Ontario Civilian Police Commission v. Jaswal, 2021 ONCPC 5

TRIBUNALS ONTARIO Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO Commission civile de l’Ontario sur la police

2021 ONCPC 5

Date: 05-10-2021

Hearing pursuant to section 25 of the Police Services Act, R.S.O. 1990, c. P.15, as amended

Between:

Ontario Civilian Police Commission

Applicant

and

Deputy Chief Uday Jaswal

Respondent

MOTION DECISION

Panel:

D. Stephen Jovanovic, Associate Chair

Appearances:

Ari Goldkind, counsel for Deputy Chief Uday Jaswal

Anthony Moustacalis and Christen Cole, counsel for the Ontario Civilian Police Commission

Place and date(s) of hearing:

By videoconference April 15, 2021

Introduction

1Deputy Chief Jaswal, the respondent, of the Ottawa Police Service (the OPS) was the subject of an investigation by the Commission pursuant to s.25 of the Police Services Act (the PSA) following which he was served with a Notice of Hearing setting out six counts of alleged misconduct under the PSA.

2The first three counts relate to interactions between the respondent and Ms. Jennifer Van Der Zander, an employee of the OPS.

3Counts 4 and 5 relate to interactions between the respondent and an individual referred to as Complainant #2, also an employee of the OPS, who has thus far chosen not to identify herself publicly.

4Count 6 relates to interactions between the respondent and an individual referred to as Complainant #3, also an employee of the OPS, who has also chosen not to identify herself publicly.

5The Commission has brought a motion requesting the following Order:

An order limiting the publication of any identifiers, including broadcasting the face, name, and other details that could serve to identify the complaining witnesses number 2 and 3.

6The Commission relies, in part, on s. 9(1)(b) of the Statutory Powers Procedure Act, R.S.O. c. S. 22 (the SPPA) which reads as follows:

An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(b) intimate personal or financial matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,

In which case the tribunal may hold the hearing in the absence of the public.

7The Commission further submits that the test for granting a publication ban set out in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76 (and discussed further below) has been met. The test for granting a publication ban in Dagenais/Mentuk is as follows:

A publication ban should only be ordered when:

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent risk; and

b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the rights to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

8In support of its motion for the publication ban, the Commission delivered an affidavit from Ian Scott, one of the investigative counsel retained by the Commission in the investigation of the respondent.

9As set out in the affidavit, filed without any objection by the respondent, Mr. Scott spoke with Complainant #2 on April 12, 2021. She indicated that she would like a publication ban for a number of reasons including that she believes if her identity were disclosed there would be a detrimental effect on her psychological health. She has not told her family about the complaint and “most people at work do not know of her complaint.” The complaint was originally made anonymously but then she attached her name to the complaint to stand up for others in a similar situation and in particular Ms. Van Der Zander.

10Mr. Scott further sets out in his affidavit that he spoke with Complainant #3 on April 13, 2021. She indicated that she too would like a publication ban because she is concerned about “internal repercussions affecting either lateral or promotional opportunities with the OPS if her name were to be disclosed as one of the complainants.” She has confided only in three other officers about being a complainant and came forward to support “other women like Ms. Jennifer Van Der Zander.”

11Mr. Scott’s affidavit had two exhibits: the first being an article published in 2020 in Ottawa Life titled “Sheep in Sheep’s Clothing.” The article mentions that there was a leak to the media that numerous other OPS female constables had experienced “years of criminal sexual harassment by male colleagues yet were afraid to come forward for fear it would negatively impact their career or jobs within the service.”

12The second exhibit is one page of the Report of the Independent Police Oversight Review released by the Honourable Justice Michael Tulloch in 2017. At page 155 of the report there is a comment that “[A] member of a police force who complains to their chief about their fellow member’s misconduct may be afraid of potential reprisals.” The second comment notes the need for a review of the process for making internal complaints [by police officers] to ensure there are effective whistleblower protections so that complaints can be made within the chain of command without fear of reprisal.

Analysis

13In my view, the Commission has failed to meet the onus of establishing the need for a publication ban applying the Dagenais/Mentuk test.

14The nature of the allegations against the respondent are the starting point for the analysis. Beginning with Complainant #2, the allegations in the Notice of Particulars (the NOP) are that his conduct amounted to sexual harassment under the OPS Respectful Workplace Policy which defines harassment as including “unwanted sexual attention, physical contact, or offensive, derogatory, abusive or obscene comments, gestures, jokes and writing of a sexual nature.” That Policy includes the definition of workplace sexual harassment under s. 1(1) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 which is: making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

15The NOP alleges that the respondent began in 2011 persistently asking Complainant #2 out for coffee or dinner both during in-person contact and text messages sent to her personal cell phone. This conduct continued in 2013 when the respondent was no longer her Inspector. There was an incident at a Costco store when the respondent complained to her that he was embarrassed because she did not acknowledge his presence and that she could make it up to him by going out for a drink. All of these “dating” overtures, as the respondent has summed up the allegations, were steadfastly declined by Complainant #2.

16The NOP alleges that in 2008, when the respondent was a Staff Sergeant, he asked Complainant #3 if she was attending an OPS social function. She told him that she was not as she was having a mattress delivered to her home. The respondent, again allegedly, asked her if she “would like me to come over and test out that mattress with you.” Complainant #3 declined.

17The first part of Dagenais/Mentuk requires an analysis as to whether the publication ban is necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk.

18I am not satisfied that the Commission has established that such a risk, let alone a serious one, exists in this matter. It is understandable that neither Complainant wishes whatever attention they may face either internally within the OPS or externally, including the internet. They should have an expectation of privacy. However, that expectation of privacy cannot override the open courts/tribunal principle, which is the default principle in trials and administrative hearings.

19There is always the possibility that the Complainants will choose to withdraw their participation from this proceeding. However, that possibility does not, on the evidence before me, amount to a serious risk to the administration of justice.

20As the Commission has not met the first part of the test for a publication ban, it is not necessary for me to deal with the second part i.e., whether the salutary effects outweigh the deleterious effects.

21One of the potentially deleterious effects would be if the Complainants were to face any repercussions for coming forth, either from within the OPS or from elsewhere. Despite the article in Ottawa Life, which in my view was not a proper exhibit to an affidavit, there is no evidence before me of the risk of such actions.

22In my view, the same result would occur if the request for the ban were considered under s. 9(1)(b) of the SPPA. The allegations against the Complainants do not rise to the level of intimate personal matters that would outweigh the desirability of adhering to the principle that hearings be open to the public.

23The Commission did ask for the possible blurring of the Complainants’ images when testifying. Although, there should be no video recording of the hearing, the possibility of screenshots being circulated remains real. The Commission can repeat its request for blurring, so long as the technology allows the parties to fully view all of the witnesses testifying, at the start of the next day’s proceeding.

ORDER

24The Commission’s motion for a publication ban is dismissed.