TRIBUNALS ONTARIO Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO Commission civile de l’Ontario sur la police
2022 ONCPC 04
Files: 20-ADJ-005 21-ADJ-003
Between:
Ontario Civilian Police Commission
Applicant
and
Deputy Chief Uday Jaswal
Respondent
DECISION ON JURISDICTION
Panel:
Emily Morton, Vice-Chair
Appearances:
Ari Goldkind, counsel for Deputy Chief Uday Jaswal
Anthony Moustacalis and Aiden Seymour-Butler, counsel for the Ontario Civilian Police Commission
Place of hearing:
By Videoconference - Toronto, Ontario
Overview
1The respondent, formerly a Deputy Chief with 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 the investigation, the Commission served him with a Notice of Hearing pursuant to s. 25(4) of the PSA, dated May 20, 2020, setting out six counts of alleged misconduct. The respondent was served with a second Notice of Hearing on April 19, 2021, setting out two counts of alleged misconduct under the PSA while he was Deputy Chief of the Durham Regional Police Service (the DRPS).
2The merits of both matters were set to be heard on February 28 and March 1, 2, 3 and 4, 2022.
3On February 25, 2022, prior to the proceeding commencing, the respondent resigned from the OPS. On March 2, 2022, the Commission orally granted an application to dismiss the counts of misconduct in both Notices on the ground that the Commission is without jurisdiction as the respondent is no longer employed as a police officer within the meaning of s. 2 of the PSA. The following are the written reasons for dismissing the counts.
Issues
i. Has Deputy Chief Jaswal resigned from the OPS?
ii. What is the effect of the resignation on the Commission’s jurisdiction?
Reasons
i. Resignation from the OPS
4The procedural history of these matters is set out in the February 23, 2022, decision of the Commission dismissing the respondent’s application for an adjournment and the March 1, 2022, decision providing reasons for granting a two-day adjournment of the hearing on February 28, 2022, for the purpose of confirming that the respondent had resigned and the effective date of his resignation.
5Prior to the resumption of the hearing on March 2, 2022, the applicant filed affidavit evidence that attached as an exhibit, a copy of correspondence from the Executive Director of the Ottawa Police Services Board (OPSB) dated February 28, 2022. The correspondence indicates that the OPSB’s position is the respondent’s resignation was a clear and unequivocal renunciation of his position with the OPS and was effective as of February 25, 2022. The correspondence states that the OPSB is of the view the respondent is no longer a member of the OPS as of February 25, 2022. The respondent did not challenge the affidavit evidence at the resumption of the hearing on March 2, 2022. Accordingly, the Commission found that the respondent had resigned, the resignation was accepted by the Ottawa Police Services Board and its effective date was February 25, 2022.
ii. Effect of Resignation of Police Officer on the Commission’s Jurisdiction
6The Commission’s jurisdiction to conduct the hearing is set out in s. 25(1) and (4) of Part II of the PSA. Section 25(1) provides:
The Commission may, on its own motion or at the request of the Solicitor General, the Independent Police Review Director, a municipal council or board, investigate, inquire into and report on,
(a) the conduct or the performance of duties of a police officer, a municipal chief of police, an auxiliary member of a police force, a special constable, a municipal law enforcement officer or a member of a board; …
7Section 25(4) of the PSA provides:
If the Commission concludes, after a hearing, that the conduct of a police officer, other than an officer appointed under the Interprovincial Policing Act, 2009, or municipal chief of police is proved on clear and convincing evidence to be misconduct or unsatisfactory work performance, it may direct that any action described in section 85, as specified by the Commission, be taken with respect to the police officer or municipal chief of police or it may direct that the police officer or municipal chief of police be retired if he or she is entitled to retire.
8Section 85 is found in Part V of the PSA and provides for a list of actions a chief of police, municipal police services board or the Commission may take after a finding of misconduct has been proved on clear and convincing evidence. The actions range from dismissal to forfeiture of hours or days off. As noted, the Commission may take any action under s. 85 if a finding of misconduct or unsatisfactory work performance is found following a hearing under s. 25(4).
9The applicant submits, and the respondent does not dispute, that the Commission no longer has jurisdiction to hold a hearing in respect of the respondent’s conduct. The Commission agrees. The respondent is no longer a “police officer” as defined by s. 2 of the PSA:
“police officer” means a chief of police or any other police officer, but does not include a special constable, a First Nations Constable, a municipal law enforcement officer or an auxiliary member of a police force.
10Section 25(1) of the PSA provides the Commission may investigate, inquire and report on the conduct and performance of duties of, inter alia, a “police officer.” Section 25(4) provides the Commission may direct any action specified in s. 85 after concluding, after a hearing, that the conduct of “police officer” is proven to be misconduct or unsatisfactory work performance. Up until his resignation, the respondent clearly fell within the definition of “police officer.” The resignation stopped the investigation process, including the hearing, immediately and the Commission has no jurisdiction to conduct the hearing or deliver a decision (see, for e.g. Izzett v. Toronto Police Service, 2014 OCPC 6 at para. 49; Mitchell v. Ontario Provincial Police, 2012 ONPC 17 para. 37).
11Further, section 90(1) of the PSA clarifies that once a police officer resigns, the disciplinary process in Part V of the PSA ends:
If at any time after a complaint about the conduct of a police officer is made under [Part V] and before the complaint is finally disposed of the police officer resigns no further action shall be taken under [Part V] in respect of the compliant after the date of the resignation.
Section 90(3) of the PSA provides that if a police officer has resigned and is employed by a police force within five years of the resignation date, Part V shall apply to the police officer in accordance with the regulations.
12The applicability of the provisions of s. 90(1) and (3) of the PSA give rise to an interpretive issue as the complaint about the respondent was not made under Part V of the PSA, but rather arose from an investigation under s. 25(1)(a). The two Notices of Hearing allege misconduct contrary to s. 80(1)(a) of the PSA, found in Part V of the PSA. Section 25(4) provides the Commission may impose penalties provided in Part V. The incorporation of s. 85 into a hearing held under s. 25(4) of the PSA links Parts II and V of the statute.
13The applicant, in its written submissions, raises the issue of whether s. 90(1) and 90(3) apply in the context of this s. 25(4) hearing. The Commission agrees s. 90(1) and (3) would apply as Part V penalties are specifically invoked in s. 25(4), linking Parts II and V of the PSA in the context of a s. 25(4) disciplinary hearing. However, it is not necessary to decide on the applicability of s. 90 of the PSA at this stage. The Commission has held the fact the respondent is no longer a “police officer” as defined by s. 2 is dispositive of the jurisdictional issue. The respondent has resigned from the OPS as of February 25, 2022. The Commission has no jurisdiction under the PSA over a former police officer. The resignation has stopped the hearing process immediately and the Commission has no jurisdiction to conduct the hearing or deliver a decision on its merits.
Order
14The six counts of misconduct contrary to the PSA alleged in the Notice of Hearing dated May 20, 2020, are dismissed as the Commission has no jurisdiction to proceed.
15The two counts of misconduct contrary to the PSA alleged in the Notice of Hearing dated April 19, 2021, are dismissed as the Commission has no jurisdiction to proceed.
Dated at Toronto: March 29, 2022
E.Morton