPS could amount to a lawful excuse. There is no appeal from the penalty imposed so presumably the appellant was content with the penalty.

23We agree with the Hearing Officer’s decision as to relevance of the notes which might have confirmed a request by the appellant three years earlier to commence an investigation. The issue before the Hearing Officer was whether the CPIC check in 2018 was for police business, which was the issue he ultimately decided.

24We reach the same conclusion regarding the objection made by the prosecution to the questioning of Detective Rambharack about the 2015 conversation he may have had with the appellant. The conversation was not relevant to the charge of insubordination.

25The appellant also submitted that the Hearing Officer’s denial of procedural fairness was exemplified by what he wrote at para. 142 of the decision which reads as follows:

Defence in both their Examination-in-Chief and Cross-Examination of the witnesses submitted the failure by the witnesses to take the necessary investigative breaches to the PSA as alleged by PC Harrison that spanned back to 2015. No direct evidence presented by the Defence, or testimony by PC Harrison was put forth to validate that any other evidence existed to substantiate these allegations. This evidence if it did exist, spoke to actions of the witnesses that are outside the four corners of he Notice of Hearing, and not to the charge of Insubordination against PC Harrison.

26The appellant submitted that he attempted to introduce that very evidence but was denied the ability to do so by the Hearing Officer’s procedural rulings. However, in our view, the Hearing Officer, by the last sentence in this paragraph, confirmed his earlier rulings that this evidence was not relevant.

The Reasonableness of the Finding of Insubordination

27On March 16, 2018, the appellant was advised by Sgt. Gales that a civilian TPS dispatcher complained about the idling vehicle registered in the name of the appellant’s wife. It does not appear that he asked Sgt. Gales how the dispatcher knew that information. There was no evidence to suggest that the appellant responded by requesting that an investigation be conducted into how the dispatcher knew that information. Likewise, there is no evidence to suggest that the appellant advised Sgt. Gales that he was going to conduct his own investigation.

28The appellant did not file a complaint form against the dispatcher, or anyone else on that day, which filing would have triggered an investigation. When he showed his computer terminal with the CPIC check to Sgt. Gales the next day, she advised him that there would be penalties involved for the misuse of CPIC. The appellant said that “he would take the hit because it was worth it.” There was no evidence to suggest that he advised Sgt. Gales that he ran the check for police business. He did not file a complaint subsequently, which could have substantiated his position that he was conducting a police investigation. It is not clear when the appellant first took the position that the CPIC check was for police business rather than for personal reasons.

29The Hearing Officer decided that the CPIC check was for personal reasons and not police business. In our view, this was a finding open to the Hearing Officer to make and we are not satisfied that this was an unreasonable conclusion.

ORDER

30Pursuant to section 87(8)(a) of the PSA the Commission confirms the finding of guilt for insubordination and the appeal is dismissed.