Gardner v. The Ontario Civilian Commission on Police Services

[Indexed as: Gardner v. Ontario Civilian Commission on Police Services]

72 O.R. (3d) 285

[2004] O.J. No. 2968

Court File No. 205/04

Ontario Superior Court of Justice Divisional Court

MacFarland, Lane and Then JJ.

July 9, 2004

Administrative law -- Bias -- Reasonable apprehension of bias -- General meeting of Ontario Civilian Commission on Police Services voting to refer issue of alleged misconduct by member of Toronto Police Services Board to panel of three Commission members -- Panel members having participated in general meeting -- Police Services Act permitting separation of members for purposes of investigation and adjudication -- Fact that panel members exercised both investigatory and adjudicative powers in same cause giving rise to reasonable apprehension of bias.

The appellant was a member of the Toronto Police Services Board. The question whether the appellant's acquisition of a semi-automatic handgun and ammunition constituted misconduct was referred to the Ontario Civilian Commission [page286] on Police Services. The Commission voted, at a meeting of the full membership, to establish an inquiry pursuant to s. 25 of the Police Services Act, R.S.O. 1990, c. P.15 with respect to the appellant's conduct. A hearing was held before a panel consisting of three members of the Commission. All three panel members had participated in Commission meetings at which an investigative report was tabled and discussed and at which the appellant's credibility was the subject of adverse comment. The panel found that the appellant was guilty of misconduct in acquiring the ammunition and suspended him for the remainder of his term. The appellant appealed, arguing that the composition of the panel gave rise to a reasonable apprehension of bias and that the panel therefore lost jurisdiction to conduct the hearing.

Held, the appeal should be allowed.

There was nothing in the Police Services Act which required that the same Commission members exercise both investigatory and adjudicative powers in the same cause; hence, the common law right to an impartial trier of fact was not displaced on the facts of this case. The doctrine of necessity had no application. While all the members of the Commission participated in the investigatory phase, the Lieutenant Governor in Council could have appointed a new member or members or the Chair could have delegated its powers to an employee under s. 21(5) of the Act. Similarly, an application could have been brought under the Public Officers Act, R.S.O. 1990, c. P.45 to the Superior Court for the appointment of a disinterested person to act. The merging of the various functions of investigation, decision to hold an inquiry and adjudication by the participation of the three panel members in all phases raised a reasonable apprehension of bias resulting in a loss of jurisdiction.

Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716

APPEAL from a decision of a panel of the Ontario Civilian Commission on Police Services.

2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool), 1996 153 (SCC), [1996] 3 S.C.R. 919, 140 D.L.R. (4th) 577, 205 N.R. 1, apld Brosseau v. Alberta (Securities Commission), 1989 121 (SCC), [1989] 1 S.C.R. 301, 65 Alta. L.R. (2d) 97, 57 D.L.R. (4th) 458, 93 N.R. 1, [1989] 3 W.W.R. 456, 47 C.R.R. 394n (sub nom. Barry and Alberta Securities Commission (Re)), distd Other cases referred to Statutes referred to Police Services Act, R.S.O. 1990, c. P.15, ss. 21, 23, 24, 25 Public Officers Act, R.S.O. 1990, c. P.45 Rules and regulations referred to O. Reg. 421/97, s. 14(1)

Frank N. Marrocco, Q.C., and Derek A. Vanstone, for appellant. D. Thomas H. Bell and Heather C. Mackay, for respondent.

Background

1MACFARLAND J.: -- Norman Gardner was first appointed to the Toronto Police Services Board ("TPSB") in 1987 and has, but [page287] for a brief absence, continued to serve both as a municipal and provincial appointee ever since. His current term expires in December 2004.

2On May 30, 2003, the Ontario Provincial Police ("OPP") wrote Chief Julian Fantino of the Toronto Police Service to advise him of information obtained during the course of an OPP criminal investigation bearing on the conduct of Norman Gardner. The information related to the acquisition of a semi- automatic handgun. At the time, Mr. Gardner was an appointee to and Chair of the TPSB.

3The Chief of Police directed the matter to the TPSB which in turn referred the issues raised to the Ontario Civilian Commission on Police Services ("OCCOPS"). In its letter dated June 6, 2003 to OCCOPS, the TPSB stated:

The matters raised by the material forwarded by the OPP relate to the question of whether the Board's Chair, Mr. Norman Gardner, is in breach of the Code of Conduct for Members of Police Services Board (Ontario Regulation 421/97). . . .

The Board has determined that the issues raised with respect to this Code of Conduct issue should be dealt with by the Commission having regard to the Commission's investigatory and hearing powers pursuant to the Statutory Powers Procedure Act, and in order that all those affected, including Mr. Gardner, will have the benefit of a determination of these matters by an independent third party . . .

The Board accordingly requests the Commission to deal with the matters raised by the OPP correspondence pursuant to s. 15(c) of the Code of Conduct and section s. 25 of the Police Services Act.

4At a regularly scheduled meeting of OCCOPS on June 9, 2003, the TPSB's letter was tabled and the members agreed to the Board's request to investigate Mr. Gardner. The effect of this decision was to suspend Mr. Gardner. Section 14(1) of Ontario Regulation 421/97 provides:

14(1) A board member whose conduct or performance is being investigated or inquired into by the Commission under section 25 of the Act . . . shall decline to exercise his or her duties as a member of the board for the duration of the investigation or inquiry and hearing.

5By June 24, 2003, OCCOPS had generated Terms of Reference for the investigation which were provided to Mr. Gardner's counsel by letter of that date under the signature of Murray W. Chitra, Chair. By Monday, August 11, 2003, the Minutes of the OCCOPS reveal that investigators had been appointed -- Kent Laidlaw and Terry Dickie, that they'd met with the OPP and legal advisor Tom Bell, that the investigation was 80 per cent complete and that the brief would be ready for the September meeting. In the attendances noted for that August meeting, 12 [page288] members of OCCOPS were present, including Mr. Chitra, Ms. Morland-Wellard and Mr. G. Douglas Smith. Two members were noted absent: Dr. John A. Balkwill and Brenda Weese. It would appear that by this date, Mr. Bell had been appointed counsel and that the investigators had met with him.

6The next meeting of OCCOPS took place on September 8, 2003. There were 11 members present at this meeting, again including Mr. Chitra, Ms. Morland-Wellard and Mr. Smith. The members noted absent were Charles B. Rycroft and Brenda Weese. The Minutes of this meeting of OCCOPS are important. They reveal that Tom Bell prosecuting counsel was present. The investigative report prepared by Messrs. Laidlaw and Dickie was tabled and at Mr. Chitra's suggestion, Mr. Laidlaw led the members through the report and outlined his findings.

7It is apparent on reading the report that the investigators found Mr. Gardner to be untruthful. There are a number of references in the report where his credibility is the subject of adverse comment. Following presentation of the report there was a discussion among members and the Minutes note:

The consensus among the members was to proceed with two charges on the basis of evidence: receiving the firearm and collecting the stock of ammunition from the Toronto Police Service.

8At the meeting it was moved by Ms. Morland-Wellard and seconded by Mr. Smith that:

An inquiry pursuant to section 25 of the Police Services Act be established with respect to the actions of Norm Gardner, pertaining to the acquisition and possession of the firearm from Thanos Polyzos and the receipt of ammunition from the Toronto Police Service.

9I should add at this juncture that while the conduct which the OPP reported to the TPSB related only to the acquisition of a semi-automatic handgun by Mr. Gardner, the investigation authorized by OCCOPS revealed that Mr. Gardner had received in excess of 6,500 rounds of ammunition of varying calibres from the stores of the Metropolitan Toronto Police Service free of charge.

10A Notice of Hearing was directed to Mr. Gardner dated December 5, 2003 wherein Mr. Gardner was advised that OCCOPS would hold a hearing to determine whether his behaviour ". . . contravened the Members of Police Services Boards -- Code of Conduct, being O. Reg. 421/97 (the "Code of Conduct"), and specifically, ss. 8, 10 and/or 13 of the Code of Conduct". The behaviour to be considered was:

1. Your dealings with Mr. Thanos Polyzos in connection with your receipt from him in or about February, 2003, of a Para Ordnance Tac 4 firearm, and your subsequent possession of that firearm; and, [page289]

2. Your removal from the Toronto Police Service between June 1, 2001, and April 30, 2003, of a quantity of approximately 7,900 rounds of various calibers and types of ammunition.

11The hearing proceeded as scheduled January 12, 13, 14 and 15, 2004, before OCCOPS members Murray W. Chitra, Barbara Morland-Wellard and G. Douglas Smith. In lengthy reasons released March 1, 2004, the members concluded in relation to the receipt of the firearm:

While his actions from March 6, 2003 onwards may have been sloppy and are not to his credit they do not rise to the level of misconduct nor do they establish that Mr. Gardner was not performing his essential duties or is incapable of performing his duties in a satisfactory manner. Overall, in our view his conduct in this matter falls a aehair' below the threshold.

And in relation to the receipt of ammunition:

. . . we find that Mr. Gardner's conduct with respect to the receipt of the 5,700 rounds of Toronto Police Service ammunition for his personal use warrants a finding that he contravened sections 8, 10 and 13 of the Code and was therefore not performing the duties of his position in a satisfactory manner.

12In further reasons released April 16, 2004 following submissions, the members, by way of penalty, suspended Mr. Gardner without pay from his position on the TPSB until December 5, 2004, which the members noted represented the full period of his remaining term and was the maximum suspension available to them to impose. Mr. Gardner by Notice of Appeal dated April 16, 2004, appeals both the finding of misconduct and the penalty imposed.

Reasonable Apprehension of Bias

13The principal ground raised in this appeal is that the composition of the panel of the OCCOPS gave rise to a reasonable apprehension of bias and the panel had therefore lost jurisdiction to conduct the hearing in respect of the appellant pursuant to s. 25 of the Police Services Act, R.S.O. 1990, c. P.15.

14Essentially the argument is that members Chitra, Morland-Wellard and Smith were in attendance at and participated in meetings of the full membership of OCCOPS where it was determined that there would be an investigation, prosecution counsel was appointed, the report of the investigation was received and discussed and where that report commented adversely on Mr. Gardner's credibility, where it was decided that an inquiry would go forward and then the same three members then adjudicated the complaint against Mr. Gardner. Such conduct, it is submitted, offends the rule of the right to an impartial trier of fact. The pre-hearing actions of the members of the panel who adjudicated the matter resulted in a merging of the investigative, prosecutorial [page290] and judicial functions and thereby created a situation where a reasonable person, reasonably informed, would apprehend bias with the result that the panel lost jurisdiction to hear the matter.

15The test for reasonable apprehension of bias has been set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, at p. 394 S.C.R.:

. . . apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [he], whether consciously or unconsciously, would not decide fairly."

16In our view the issues here raised are governed by the decision of the Supreme Court of Canada in 2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool), 1996 153 (SCC), [1996] 3 S.C.R. 919, 140 D.L.R. (4th) 577. In that case the court considered a challenge to a decision of the Régie des permis d'alcool, a regulatory body set up by the province of Québec, and its determination to revoke two liquor licences held by the respondent company. The court summarized the respondent's position at p. 953 S.C.R.:

The arguments against the Régie des permis d'alcool relate primarily to its role at various stages in the liquor permit cancellation process. The Act authorizes employees of the Régie to participate in the investigation, the filing of complaints, the presentation of the case to the directors and the decision.

17The majority judgment of the Supreme Court was delivered by Gonthier J., who, in dealing with impartiality, wrote at pp. 960-61 S.C.R.:

The fact that the Régie, as an institution, participates in the process of investigation, summoning and adjudication is not in itself problematic. However, the possibility that a particular director could, following the investigation, decide to hold a hearing and could then participate in the decision-making process would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases. It seems to me that, as with the Régie's jurists, a form of separation among the directors involved in the various stages of the process is necessary to counter that apprehension of bias.

18In our view, the facts in Brosseau v. Alberta (Securities Commission), 1989 121 (SCC), [1989] 1 S.C.R. 301, 57 D.L.R. (4th) 458 readily distinguish that case from this one.

19Similarly, in our view, there is nothing in the Police Services Act, whether express or implied, which requires that the same OCCOPS members exercise both investigatory and adjudicative powers in the same cause and hence the common law right to an impartial trier of fact is not displaced on the facts of this case. [page291]

20OCCOPS is created by s. 21(1) of the Police Services Act and s. 21(2) provides that the "Commission shall consist of such members as are appointed by the Lieutenant Governor in Council". There is no fixed number for the membership at any given time.

21Further, the Chair has power under s. 21(5) to delegate a member or employee to exercise the Commission's powers and perform its duties with respect to any particular matter except its authority under ss. 23 and 24, neither of which are relevant to this appeal. In addition, the Chair is authorized by s. 21(6) to determine the number that constitutes a quorum for any purpose and may determine that one constitutes a quorum.

22The Act is flexible and readily would permit separation of the members for purposes of investigation and adjudication which would preserve an impartial panel for adjudication.

Doctrine of Necessity

23In its ruling on the appellant's motion to have the panel disqualify itself, the panel ruled that there was a legislative intent that the whole OCCOPS would participate in all phases of an investigation and adjudication, but that, if that was an error, then the doctrine of necessity would apply and the panel could proceed because all members of OCCOPS were similarly tainted. The appellant took the position before us that this doctrine had no application because there are a number of alternatives available to hold the hearing without involving the tainted commissioners.

24In our view, the position of the appellant in relation to the doctrine of necessity is the correct one in the circumstances of this case. We agree that despite the fact that all members of the Commission participated in and were tainted by all meetings, the doctrine has no application, because there are available alternatives.

25It would be open to the Lieutenant Governor in Council to appoint a new member or members or the Chair could delegate its powers to an employee under s. 21(5) -- either a current employee or one hired for the specific purpose.

26Similarly an application might be brought under the Public Officers Act, R.S.O. 1990, c. P.45 to the Superior Court for the appointment of a disinterested person to act.

27In our view, the merging of the various functions of investigation, decision to hold an inquiry and adjudication by the participation of the three panel members in all phases raises a reasonable apprehension of bias resulting in a loss of jurisdiction and the decisions of the Commission cannot stand.

Disposition

28An order will issue quashing the decisions of the Commission. The matter is remitted to the Commission for re- hearing in accordance with these reasons. In view of s. 14(1) of O. Reg. 421/97, supra, it is not appropriate for us to make the order sought setting aside the suspension of the appellant from his duties. [page292]

29If counsel are unable to agree on costs they may file brief written submissions with the court; by the appellant, within seven days of the release of these reasons, and by the respondent, within seven days thereafter.