TRIBUNALS ONTARIO
Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO
Commission civile de l’Ontario sur la police
File: 23-ADJ-015
Between:
Constable Shawn Kent
Appellant
and
Durham Regional Police Service
Respondent
Decision
Panel: E. Morton, Vice Chair L. Hodgson, Vice Chair C. Osterberg, Vice Chair
Participants: S. Khehra, Counsel for the Appellant A. Sinclair, O. Moody and S. Maude, Counsel for the Respondent
Held by Videoconference: February 27, 2024
IntroductioN
1On June 27, 2023, the Hearing Officer, Superintendent M.P.B. Elbers (retired), found the Appellant guilty of one count of discreditable conduct contrary to s. 2(1)(a)(iv) of the Code of Conduct contained in Ontario Regulation 268/10, pursuant to the Police Services Act, R.S.O. 1990, c.P.15 (the Act). The Hearing Officer dismissed a count of insubordination in the same reasons. On September 15, 2023, the Hearing Officer ordered that the Appellant forfeit 32 hours pursuant to s. 85(1)(f) of the Act as the penalty for the misconduct.
2The Appellant appeals the finding of guilt and the penalty imposed.
Disposition
3For the reasons that follow, the appeal is dismissed.
BACKGROUND
4Between January 21, 2022 and March 11, 2022, the Appellant submitted numerous comments to a “Virtual Suggestion Box” created by the Durham Regional Police Service (Service). The Service charged the Appellant with both insubordination and discreditable conduct for using profane, abusive or insulting language to another member of the police service as a result of his comments. Following one day of evidence at the misconduct hearing, the Appellant conceded his comments met the definition of discreditable conduct under s. 2(1)(a)(iv) of the Code of Conduct. He brought an application seeking to stay the proceedings on the grounds that they were an abuse of process and entrapped him into committing misconduct. He also brought a motion for a ruling the comments were inadmissible as they were privileged, based on the common law case-by-case privilege. The Hearing Officer dismissed the motions in reasons dated June 27, 2023 and found the Appellant guilty of discreditable conduct. The Hearing Officer dismissed the charge of insubordination, finding it was duplicative of the discreditable conduct count.
5The Virtual Suggestion Box arose in relation to Equity, Diversity and Inclusion (EDI) initiatives at the Service. The Service created the suggestion box for members to share feedback on EDI training that was facilitated by a civilian employee acting as Director of Strategic Research and Organizational Performance (Director). The home page of the Virtual Suggestion Box reads:
The Virtual Suggestion Box is 100% anonymous and this platform is completely confidential.
Your input is important to us for helping to identify areas we can improve AND in developing likely solutions to day-to-day challenges. We are sincerely interested in constructive feedback and innovative ideas that will affect positive change within the Durham Regional Police Service.
The Virtual Suggestion Box is intended to be an accessible means to seek input, feedback and advice from different people at all levels in the organization, from different departments and functions.
Make your voice count by submitting a suggestion. Thanks in advance for your input!
6The submission page of the Virtual Suggestion Box contains a proviso reading “[t]he Virtual Suggestion Box is not a tool to submit internal or external complaints or grievances.”
7The Appellant made seven submissions to the suggestion box between January and March 2022. In his compelled interview, the Appellant denied that the comments were actually intended for the Director, though ultimately conceded through counsel at the hearing the comments met the elements of s. 2(1)(a)(iv). The Director gave evidence he believed the messages were directed at him. The Statement of Particulars for the discreditable conduct count excerpted the following submissions to the Virtual Suggestion Box:
The rest is bunk and you know it. If you don’t, you either profit from it or you shouldn’t be in charge.
I’ve got news for you mister, because only a man could be this stupid IRD [Immediate Rapid Deployment] will save lives. Period. The only thing Diversity will save is your job.
because you yourself are a far-left ideologue who hates and distrusts the police and therefore can’t see any other alternative than a need to police the police even when we already have 3 legislated oversight bodies. Am I getting the gist of your latest pet project to justify a paycheck?
You’ve just created a black hole of activism. Congratulations.
8In other comments, the Appellant specifically mentions the Virtual Suggestion Box is “not a tool to submit internal or external complaints or grievances” and goes on to write “[n]o japes at the expense of our leadership.” He further submitted “Don’t be so sure you have nothing to learn from an unpleasant conversation. If everybody agrees with you, you are either the boss, or at a whorehouse.”
9Though the Appellant conceded his submissions met the definition of discreditable conduct as alleged, his counsel (who is the same counsel on appeal) submitted it was at the low end of the threshold. He described his submissions as “salty” and “colourful.” In addition to the Appellant’s concession, the Hearing Officer had before him a number of authorities addressing the elements of discreditable conduct contrary to s. 2(1)(a)(iv) of the Code of Conduct. The Appellant does not raise as a ground of appeal in his Notice to this Commission that the impugned comments do not meet the elements of discreditable conduct alleged. His submissions on appeal focus on the Hearing Officer’s rulings on the two motions, as well as the penalty disposition.
ISSUES ON APPEAL
10The Appellant raises the following issues on appeal:
Did the Hearing Officer fail to give sufficient reasons for the motion decisions;
Did the Hearing Officer err by dismissing the Appellant’s motion for a stay on the basis of abuse of process and entrapment;
Did the Hearing Officer err by holding the comments to the Virtual Suggestion Box were not privileged communications; and,
Is the penalty imposed unreasonable?
In these reasons, the Commission also addresses the following issue:
- Is the disciplinary proceeding and the penalty a proportional limit on the Appellant’s Charter1 rights?
STANDARD OF REVIEW
11The standard of review to be applied by the Commission hearing an appeal from 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 627. Questions as to whether facts satisfy a legal test are questions of mixed fact of law which are also to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Jeremiah Johnson v. Durham Regional Police Service, 2020 ONCPC 3; Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 53. Findings of fact and credibility are generally owed considerable deference by the Commission: Toronto Police Service v. Blowes-Aybar, 2004 CanLII 34451 (ON SCDC) at para. 33.
12In Imperial Oil Limited v. Haseeb, 2023 ONCA 364 at paragraph 43, the Court of Appeal for Ontario elaborated on the application of this standard:
In applying the reasonableness standard, the focus is “on the decision actually made by the decision maker, including both the decision maker’s reasoning and the outcome.” In addition, the reviewing court is not to hold the reasons up to a standard of perfection or conduct a “line-by-line treasure hunt for error”. (Internal citations omitted)
13The Appellant has raised as a discrete argument on appeal, the sufficiency of the Hearing Officer’s reasons on the motion decisions. The Commission refers to the guiding principles in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (Newfoundland and Labrador Nurses) at paragraphs 14 to 16, which have been repeated more recently in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paragraph 91. The Court noted that adequacy of reasons is not a stand-alone basis for quashing a decision: Newfoundland and Labrador Nurses at para. 14. Reviewing courts and tribunals are to assess both the process of articulating the reasons and the outcomes. The Court further held at paragraph 15 of Newfoundland and Labrador Nurses:
In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law… This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. (Internal citation omitted)
14With respect to the standard of review on a penalty appeal the Divisional Court confirmed the following in Karklins v. Toronto (City) Police Service, 2010 ONSC 747 at paragraph ten:
The role of the Commission on a penalty is well established. Our function is not to second guess the Hearing Officer or substitute our opinion. Rather, it is to assess whether or not the Hearing Officer fairly and impartially applied the relevant dispositional principles to the case before him or her. We can only vary a penalty decision where there is a clear error in principle or relevant material facts are not considered. That is not something done lightly.
ANALYSIS
Sufficiency of Reasons
15The Appellant raises as a stand-alone ground of appeal the sufficiency of the Hearing Officer’s reasons. The Appellant’s argument is that the Hearing Officer failed to set out and analyze the branches of the separate legal tests in the motions relating to exclusion of evidence and abuse of process.
16The Commission finds that in the context of this appeal, the sufficiency of the Hearing Officer’s reasons cannot be a stand-alone ground of appeal. As set out above, the reasonableness analysis does not require this panel to conduct an isolated analysis as to whether the Hearing Officer provided adequate reasons to justify his result. The Commission looks to whether the Hearing Officer adequately explained the basis for his decision in the context of the issues themselves and in light of the record, the evidence and the parties’ submissions: Newfoundland and Labrador Nurses at paras. 15 and 18. It is the role of the Commission to consider the Appellant’s arguments about the sufficiency of reasons as it considers whether the Hearing Officer’s decisions dismissing the motions are reasonable. As set out below, the Hearing Officer’s reasons are sufficient to permit the Commission to determine that the conclusions reached are within the range of acceptable outcomes.
The Decision to Dismiss Abuse of Process and Entrapment Motions was Reasonable
17The Appellant brought the motion to stay the proceedings against him on two interrelated bases. First, he argued the investigation and misconduct proceeding amounted to an abuse of process. Second, he invoked the criminal law doctrine of entrapment, and argued the proceedings should be stayed as the Virtual Suggestion Box and promise of anonymity provided him with an opportunity to and induced him to commit misconduct.
18The Hearing Officer instructed himself that s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 empowered him to make orders or give directions as considered proper to prevent an abuse of process. He then made a finding that the submissions by the Appellant were not in keeping with the purpose of the Virtual Suggestion Box and that the Appellant cannot “hide behind the theory that the comments were to be anonymous as his comments were not in keeping with the purpose for which the Suggestion Box was initiated.” The Hearing Officer instructed himself that the standard to find an abuse of process is “exceptionally high” and quoted Groat and Quinte West Police Service, 2001 CanLII 56732 (ON CPC) at para. 52:
To exercise such exceptional authority, a tribunal must be satisfied that the conduct in question is so wrong that it would violate the conscience of the community, fundamental justice and fair play; prejudices an accused officer or the integrity of justice and that no other remedy is reasonably capable of removing that prejudice. The onus is on the subject officer.
19The Appellant submits on appeal that the Hearing Officer’s decision on the abuse of process motion is unreasonable as he did not turn his mind to the unfairness at play in the investigation and misconduct proceeding, and focused only on the fact the Appellant’s comments were not in line with the purpose of the Virtual Suggestion Box. The Appellant argues the “purpose” of the Virtual Suggestion Box was relevant only to the assertion of privilege, and not the abuse of process argument.
20It is clear to the Commission the Hearing Officer turned his mind to the fundamental principles governing the abuse of process motion. The above passage from Groat mirrors the Supreme Court’s instruction to administrative tribunals considering abuse of process applications. The Supreme Court wrote in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at para 120 that administrative tribunals should only find that there has been an abuse of process in the clearest of cases, and that these cases will be extremely rare. At paragraph 120 the Court wrote “[f]or there to be an abuse of process, the proceedings must, in the words of L’Heureux-Dube J., be ‘unfair to the point that they are contrary to the interests of justice.’” (Internal citation omitted).
21The Commission finds the Hearing Officer turned his mind to the Appellant’s submission the investigation and misconduct proceeding were unfair and abusive. The Hearing Officer wrote:
[Counsel] stated it was the abusive nature of the Durham Regional Police Service to detect who submitted the suggestion to the anonymous box. …[Counsel] has argued this would be detrimental to the Service and frowned upon by the public if they were made aware of these proceedings as anonymity was guaranteed to those who made submissions.
He also argued the Service entrapped his client with these charges. [Counsel] argues as a result the Hearing has been compromised to a degree that it would bring the administration of justice into disrepute.
22The Hearing Officer held that the abuse of process arguments were not made out as the Appellant, recognizing himself that his comments were not aligned with the purpose of the Virtual Suggestion Box, could not “hide behind the theory that the comments were to be anonymous.” For the reasons that follow, the Commission finds the Hearing Officer did address the root of the abuse of process argument in his reasons.
23The Respondent’s submissions before the Hearing Officer on the abuse of process issue focused on the point the Appellant made comments to the Virtual Suggestion Box that were not aligned with the purpose for which the Box was created. Rather, they were abusive personal attacks that the Appellant conceded met the definition of discreditable conduct. The fundamental question for the Hearing Officer to decide on the abuse of process motion was whether the unfairness of proceeding against the Appellant violated the conscience of the community and notions of fair play. The Hearing Officer made a factual finding that the comments were made outside of the purposes of the Virtual Suggestion Box, and because of this, found that the guarantee of confidentiality and anonymity did not apply. This was a finding that was open to the Hearing Officer to make and that the Commission finds to be reasonable based on the record.
24The Commission notes again that the Hearing Officer correctly instructed himself on the high standard applied to stay proceedings based on an abuse of process. While the Appellant argues that it may violate the conscience of the community and notions of fair play to proceed with an investigation and misconduct proceedings for comments that were made with a guarantee of confidentiality/anonymity, the Hearing Officer found that any such guarantee ended when the Appellant’s comments ran afoul of the purpose of the suggestion box, and so he found that the Service’s conduct did not rise to that level. The Commission is of the view that finding was within the range of reasonable outcomes, noting again the high threshold for finding unfairness at play rises to an abuse of process. The Commission also acknowledges the evidence of the Director that he believed the comments to the suggestion box were meant to be confidential; the Hearing Officer averted to this evidence in his reasons and was entitled to make his own factual findings about the limits of confidentiality in the context of the suggestion box’s purpose. The Commission owes that factual finding deference.
25The Hearing Officer was also alive to the Appellant’s invocation of the doctrine of entrapment. The Commission does not agree the Hearing Officer, in the circumstances of this case, was required to recite in his reasons the legal test governing entrapment: see R. v. Mack, 1988 CanLII 24 (SCC) and R. v. Zakos, 2022 ONCA 121. and then analyze each branch of the test. Entrapment in criminal law is an application of the power of a court to enter a stay of proceedings to prevent an abuse of process. It is tied to the residual discretion of the court to stay proceedings where continuing would violate fundamental principles of justice which underlie the community’s sense of fair play and decency. It is a power that is exercised only in the “clearest of cases”: Zakos at para. 28. The Hearing Officer made a finding that the Appellant had not met the high threshold of demonstrating that continuing the proceeding would violate these principles.
26The entrapment argument relied upon by the Appellant was exceptionally weak. The Hearing Officer would have had to accept the Virtual Suggestion Box was established to offer the Appellant an opportunity to commit misconduct. There was no evidence this was the case. The Hearing Officer is not required to address every facet of arguments made before him. He grappled with the core of the abuse of process argument and his failure to conduct a thorough analysis of the different aspects of an entrapment argument do not affect the reasonableness of his decision.
The Finding the Appellant’s Comments were not Covered by a Case-By-Case Privilege is Reasonable
27The Appellant also sought a ruling the evidence of his submissions to the Virtual Suggestion Box were inadmissible as they were covered by case-by-case privilege. The Hearing Officer heard full written and oral submissions on this issue and was directed to the four-part Wigmore test to establish a case-by-case privilege: Slavutych v. Baker, 1975 CanLII 5 (SCC); R. v. National Post, 2010 SCC 16 (National Post). The parties made submissions as to why each prong of the four-part test either had or had not been established by the Appellant.
28The Wigmore criteria for establishing privilege on a case-by-case basis are well known. The elements, as set out in National Post at paragraph 53 are:
First, the communication must originate in a confidence that the identity of the informant will not be disclosed. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one that should be “sedulously fostered” in the public good…Finally if all these requirements are met, the court must consider whether in the instant case the public interest served by protecting the identify of the informant from disclosure outweighs the public interest in getting at the truth. (Internal citations omitted).
29The crux of the Hearing Officer’s reasons on the privilege issue are:
There is no privilege attached to these comments made by [the Appellant]. As indicated above, the suggestion box was for input to Senior Management to consider making the Service a better organization. [The Appellant] did not make any positive comments. He was upset with the direction of the organization and relieved his frustrations with the inappropriate comments he submitted to the Suggestion Box.
30This finding can be read along with the Hearing Officer’s finding, made when considering the abuse of process motion, that “I find that the comments made by [the Appellant] were not in keeping with the purpose of the Suggestion Box. As such I do not believe that [the Appellant] can hide behind the theory that the comments were to be anonymous as his comments were not in keeping with the purpose for which the Suggestion Box was initiated.”
31The Commission finds that in the circumstances of this case, having regard to the record before the Hearing Officer and the submissions of the parties, the reasons provide an adequate justification for his ruling on the evidentiary motion. While the Hearing Officer did not conduct a step-by-step analysis of the Wigmore test, his finding the impugned comments were not aligned with the purpose for which the Virtual Suggestion Box were created resolves the issue of whether the Appellant met his onus of demonstrating the case-by-case privilege applied.
32In the Commission’s view, the Hearing Officer’s reasons explain why it is that despite the assurance the Virtual Suggestion Box is “100% anonymous” and “completely confidential”, the class-by-class privilege did not apply. The onus was on the Appellant to demonstrate that the confidence was “essential to the relationship in which it arose.” The Hearing Officer made a finding that the impugned comments fell outside of the purpose of Virtual Suggestion Box. The second branch of the Wigmore test was therefore not established. The platform promised anonymity and confidentiality but went on to state the purposes and intent behind the Virtual Suggestion Box. The Appellant’s comments, which he admitted amounted to profane, abusive or insulting language, bore little to no connection to the purpose of the platform and the relationship the Service sought to foster with its members by instituting it. Though the Hearing Officer’s reasons are brief, they constitute an explicit factual finding that the communications at issue were not covered by the second part of the test for establishing a case-by-case privilege.
33Further, the Commission agrees with the Respondent’s submission that the record is bereft of any evidence or submission on which the Hearing Officer could find that the relationship the confidential suggestion box created between the Service and its members is one that should be “sedulously fostered” in the opinion of the community. The Appellant has led no evidentiary foundation for the proposition the opinion of the community is that anonymous feedback platforms in an employee-employer relationship create such a relationship.
34On the other hand, the Respondent led evidence before the Hearing Officer that any guarantee of confidentiality or anonymity was attenuated by the Service’s Computer Equipment Network Access and Security Directive (AO-09-002) which instructs members they have no expectation of anonymity or privacy when using the Service’s computer network and equipment. Moreover, the Directive states at ss. 13.4 and 13.7 that messages sent through the Service’s network must be professional and courteous and that electronic messaging systems shall not be used to transmit material that is derogatory to any individual or group or clearly intended to insult any individual or to cause dissention within the service.
35The Hearing Officer does not refer to the evidence led by the Respondent in support of its position regarding the promise of confidentiality and anonymity in his reasons. However, when assessing the reasonableness of his decision the case-by-case privilege is not established here, the Commission can make reference to the entire record. The Commission holds the Hearing Officer’s reasons, in light of the entire record and the submissions of the parties, explain the basis for his ruling on the evidentiary motion. In light of the evidence before him, his decision was reasonable and the Commission will not interfere.
The Misconduct Proceedings are a Proportional Limit on the Appellant’s Charter Rights and on Charter Values
36The Appellant did not raise the issue of whether his suggestion box comments engaged his s. 2(b) Charter right to freedom of thought, belief, opinion and expression before the Hearing Officer or on appeal to this Commission. In Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment, 2023 SCC 3 (Commission scolaire), the Supreme Court reaffirmed the principle that an adjudicated administrative decision must determine whether the administrative action limits Charter protections and if so, then balance the Charter values at play with the statutory objectives the administrative action seeks to achieve. The Court held at paragraph 65 of Commission scolaire that administrative decision makers “have an obligation to consider the values relevant to the exercise of their discretion, in addition to respecting Charter rights” and that discretionary decisions “must ‘always’ take Charter values into consideration” (emphasis in original).
37The Commission has affirmed the need to conduct the Charter balancing in two recent decisions: Brisco v. Windsor Police Service, 2024 ONCPC 24 (Briscoe); Zarabi-Majd v. Toronto Police Service, 2024 ONCPC 29 (Zarabi-Majd). The Brisco decision, which was released on February 14, 2024, made clear that the Commission is obliged to conduct the Charter balancing even where the issue was not squarely before the Hearing Officer.
38In Brisco and Zarabi-Majd the Commission found the disciplinary process engaged the Appellants’ freedom of expression, finding that the impugned conduct in each of those cases “conveys or attempts to convey a meaning” and thus had “expressive content and prima facie falls within the scope of the [s. 2(b)] guarantee.”: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC) at p. 969. Similarly, the Commission finds the Appellant’s comments to the virtual suggestion box attempted to convey meaning and are prima facie protected by the s. 2(b) Charter guarantee. The Appellant’s anonymous comments level criticism at EDI initiatives undertaken by the Service and at the allocation of resources to these programs. In his compelled interview, which was played at the hearing, the Appellant discussed the suggestion box he had used as a place to discuss what he saw as a “very political” “ideology” on the part of the Service. This is clearly an expression of belief and opinion. The misconduct proceeding, which was aimed at addressing and ultimately disciplining the Appellant for this expressive activity, created a limit on the Appellant’s s. 2(b) Charter right.
39The Commission next turns to an analysis of whether it has been established that the limit on the Appellant’s Charter right and the Charter values at play is proportionate to the public benefit the limit seeks to achieve. The Commission has confirmed the overall purpose of the disciplinary process is to maintain public confidence in policing: Zarabi-Majd at para. 104; Brisco at para. 54. The Appellant was found guilty of discreditable conduct under s. 2(1)(a)(iv) of the Code of Conduct which makes it a disciplinary offence to use profane, abusive or insulting language to any other member of a police force. The Appellant conceded at the hearing his comments constituted discreditable conduct under this provision. As noted, the Service’s directives provide that there is no expectation of anonymity on the Service network, and it is not to be used to transmit derogatory material.
40The issue therefore is whether the objective of maintenance of public confidence in policing through a transparent discipline process outweighs, in the balance, the Appellant’s right to express his opinions freely and, more broadly, whether the benefit of achieving this objective is worth the cost to the underlying Charter value of freedom of opinion and expression.
41The Commission finds the misconduct proceeding constitutes a proportionate limit on the Appellant’s s. 2(b) Charter right and the Charter value of free expression more broadly. In assessing the reasonableness of the limit on the Appellant’s Charter right it is important to view the impugned comments in the context of his concession they contravened s. 2(1)(a)(iv) and were abusive, profane or insulting language directed to a fellow member of the service. The Commission has excerpted a number of the Appellant’s comments above. Though his comments convey his opinion about resource allocation to EDI, many of the comments insult the Director’s position, equate it with an attempt to divert resources for the Director’s personal benefit, and use language indicating the intended reader “hates” police and describing agreement with the Director as akin to being at a “whorehouse.”
42The discreditable conduct provisions of the Code of Conduct reflect a principle that police officers are held to a higher standard of conduct than the ordinary citizen: Boutin v. Ontario Provincial Police, 2022 ONCPC 10 at para. 23. The Commission finds this expectation of a standard of conduct is tied to the overarching purpose of the Act and its discipline provisions, which is to maintain public confidence in policing in Ontario. The Appellant’s expression of opinion is couched in language that, he conceded, ran afoul of a provision in the Code of Conduct that subjects use of insulting, abusive or profane language to a fellow member of the service to disciplinary measures. The proceedings under s. 2(1)(a)(iv) did not limit the Appellant from expressing his disagreement with the EDI programming at the Service; it limited him from doing so in a way that involved use of abusive, profane and insulting language to a fellow member of the Service.
43This distinction, the Commission finds, attenuates the negative effect on the Appellant’s s. 2(b) right. In finding the Appellant guilty of discreditable conduct, the misconduct proceeding did not limit his ability to express dissent. In his compelled interview the Appellant noted that he felt “silenced” by the investigation into his comments. However, the misconduct proceedings did not silence him from expressing disagreement with the EDI initiative. At the hearing, the Director gave evidence that there was “never a feeling that somebody needs to agree with me. We can respectfully disagree.” The misconduct proceeding, resulting in a finding of guilty for discreditable conduct only, placed a limit on the abusive, profane or insulting language he employed to do so. The Commission therefore finds the limit on the Appellant’s Charter protection, namely the initiation of the misconduct proceedings and ultimately the penalty given, is proportionate and is outweighed by the public interest achieved by maintaining confidence in policing through the disciplinary process.
44The Commission has also considered the broader impact of the limit on expressive freedom here, which is often described as any “chilling effect” the limitation on free expression may have on others. The Commission finds that in this case, s.2(1)(a)(iv) demonstrated a clear limit on how police officers can express themselves, not a limit on the expression of dissent or an unpopular view on initiatives within the Service. We do not find that a case where an officer has conceded himself his language was abusive, profane or insulting to another member would establish a barrier to officers appropriately expressing unpopular views, anonymously or otherwise. Again, the investigation did not silence his disagreement with EDI policies and programming; it censured the particular language used to convey his opinions.
45In conclusion, the Commission finds that limitation to the Appellant’s s. 2(b) right occasioned by the discipline process is proportionate and measured as the finding of guilt focused on the Appellant’s choice of language to convey his opinion. As discussed below, the Commission also finds the penalty imposed is proportionate. The important public good of maintenance of confidence in policing outweighs the limit on Appellant’s s. 2(b) right in the circumstances of this case.
No error in penalty disposition
46At the penalty hearing, the Respondent sought 48 hours of forfeiture pursuant to s. 85(1)(f) of the Act while the Appellant sought a reprimand. The Hearing Officer received documents setting out the Appellant’s positive work history and also received a statement from the Appellant. The Hearing Officer provided reasons considering the dispositional factors set out in P. Ceyssen’s Legal Aspects of Policing (Saltspring Island: Earlscourt Legal Press, 1994, s. 5.10(e)), with extensive reasons given on the factors of damage to the public interest, the seriousness of the misconduct, the Appellant’s recognition of the seriousness of the misconduct, deterrence and the mitigating factor of the Appellant’s positive work history. In addressing the consistency of disposition with similar cases, the Hearing Officer acknowledged he had reviewed the cases presented to him by counsel and provided reasons for why he arrived at the disposition of 32 hours of forfeiture.
47On appeal, the Appellant raises two arguments. First, he submits the Hearing Officer’s reasons on the factor of “consistency of penalty” are inadequate. The Appellant complains that it is not possible to understand how the Hearing Officer considered the prior cases, and this precludes meaningful appellate review of his penalty decision.
48The Commission rejects this submission. The Hearing Officer provided full reasons considering a number of dispositional factors at length, connecting them to the evidence he received at the penalty hearing. The Appellant does not point to a specific error in principle but seems to raise a general complaint the Hearing Officer ought to have reviewed cases in detail to draw distinctions and explain how he arrived at a different penalty than those imposed in other cases.
49The Hearing Officer stated that he had reviewed the cases provided. He clearly turned his mind to the principle of consistency in penalty, which is only one of the factors to be considered in determining penalty and referred to the principle that consistency in the discipline process “is often the earmark of fairness” and that a penalty must be “consistent with similar cases that have been dealt with on earlier occasions.” The Hearing Officer was not required to then conduct a root and branch comparison of prior cases where penalties have been imposed for discreditable conduct contrary to s. 2(1)(a)(iv) of the Code of Conduct to justify his holding those cases were “unlike” the case before him. Finally, as the Respondent points out on appeal, the disposition of 32 hours falls well within the range of penalty imposed in prior cases that were before the Hearing Officer: Constable Stephen Duriancik and the Metropolitan Toronto Police, 1982 CanLII 3356; Tapp v. Ontario Provincial Police, 2018 ONCPC 16.
50Second, the Appellant makes a more focused submission about the Hearing Officer’s comment in his reasons that he believes the Appellant “knows how foolish his comments were” and also believes he “knows a reprimand will not suffice for this indiscretion.” The Appellant submits there was no evidentiary basis for the Hearing Officer to have made this comment, as the Appellant did not testify. He also argues this comment is internally inconsistent but does not explain how this is an error in principle that impacts the reasonableness of the disposition.
51The Appellant provided a statement to the Hearing Officer at the penalty hearing. As well, the Hearing Officer grounded these comments, which is relevant to the factor of recognition of the seriousness of the misconduct, in his own observations of the Appellant during the three-day hearing. The Commission does not agree there is an internal inconsistency in the comment. The Appellant has failed to articulate how this single observation by the Hearing Officer, in the context of an extensive decision on penalty, is an error in principle that impacts the reasonableness of the disposition.
52There is no error in principle in the Hearing Officer’s penalty decision, nor did he fail to consider material facts or apply a relevant dispositional factor. There is no basis for the Commission to interfere.
53Finally, though it was not argued by the parties during their penalty submissions on appeal, the Commission has also considered whether the penalty of 32 hours of forfeiture is a proportionate limit on the Appellant’s s. 2(b) right. While a penalty of forfeiture has a significant impact on the Appellant, and is more serious than a reprimand, it is less serious than a demotion or dismissal. The Hearing Officer gave weight to the harm to the public interest in arriving at his disposition. The Commission has held this disposition factor is itself linked to the Act’s objective of public confidence in policing: Brisco at para. 76. The Commission finds the penalty is a proportionate limit on the Appellant’s Charter right and would not interfere with the penalty on this basis.
ORDER
54The appeal is dismissed. Pursuant to s. 87(8)(a) of the Act, the Commission confirms the finding of discreditable conduct and the penalty decision of the Hearing Officer.
Released: May 27, 2024
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Emily Morton
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Laura Hodgson
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Colin Osterberg
Footnotes
- Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c. 11 (Charter).