TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Lourenco v. Toronto Police Service 2023 ONCPC 21

Date: 2023-10-05

File: 21-ADJ-010

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

Between:

M.M., Y.B.

Appellants

and

Adam Lourenco

Respondent

and

Toronto Police Service

Respondent

DECISION

Heard: In Writing

Panel: Laura Hodgson, Vice Chair Emily Morton, Vice Chair Colin Osterberg, Member

Participants: Lawrence Gridin, counsel for Adam Lourenco Jeff Carolin, counsel for Public Complainants Nana Yanful, co-counsel for Public Complainants

Decision written by: Laura Hodgson, E. Morton, C. Osterberg

Introduction

1In its decision B.A., M.M., Y.B. v Toronto Police Service, 2023 ONCPC 14, the Commission revoked the Hearing Officer’s finding that Officer Lourenco was not guilty of discreditable conduct by pointing a firearm at Public Complainants M.M. and Y.B. (count two) and substituted a finding of guilt pursuant to s. 87(8) of the Police Services Act. The Commission also held that it would be appropriate to solicit submissions from parties as to whether it is in the public interest to vary the penalty at this stage of the proceedings and, if so, the appropriate penalty. The Commission later directed the parties to file written submissions on the issue of whether it is in the public interest to vary the penalty at this stage.

2For the reasons that follow, the Commission has determined that in the circumstances of this case it is not in the public interest to continue these proceedings for the purpose of assessing a new penalty.

BACKGROUND

3The facts and history of the proceedings are detailed in the appeal decision (B.A., M.M., Y.B. v Toronto Police Service, supra) and in a motion decision dated December 28, 2022, Toronto Police Service v B.A., 2022 ONCPC 11).

4The charges at issue stemmed from an incident occurring on November 21, 2011. A Notice of Hearing was issued to Officer Lourenco in September 2014. After 36 days of proceedings that spanned over five years, the Hearing Officer’s reasons for disposition were released on January 15, 2021.

5In addition to finding Officer Lourenco not guilty of discreditable conduct for pointing a firearm at the public complainants M.M. and Y.B. (count two), the Hearing Officer found Officer Lourenco guilty of two other counts of misconduct arising out of the same interaction (unlawfully or unnecessarily arresting two of the youth (count one) and excessive force for punching a third youth, B.A. (count three)). The reasons for penalty were issued on April 30, 2021. The Hearing Officer accepted the joint submission of defence and prosecution, and Officer Lourenco received a global penalty of 12 days forfeiture.

6Officer Lourenco appealed from the finding of guilt on counts one and three. The Public Complainants appealed from the Hearing Officer’s decision that Officer Lourenco was not guilty of misconduct for pointing his firearm at Y.B. and M.M. (count two)¹. The Office of the Independent Police Review Director (OIPRD) and Toronto Police Service (TPS) chose not to participate in either of the above proceedings before this Commission.

7In its decision on the misconduct appeals, the Commission agreed with Officer Lourenco that the Hearing Officer erred in his analysis with respect to count one, the unlawful arrest of Y.B and M.M., but nonetheless substituted its own finding of misconduct. While it considered remitting this count for a new hearing, the Commission concluded (at para. 48), “[t]he incident at issue here, however, occurred over a decade ago. Given the excessive delay to date, it would not be in public interest to prolong this matter any further.”

8The Commission confirmed the finding of misconduct with respect to Lourenco’s use of excessive force for punching B.A. (count three).

9As noted, the Commission revoked the Hearing Officer’s finding of not guilty and substitute a finding of guilt on count two. In its decision, the Commission stated:

The incident giving rise to these misconduct proceedings occurred over a decade ago and has been subject to prolix legal proceedings. The Commission has decided, given the substitution of the verdict of guilt for count two, it is appropriate to solicit submissions as to whether it is in the public interest to vary the penalty at this stage and if so the appropriate penalty. (para. 114)

10The Commission directed the parties to file written submissions on the issue of whether it is in the public interest to vary the penalty at this stage.

ANALYSIS

11The Commission has considered the facts, the unique procedural circumstances of this case and the parties’ submissions with respect to additional penalty proceedings. After careful consideration it finds that it is not in the public interest to order a new penalty hearing before the Hearing Officer or before the Commission.

12In his reasons, the Hearing Officer noted that the interaction between the officers and the Public Complainants was a “continuous sequence of events” that “became aggressive in a short period”. With respect to count two, during the brief interaction with the youth, in response to their movement, Officer Lourenco drew and pointed his firearm. He immediately re-holstered when the public complainants stopped moving. The Commission found the Hearing Officer erred in finding that, in the circumstances, Lourenco’s pointing of the firearm did not amount to discreditable conduct for using excessive force. While a separate misconduct, this action was part of a closely connected series of events. This was undoubtably a serious aspect of the Officer’s interaction with the youth. The Commission found this conduct met the elements of discreditable conduct.

13As noted by the public complainants and by the Commission in its motion decision, one of the legislative purposes of the PSA is to enhance public confidence in policing. However, Part V discipline proceedings have also been characterized by the Commission as being employee/employer labour relations matters: see for example Sowa And Durham Regional Police Service, 2017 CanLII 17178 (ON CPC). Here, the Commission notes that, for unexplained reasons, the employer - the Toronto Police Services, chose not to participate in these proceedings. With respect to accountability, the Commission also notes that Officer Lourenco has now faced over a decade of intense media scrutiny with respect to this interaction.

14The question of remedy is further guided by concerns with respect to delay. In its submissions, the Public Complainants suggest that delay is not a consideration as the Hearing Officer, in his reasons for penalty, rejected it as a mitigating factor. We disagree. Firstly, the Hearing Officer while noting that the delay was not procedurally unfair to the appellant, acknowledged that a decade had passed since the misconducts. He ultimately considered “the length of time the officers have had this hanging over their heads” when accepting the joint position on penalty. More importantly, the Hearing Officer’s assessment of delay as a mitigating factor is a wholly different consideration than the issue currently before the Commission - the public interest in continuing proceedings.

15This Commission has previously held that the prejudice of delay can outweigh proceedings being brought to conclusion. In Ardiles and Toronto Police Service, 2016 CanLII 2434, the Commission revoked the Hearing Officer’s finding of guilt but did not order a new hearing. In that case the misconduct occurred five years prior. The Commission emphasized that it did not minimize the importance of public confidence in policing nor did it consider the misconduct (unlawful arrest) to be minor. It concluded, however, that there was unacceptable delay and it would not be in the public interest to prolong the matter (see paras. 40, 41). Similarly in the case of Rose, Arcand, Liburd, Correa, Fuller v. Toronto Police Service, 2018 ONCPC 2, the Commission revoked convictions against the appellant officers but declined to order a new hearing. The events giving rise to those proceedings had occurred over seven years prior.

16In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 142, a majority of the Supreme Court held that while as a general rule reviewing courts ought to remit a matter back to the initial decision-maker for a decision anew, it is not appropriate in all cases. The Court held that concerns such as delay, fairness to the parties, costs to the parties, and efficient use of resources are relevant considerations when determining whether remitting a matter is the appropriate remedy. While the Court’s decision in Vavilov was made in the context of judicial review of administrative decision-makers by courts, we think it is relevant to our function here.

17The Commission finds that now, 12 years after the misconduct and 9 years after the instigation of proceedings against Officer Lourenco, it is not in the interests of justice to order a new penalty hearing below. We also do not think, in these circumstances, it would be appropriate for the Commission to determine the penalty, with respect to count two, ourselves based on the evidence already submitted or to prolong the proceedings further by holding a new penalty hearing before us. In the exceptional circumstances of this case, a penalty hearing is not warranted. We do not intend to minimize the seriousness of the misconduct or the harm caused. However, the Commission is ultimately persuaded by the unfortunate passage of time and the excessive delay that has occurred.

ORDER

18In the unique circumstances of this case, the Commission declines to exercise its discretion under s. 87(8) to remit this matter back to the hearing officer. We also decline to vary the penalty ourselves. As a result, the penalty remains unchanged.

Footnotes

1. 1The Commission’s motion decision, dated December 28, 2022, struck out the portion of the Public Complainant’s factum that sought to appeal from one of the Hearing Officers findings with respect to count one. The Public Complainants also filed a Request for Leave to Appeal Penalty but later abandoned it.