TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Gannon v. Windsor Police Service, 2024 ONCPC 28

Date: 2024-03-18

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

Between:

Sergeant Christian Gannon

Appellant

and

Windsor Police Service

Respondent

DECISION

Panel:

Colin Osterberg, Vice-Chair Emily Morton, Vice-Chair Laura Hodgson, Vice-Chair

Appearances:

J. Mulcahy, Counsel for the Appellant A. Sinclair, Counsel for the Respondent O. Moody, Counsel for the Respondent

Place and date of hearing:

Videoconference – December 20, 2023

Introduction

1In a decision dated January 19, 2023 (“Misconduct Decision”), by Superintendent Morris Elbers (the “Hearing Officer”), Sergeant Christian Gannon (the “Appellant”) was found guilty of:

a. Count 1: unlawful or unnecessary exercise of authority under s. 2(1)(g)(i) of the Code of Conduct contained in O. Reg. 268/10 (“Code of Conduct”) under the Police Services Act, R.S.O. 1990, c P.15 (the “PSA”); and

b. Count 2: neglect of duty under s. 2(1)(c)(i) of the Code of Conduct.

2In a decision on penalty dated March 24, 2023 (“Penalty Decision”), the Hearing Officer imposed the following penalty:

a. The Appellant is demoted from sergeant to First Class Constable for a period of three months and upon completion of the three month term will be reinstated to Sergeant at the same pay level that he was before his demotion; and

b. The Appellant will attend a refresher training session on arrest procedures conducted by the Windsor Police Service Training Unit and any other training sessions deemed appropriate by the management of the Windsor Police Service.

3Pursuant to s. 87(1) of the PSA, the Appellant has appealed the Misconduct Decision and the Penalty Decision to the Ontario Civilian Police Commission (the “Commission”).

PRELIMINARY ISSUE

4The Appellant brought a motion to adduce additional evidence which was heard at the commencement of the hearing. The evidence consisted of an affidavit of the former Windsor Police Association President which states that, after the Penalty Decision was released to the parties, the Deputy Chief of the Windsor Police Service (“WPS”) had private communications with the Hearing Officer, in the absence of the Appellant, with respect to the proper interpretation of the penalty imposed on the Appellant.

5In particular, the Penalty Decision dated March 24, 2023, included a three-month demotion and provided that, if annual leave time is taken during that period of time, it would be added to the three-month period. The Appellant wished to adduce evidence that on March 31, 2023, the Deputy Chief disclosed that he had confirmed with the Hearing Officer that “annual leave time” included sick time.

6Section 87(5) of the PSA allows the Commission to receive new evidence as it considers just. The test for the admission of new evidence is set out by the Supreme Court of Canada in R. v. Palmer, 1979 CanLii 8 as follows:

a. The evidence should generally not be admitted if, by due diligence, it could have been obtained at trial provided that this general principle will not be applied as strictly in a criminal case as in a civil case;

b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

c. The evidence must be credible in the sense that it is reasonably capable of belief; and

d. It must be such that if believed it could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result.

7The Ontario Court of Appeal in Re Keeprite Workers’ Independent Union et al. and Keeprite Products, 1980 CanLii 1877 (C.A.) held that, in rare and exceptional circumstances, affidavit evidence may be admitted either to show a complete absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record.

8The Appellant argues that the fact that the Deputy Chief had private communications with the Hearing Officer about the penalty “to be imposed” on the Appellant will reasonably be expected to affect the results of the hearing of the appeal. However, the new evidence relates not to the penalty to be imposed, but the penalty that had already been imposed.

9The Appellant suggests that the communications that took place expanded the penalty to include sick time taken during the period of demotion.

10We do not agree. The penalty imposed did not change as the result of the communications. There was no amendment made to the Penalty Decision and no addendum issued by the Hearing Officer. The Hearing Officer’s comments to the effect that annual leave includes sick time was made after the Penalty Decision was issued and has no impact on the effect of the Penalty Decision. We also find that the proposed evidence of a conversation that occurred after proceedings had concluded and the hearing officer was functus does not disclose a breach of natural justice or an apprehension of bias on the part of the Hearing Officer.

11We found the new evidence to be irrelevant to the issues in the appeal and dismissed the Appellant’s motion.

DISPOSITION

12For the reasons that follow:

a. the decision of the Hearing Officer finding the Appellant guilty with respect to the charge of unnecessary exercise of authority is confirmed pursuant to s. 87(8)(a) of the Act;

b. the decision of the Hearing Officer finding the Appellant guilty with respect to the charge of neglect of duty is revoked and a new hearing is ordered pursuant to s. 87(8)(c) of the Act; and

c. the penalty decision is revoked and a new hearing is ordered pursuant to s. 87(8)(c) of the Act.

Overview

13The incident which gave rise to the charge against the Appellant occurred on December 20, 2019. On that date, WPS was conducting surveillance on a residence in the City of Windsor. The public complainant (PC) and his brother left their residence, went to a Shoppers Drug Mart, and were both arrested and placed in handcuffs by the Emergency Task Force Unit (ETFU) in the parking lot shortly after leaving the Shoppers Drug Mart. The Appellant arrived at the scene shortly after the arrest. By that time the Appellant and the ETFU had received information that the PC was not the person who was the subject of the investigation and should not have been arrested. However, the arrest continued for another nine to ten minutes while the PC was interviewed, and further investigation was conducted.

14The Hearing Officer found that the PC should have been released and the handcuffs removed immediately when the Appellant was made aware that the PC was not the intended target and that the wrong person had been arrested. Having failed to do so, the Appellant was found guilty of unlawful or unnecessary use of authority under s. 2(1)(g)(i) of the Code of Conduct.

15In addition, no one gave the PC his rights to counsel. The Hearing Officer found that it was the Appellant’s responsibility to have given the rights to counsel and found the Appellant guilty of neglect of duty under s. 2(1)(c)(i) of the Code of Conduct.

The Standard of Review

16The standard of review applied by the Commission when considering an appeal from the decision of a hearing officer is reasonableness on questions of fact and correctness on questions of law: Ottawa Police Service v. Diafwila, 2016 ONCA 627. 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: Cst. Ioan Floria v. Toronto Police Service, 2020 ONCPC 6; Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 53. Findings of fact and credibility assessments made by a hearing officer are owed particular deference: Toronto Police Service v. Blowes-Aybar, 2004 CanLii 34451 (Ont. Div. Ct.).

17The Appellant alleges that the following errors were made by the Hearing Officer in the Misconduct Decision:

a. Engaging in “cutting and pasting” from other decisions;

b. Finding that unlawful detention amounts to misconduct under s. 2(1)(g)(i) of the Code of Conduct;

c. Failing to consider whether there was “good and sufficient cause” for the arrest;

d. Erring in law as to his approach to detention;

e. Ignoring relevant evidence including the Appellant’s evidence;

f. Misstating evidence;

g. Admitting into evidence the notes and duty reports of officers who were not called as witnesses at the hearing;

h. Relying on his own expertise without notice to the parties of his intention of doing so and where that expertise was contrary to the evidence presented at the hearing;

i. Considering allegations which were not made, or which were materially different than those set out in the Notice of Hearing;

j. Failing to consider the constituent elements of neglect of duty under s. 2(1)(c)(i) of the Code of Conduct;

k. Failing to address who had the duty to provide rights to counsel;

l. Ignoring defences to the allegations that were raised;

m. Taking an “ex post facto” approach and failing to consider the analysis from the perspective of the Appellant as he was required to do.

Issues on Appeal

18The issues to be determined are:

a. Did the Hearing officer make errors in finding the Appellant guilty of unlawful or unnecessary exercise of authority;

b. Did the Hearing Officer make errors in finding the Appellant guilty of neglect of duty; and

c. Is the penalty imposed unreasonable.

1. The Hearing Officer’s decision with respect to Count 1, unlawful or unnecessary exercise of authority.

Cutting and Pasting

19Copying text, either from decisions of other adjudicators, previous decisions, or parties’ submissions, does not in itself establish procedural unfairness. The question to be determined is whether the copying shows that the adjudicator did not consider the evidence and issues and render an impartial, independent decision: See Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (“Cojucaru”) at para. 42.

20At paragraph 49 of the decision in Cojocaru, the Supreme Court adds that “…if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.”

21The Appellant submits that the Hearing Officer erred by copying passages from his own prior decisions into this one. It is alleged that those passages contained facts which are materially different than the facts in the present appeal and the Hearing Officer relied on those inapplicable facts when he made his Misconduct Decision. The implication is that the Hearing Officer did not put his mind to the issues and did not make a decision based on the evidence in this appeal.

22The respondent argues that the Appellant has not established that the copying here shows that the Hearing Officer did not put his mind to the issues and did not make an independent decision based on the evidence and the law. The presumption of judicial integrity has therefore not been rebutted.

23The Appellant points to two passages where the Hearing Officer copied text from another of his own decisions. In one passage, the Hearing Officer states at paragraph 14 of his decision:

When an arrest becomes unnecessary and an individual’s right to freedom has been removed, however briefly, that matter is serious. The arrest of the Afolabi brothers was necessary and then became unnecessary. Their personal freedom was removed. They were assaulted and handcuffed. Their injuries were minor, but unnecessary. They could not leave voluntarily until they were released unconditionally by Sergeant Gannon. This was a significant action against them by the DIGS Unit of the Windsor Police Service.

24This wording is identical to the wording in a previous decision by the same Hearing Officer. The Appellant argues that the PC was not assaulted or injured in the present case and that the copying is therefore significant.

25We find that the copying cited by the Appellant does not show that the Hearing Officer did not put his mind to the issues or make an independent decision. The Misconduct Decision details the events which took place involving the PC in significant detail and this passage does not indicate in any meaningful way that the Hearing Officer misapprehended the circumstances or did not consider the evidence of the events as they occurred involving this Appellant.

26The Appellant submits the inclusion of the reference to assault and “minor but unnecessary injuries” arising from the arrest was a significant error. We do not agree that the use of the terms assault or minor injury cannot be applied to the events involving the PC in this case. The PC was physically restrained and placed in handcuffs and the Hearing Officer’s reasons reflect that understanding. However, even if we accept that the Hearing Officer’s use of the terms “assault” and “injury” were arguably inaccurate, we find that to be insufficient to conclude that a reasonable person apprised of all the relevant facts would conclude that the Hearing Officer has not put his mind to the issues and made an independent decision based on the evidence and the law. The Appellant was not alleged to have used unnecessary force and any erroneous reference to injuries was not significant in the Hearing Officer’s consideration of the circumstances of the ongoing arrest.

27The second passage the Appellant points to states that unlawful or unnecessary exercise of authority consists principally of two issues: unlawful or unnecessary arrest, and unnecessary force. The passage also states that the Hearing Officer considered the cases presented by counsel and, “while not always on point” found them to be instructive. This passage was also copied almost entirely from the same decision as the previous impugned passage.

28The Appellant argues that this copying is “not insignificant” because the cases provided to the Hearing Officer by the Appellant’s counsel were on point and s. 2(1)(g) of the Code of Conduct covers more than just unlawful or unnecessary arrest and unnecessary force.

29The Appellant has not satisfied us that a reasonable person apprised of all the relevant facts would conclude that the Hearing Officer has not put his mind to the issues and made an independent decision based on the evidence and the law based on this passage. The Hearing Officer states that unlawful or unnecessary exercise of authority consists principally of unlawful or unnecessary arrest, and unnecessary force, not that it only consists of those issues. Further, while the Appellant’s counsel may feel that all of the cases presented to the Hearing Officer were entirely on point, the Hearing Officer is entitled to disagree.

30We find that the Hearing Officer did not make an error of fact or law by using the noted text from a previous decision in the Misconduct Decision.

Finding that Appellant’s actions amount to misconduct under s. 2(1)(g)(i) of the Code of Conduct

31The Appellant argues that the Notice of Hearing alleges that the Appellant, without good and sufficient cause made an unlawful arrest but that the Appellant did not make any arrest. The arrest was made by the ETFU and not the Appellant. The Notice of Hearing is particularized by stating that the complainants remained in handcuffs and the “detention became arbitrary and unlawful”. The Appellant points out that s. 2(1)(g)(i) of the Code of Conduct, the section whose breach is alleged in the Notice of Hearing, covers unlawful or unnecessary arrest and that detention is covered by s. 2(1)(g)(i.1), a section that the Appellant was not charged under.

32The Appellant argues that the Hearing Officer did not consider that detention is not part of the misconduct under s. 2(1)(g)(i) despite the fact that Appellant’s counsel made submissions at the hearing that, since detention is covered under a different section of the Code of Conduct, the Appellant could not be found guilty of that specific act of misconduct.

33The respondent argues that the Hearing Officer rejected the Appellant’s argument that he did not arrest the PC but only detained him after learning of the mistaken identity. The Hearing Officer held that the Appellant continued the arrest of the PC by failing to remove the handcuffs, or release him from arrest, immediately upon learning of the mistaken identity.

34The Appellant’s position rests on the premise that the PC was not arrested by the Appellant but rather was detained by him once the mistaken identity became known to the Appellant. Therefore, according to the Appellant, the Hearing Officer erred when he found the Appellant guilty of unreasonable or unnecessary arrest contrary to s. 2(1)(g)(i) of the Code of Conduct.

35The Appellant also takes the position that the particularization of the charge of Unlawful or Unnecessary Exercise of Authority was that there was a detention, not that there was an arrest. He argues that since the particulars did not mention “arrest” the Appellant was not given proper notice of the case he had to meet.

36In our view, the Hearing Officer’s finding that the Appellant was responsible for the PC’s ongoing arrest, after it became known that he was misidentified, was reasonable and supported by the evidence, and there was no error of law. The Appellant agrees that the PC was placed under arrest by the EFSU and that he was under arrest, and handcuffed, when the Appellant arrived at the scene. There is no evidence that once the Appellant was aware that the PC was not the intended target of the arrest, his status changed from “arrested” to “detained”.

37With respect to the suggestion that the particulars in the Notice of Hearing for Count 1 only alleged detention and were not sufficient notice that the Appellant was being charged with falsely arresting the Appellant, we disagree. The Notice of Hearing specifically alleges that the Appellant “without good and sufficient cause made an unlawful or unnecessary arrest” contrary to s. 2(1)(g)(i) of the Code of Conduct. It then goes on to describe the particulars of that arrest as consisting of the PC remaining in handcuffs whereby the “detention became arbitrary and unlawful”. This was sufficient for the Appellant to know the case to meet.

38In our view, the particulars set out in the Notice of Hearing cannot be reasonably read as an allegation of unlawful detention under s. 2(1)(g)(i.1) of the Code of Conduct as the Appellant alleges. We find that it is clearly an allegation of unlawful arrest under s. 2(1)(g)(i) arising from the mistaken identification. The particulars put the Appellant on notice the misconduct alleged arises from the act of keeping the PC in handcuffs after he was realized not to be the intended target. The fact the statement of particulars employs the word “detention” to describe the situation of keeping the PC in handcuffs, or failing to unarrest him, does not transform the gravamen of the alleged offence to one of arbitrary detention. It is clear from the particulars in the Notice the allegation to which the Appellant had to respond arose from his role in not unhandcuffing (or “unarresting”) the PC when the wrongful arrest became known. Nor did the Hearing Officer find that the Appellant had unlawfully “detained” the Appellant. Rather he found that the PC was lawfully arrested by the EFSU and that the arrest was unlawfully continued by the Appellant.

39The Hearing Officer’s reasons for finding the Appellant guilty under s.2(1)(g)(i) are focused on his role in not immediately unhandcuffing and “unarresting” the PC when his misidentification became known to him. The Hearing Officer instructs himself on the relevant principles by citing page 3-238 from Paul Ceyssens’ Legal Aspects of Policing (Saltspring Island: Earlscourt, 1994) which states:

Police officers may be liable for false imprisonment for failure to release a person lawfully arrested. The law requires police to release the arrestee as soon as practicable, absent justification, but if further investigation leads a police officer to believe that reasonable and probable grounds no longer exist, any continued detention becomes unlawful and police must release the person immediately…

40The Hearing Officer found these principles applied on the evidence before him. He made a finding that at the point he knew the PC had been misidentified, the Appellant should have directed the removal of his handcuffs and that the arrest at that point was unnecessary and unlawful and by not doing so, the Appellant made an illegal or unlawful arrest. The Commission agrees with the reasons and findings of the Hearing Officer and finds no legal error or unreasonable factual findings. We do not accept the Appellants argument that s. 2(1)(g)(i) only applies to the officer who initially places a person under arrest and not to an officer who is responsible for the continuation of an arrest after finding out that the arrest is unlawful.

Failing to consider proof of “without good and sufficient cause” in Count 1

41The parties agree that, in order to establish misconduct under s. 2(1)(g)(i) of the Code of Conduct, the Hearing Officer must be satisfied that the arrest of the PC was unlawful or unnecessary and that it was without good and sufficient cause. The Hearing Officer correctly sets out this test on p. 8 of the Misconduct Decision (see Pais v. Toronto Police Service, 2023 ONCPC 14 at para. 27, Correa v. Ontario Civilian Police Commission, 2020 ONSC 133 (Div. Ct.) at para. 40, Ardiles and Toronto Police Service, 2016 ONCPC 01 at para. 23.).

42According to the Appellant the Hearing Officer did not consider whether or not there was proof of “without good and sufficient cause” and that he ignored the evidence that there was “good and sufficient cause” for the arrest. The Appellant argues that the good and sufficient cause arose from the Appellant’s evidence that, even after learning the PC was not the target of the arrest, he had to continue the investigation to ensure the PC and his brother were not associated with the intended target and whether the warrant for the residence should be executed.

43The respondent argues both that it is unnecessary, in the circumstances here, to conduct a separate analysis of good and sufficient cause, and that in any event the Hearing Officer’s reasons show that he concluded that the Appellant did not have good and sufficient cause to continue the arrest of the PC after it was determined that he was misidentified and that the warrant was obtained, in part, on incorrect information.

44The Commission has held that, depending on the totality of the evidence, a separate analysis of whether an officer had good and sufficient cause to make the arrest is not required, where a finding that an arrest has been unlawful or unnecessary has been made: Pais v Toronto Police Service, supra at para 29, Fenton v Toronto Police Service, 2017 ONCPC 15 at paras. 105-106, Wowchuk & Bernst v. Thunder Bay Police Service, 2013 ONCPC 11 at para. 78.

45In the present case, the Hearing Officer did not conduct an analysis as to whether there was good and sufficient cause to continue the arrest. The Appellant points to evidence which might provide a basis for an investigative detention of the PC and argues that the Hearing Officer should have considered that evidence in the circumstances.

46In our view, in the circumstances of this case and based on the totality of the evidence, a separate analysis of whether the appellant had good and sufficient cause to make the arrest is not required. Here, there can be no good and sufficient cause to continue an arrest where the subject of the arrest is found to have been mistakenly identified as the person who was intended to be arrested. In other words, in the circumstances of this case, there could be no good and sufficient cause to place under arrest someone the officer knows is not the person that they are intending to arrest.

47The Hearing Officer found that the PC remained under arrest after the grounds for that arrest were no longer reasonable on any objective or subjective analysis. Therefore, in the circumstances of this case, the failure of the Hearing Officer to conduct a good and sufficient cause analysis is immaterial to the determination that the arrest was unlawful.

Whether the Hearing Officer’s approach to detention was an error of law

48The Appellant argues that the Hearing Officer failed to consider the principle that the lawfulness of arrest is not impacted by the continuation of an investigation. The Appellant argues that the Appellant was entitled to detain the PC for investigation if he had reasonable grounds to suspect he may be connected to criminal activity and that honest or mistaken belief may be sufficient for an arrest or a detention.

49In our view there is no merit to this ground of appeal. With respect to the lawfulness of an arrest and the continuation of an investigation, that depends on the arrest being lawful to begin with. There is no merit to the suggestion that an unlawful arrest might become lawful if the arresting officer continues an investigation. The Appellant’s reference to the holding in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241 that an ongoing investigation following a lawful arrest does not render the initial arrest unlawful is inapposite. In this case, the moment the Appellant was fixed with the knowledge the PC had been misidentified as the target of the warrant, the grounds for the arrest had no basis; it was plain to all involved there had been an unlawful arrest. As of the moment the misidentification became known, there was no good and sufficient cause to continue the arrest itself to further investigate the PC.

50The issue before the Hearing Officer was not whether any ongoing detention was or was not arbitrary. This is not the issue the Hearing Officer had to decide based on the Notice of Hearing. It may have been that the further detention of the PC was lawful, given the dynamics of the particular investigation. However, the only issue for the Hearing Officer to decide was whether the continued arrest of the PC, after the point the misidentification became known, was necessary or lawful. The Hearing Officer found it was not necessary or lawful, and in the Commission’s view that was a reasonable finding.

51With resect to the entitlement to detain the PC for investigation, as noted above, we have determined that the Hearing Officer reasonably concluded that the PC was unlawfully arrested and not detained. Further, this is not a case of honest or mistaken belief leading to an arrest, but a case where it was reasonably found by the Hearing Officer that the Appellant knew the PC was mistakenly identified and had no belief that there were reasonable grounds for arrest at the time, let alone an honest or mistaken one.

Ignoring or misstating evidence

52The Hearing Officer is not required to refer to, let alone analyze and weigh, every piece of evidence in considering the key issues in dispute: Siriska v. Ontario Provincial Police, 2022 ONCPC 8 para. 32.

53The Appellant cites a number of examples of evidence “ignored” by the Hearing Officer including a number of statements made by the PC during cross-examination, and the testimony of several of the other police officers involved in the arrest and investigation leading to the arrest. The Appellant does not state in its factum or in its submissions how that evidence was related to the central issues in the hearing or what conclusions the Hearing Officer should have drawn from that evidence.

54Much of the evidence that was allegedly ignored involved the ongoing investigation that occurred after it was determined that the PC was not the intended target of the arrest, and the respectful treatment the PC received while handcuffed and after the handcuffs were removed. It is unclear how that evidence could have made a difference to the outcome of the hearing or why it was necessary that the Hearing Officer grapple with that evidence.

55With regard to misstatement of evidence, the Appellant has listed a number of instances where he says the Hearing Officer misstated evidence. Most of the misstated evidence appears to be with respect to the investigation leading up to the PC’s arrest or the investigation of the events surrounding the arrest which led to the charges against the Appellant. The Commission has held these facts are not central to the issue to be decided on Count 1, which is whether continuing the actual arrest of the PC after the misidentification became known amounted to misconduct.

56The Appellant does not set out how the alleged misstatements render the Hearing Officer’s Misconduct Decision on Count 1 unreasonable. We are not satisfied that the errors alleged by the Appellant are ones which in any way impact the Hearing Officer’s Misconduct Decision as a whole or any of the central issues in dispute and we give no weight to this ground of appeal.

Error regarding admissibility of evidence

57The Appellant submits that the Hearing Officer erred in allowing into evidence the notes and duty reports of officers who were not called by the prosecutor as witnesses. The Appellant does not elaborate on the nature of the error or the impact the error may have made on the central issues under consideration in the Misconduct Decision. Pursuant to s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the Hearing Officer was entitled to admit as evidence at the hearing any document or other thing relevant to the subject-matter of the proceeding “whether or not given or proven under oath or affirmation”. Without further elaboration on the alleged error, the Commission sees no error on the face of the Hearing Officer’s decision to allow these documents into evidence.

2. Hearing Officer’s decision with respect to Count 2: Neglect of Duty

Relying on his purported expertise

58It is well established that hearing officers may bring to disciplinary proceedings both their practical and specialized knowledge of the workings of their police services. This Commission has previously noted that hearing officers bring particular expertise and specialized knowledge to their role as adjudicators: see Schmidt v Ontario Provincial Police, 2011 ONCPC 11 at para 42 and 44. This allows a hearing officer to both understand and interpret the evidence before them: see Berger v. Toronto Police Service, 2007 ONCPC 8.

59Section 16 of the Statutory Powers Procedure Act, R.S.O. 1990, S.22 (“SPPA”) allows a tribunal to take notice of facts that may be judicially noticed and to take notice of generally recognized scientific or technical facts, information, or opinions within its scientific or specialized knowledge.

60Where a hearing officer takes notice of a fact, it must be so notorious and generally accepted as not to be the subject of debate by reasonable persons, or it must be capable of immediate and accurate demonstration by resort to readily accessible sources of undisputed accuracy: see R. v. Perkins, 2007 ONCA 585 at para. 39 and Potter v. Ontario Provincial Police, 2017 ONCPC 20 at paras. 25-26.

61A hearing officer may use their experience to evaluate the evidence, but they are not permitted to use their experience to fill in gaps in the record or to make essential findings of fact. Essential findings of fact must be made on the basis of evidence: see Stevenson v. York Regional Police Service, 2013 ONCPC 12 at para. 162.

62The Appellant alleges that the Hearing Officer improperly used his experience to contradict the evidence given at the hearing with respect to giving the PC the rights to counsel. Specifically, the evidence at the hearing was that the written policy of the Windsor Police Service is that the arresting team, the ESFU in this case, was to give the subject the rights to counsel and that the Appellant believed that had been done before he arrived at the incident scene.

63A review of the evidence presented at the hearing demonstrates that the EFSU had the responsibility, as the arresting team, to give the rights to counsel and that the Appellant was not informed that had not been done when he arrived at the scene. Officer Spinarsky, the officer in charge of the EFSU team admitted in evidence that he ought to have given the rights to counsel in compliance with the Windsor Police Services directives and the Charter of Rights and Freedoms. The Appellant testified that his expectation was that the EFSU team had given the rights to counsel.

64The evidence at the hearing was that the Appellant did not give rights to counsel because he believed the PC had already been given rights to counsel by ESFU. This belief was based on the fact that ESFU had arrested the PC and based on his understanding of the obligations of the arrest team under the Charter and Windsor Police Services Directive.

65In his reasons the Hearing Officer discounts the evidence presented at the hearing and replaces it with his own experience as a police officer. He writes:

I can state from my experience as a police officer working in various capacities with the Ontario Provincial Police involving operations with ESU members from various Services across Ontario that they are there for the protection of the public and the police officers involved in the specific operation. They are trained for these High Risk takedowns or arrests because of their expertise. They do not know the complexities of the investigation. That is why once it is safe to enter the area of the arrest the investigative team who the ESU is working for makes the “Formal Arrest” as they are aware of the investigation in its entirety not the limited information ESU operates within. Sergeant Gannon was an eight year member of this team, the last two being the Team leader. Sergeant Gannon testified it was the ESU responsibility.

66The Hearing Officer further finds that, by continuing the arrest of the PC after it was learned of the misidentification, the Appellant ought to have known that he was required to give the Appellant his right to counsel.

67In order to find the Appellant guilty of neglect of duty, the Hearing Officer must be satisfied on clear and convincing evidence that the Appellant was required to perform a duty, that without lawful excuse the duty was either wilfully not performed or was not performed diligently or promptly. The negligence must be more than a mere performance issue to amount to misconduct: see Dickinson v. Ontario Provincial Police, 2018 ONCPC 20 at para. 12; Neild v. Ontario Provincial Police, 2018 ONCPC 1at para. 18.

68In the Misconduct Decision, the Hearing Officer does not set out the test for neglect of duty. He does not appear to turn his mind to the elements of the offence and does not make findings with respect to those elements. We find this to be an error of law.

69Although the Hearing Officer finds that the Appellant had a duty to give the rights to counsel, he relied on his own experience as an officer for another police service when that experience was directly contradicted by the evidence at the hearing. In our view, the Hearing Officer erred in law when he applied his own experience rather than the uncontradicted evidence at the hearing when determining whether the duty to give rights to counsel rested with the Appellant rather than the ESFU.

70Further, the Hearing Officer provides no analysis of whether the failure of the Appellant to give rights to counsel was without lawful excuse, or whether it amounted to more than a mere performance issue. Although the Hearing Officer implies that he does not accept the Appellant’s explanation that he thought rights to counsel had already been given, he never actually says that, and he never analyses whether that might amount to a lawful excuse or not. The Appellant’s belief that the rights to counsel had been given by the EFSU appears to represent a lawful excuse for failing to give the rights to counsel himself, in light of the evidence that was presented at the hearing. The Hearing Officer failed to make a finding with respect to that part of the test. We find that the Hearing Officer failed to provide adequate reasons for his determination that the Appellant was guilty of Count 2, neglect of duty and that this is an error of law.

71Pursuant to s. 87(8) of the Act, the decision of the Hearing Officer finding the Appellant guilty of neglect of duty is revoked and a new hearing ordered with respect to that charge.

PENALTY

72The Hearing Officer assessed the penalty on the basis of a conviction for unlawful or unnecessary exercise of authority and for neglect of duty. The finding with respect to neglect of duty has been revoked and the penalty cannot, therefore, stand. The penalty decision is therefore revoked and a new penalty hearing ordered to take place after the new hearing in respect of the charge of neglect of duty.

ORDER

73The decision of the Hearing Officer finding the Appellant guilty with respect to the charge of unlawful or unnecessary exercise of authority is confirmed pursuant to s. 87(8)(a) of the Act.

74The decision of the Hearing Officer finding the Appellant guilty with respect to the charge of neglect of duty is revoked and a new hearing is ordered to take place before a new hearing officer pursuant to s. 87(8)(c) of the Act.

75The penalty decision is revoked and a new hearing is ordered to take place before a new hearing officer pursuant to s. 87(8)(c) of the Act.