COURT FILE NO.: 497/07

DATE: 20090320

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, ASTON & SWINTON JJ.

B E T W E E N:

CONSTABLE JEFFREY GOUGH

Appellant

• and -

PEEL REGIONAL POLICE SERVICE

Respondent

Joanne Mulcahy, for the Appellant

Andrew J. Heal & Kathy Dimarco, for the Respondent

HEARD AT TORONTO: March 5, 2009

CARNWATH J.:

NATURE OF PROCEEDING

1Constable Jeffrey Gough (“the appellant”) appeals from a decision of the Ontario Civilian Commission on Police Services (“OCCPS/the Commission”), dated September 18, 2007, which dismissed his appeal from a Hearing Officer.

2The appellant asks that a finding of misconduct against him be quashed. Although he pled guilty to the charge against him, he contends that the Hearing Officer did not have jurisdiction to conduct the hearing.

3This appeal raises three issues:

(1) Was OCCPS’s analysis of s. 69(18) of the Police Services Act, R.S.O. 1990, c. P.15 (“the Act”) reasonable?

(2) Did the Hearing Officer lack jurisdiction because the Notice of Hearing was out of time?

(3) If a lack of jurisdiction, did the Constable waive his right to appeal to OCCPS by acknowledging an infraction of the Act?

BACKGROUND

4Constable Gough was the subject a public complaint made on August 16, 2001. The complainant alleged that the officer used racist and foul language during a traffic stop, and ripped up a business card of another police officer in the complainant’s possession.

5Constable Gough was told of the complaint on August 21, 2001 and submitted a response and his notes of the incident to investigators on September 4, 2001. A witness, Constable McKenna, submitted his notes and statement on August 31, 2001. Two witnesses, the complainant’s brothers, had moved to the United States and statements from them could not be obtained until February 11, 2002. On March 15, 2002, the Investigation Report was completed. On July 24, 2002, a Notice of Hearing was served on the appellant.

6On the hearing date of September 9, 2002, the appellant challenged the Notice of Hearing because it had not been filed within the six-month statutory limitation period prescribed by s. 69(18) of the Act (“the notice period”).

7Section 69(18) of the Act provides:

Six month limitation period, exception

(18) If six months have elapsed since the facts on which a complaint is based first came to the attention of the chief of police or board, as the case may be, no notice of hearing shall be served unless the board (in the case of a municipal police officer) or the Commissioner (in the case of a member of the Ontario Provincial Police) is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing.

[Emphasis added]

8On September 9, 2002, the Hearing Officer held that there was no issue because the notice period did not begin to run until the Investigation Report was filed on March 15, 2002.

9The appellant pled guilty to an amended set of facts related only to the tearing up of the business card on December 10, 2002, and agreed to an eight-hour pay deduction. Then, on January 2, 2003, he appealed the September 9, 2002 decision on the timeliness of the Notice of Hearing to OCCPS.

10In its June 5, 2003 decision, OCCPS held it had no jurisdiction to hear the appeal because it was not filed within thirty days of the September 9, 2002 decision, as per s. 70(1) of the Act. It also held that the appellant had waived his right to an appeal because of his guilty plea. However, had he perfected the appeal, OCCPS found that the Hearing Officer misinterpreted s. 69(18) in holding that the six-month notice period did not start until the Investigation Report was completed on March 15, 2002. OCCPS concluded that where more time was required to complete the investigation, the section provides a mechanism to permit the Chief of Police or Board to request an extension of time where it was reasonable to do so. To circumvent this, OCCPS said, would allow charges to remain hanging over the heads of accused officers with no remedy. In the Commission’s view, the Police Services Board should have requested an extension as provided in s. 69(18).

11Constable Gough appealed to the Divisional Court. That Court overturned the first finding and held that the thirty-day time limit to file the appeal starts after the final decision on the merits, which was not available until December 10, 2002. The appeal was in time. The Divisional Court set aside the June 5, 2003 decision and remitted the matter back to “determine the appeal on the merits”, noting that “[t]his is to be done, if the respondent is so advised”. The Divisional Court did not address OCCPS’s conclusion on waiver nor on s. 69(18).

The Decision on Appeal

12OCCPS, with a differently-constituted panel, heard the appeal of the September 9, 2002 decision as directed by the Divisional Court. The first issue raised was whether the appeal was moot, since the appellant had already been penalized with the eight-hour pay deduction. OCCPS held there was still a live issue between the parties. This conclusion was not argued before us. We agree with OCCPS’s conclusion on the issue of mootness.

13OCCPS found that Constable Gough, while represented by counsel, made a voluntary, deliberate and informed guilty plea. He did not in any tangible way attempt to reserve any right of appeal as to jurisdiction. In the absence of any such reservation, OCCPS found the appellant to have attorned to the jurisdiction of the Hearing Officer and was therefore precluded from appealing the December 10, 2002 decision of the Hearing Officer. In arriving at this conclusion, OCCPS relied on the principles expounded in several criminal cases, including Regina ex Rel. Hamilton v. Keddy (1956), 1956 466 (NS SC), 114 C.C.C. 352 (N.S.S.C.); R. v. LaChance, [2002] CMAJ No. 7 (Ct. Martial App. Ct.); and R. v. Davidson, [1992] N.S.J. No. 27 (N.S.S.C. (App. Div.)).

14OCCPS then went on to find that, in any event, the appeal failed because it was satisfied that the requirements of s. 69(18) of the Act had been met. It concluded that the Chief came into possession of facts which constituted “a sufficient body of factual information, so as to create a reasonable belief that the misconduct has occurred” when Detective Turner obtained the two independent witness statements on February 11, 2002.

15The words cited in quotations in the preceding paragraph come from a decision of the Commission, Moyle and Palmerston Police Service (1995), 2 O.P.R. 1016 (O.C.C.P.S.):

If, therefore, a Chief of Police or a Board come into possession of facts which, in their judgement [sic] is likely to lead to disciplinary action, it is incumbent upon them to give notice to the person within the time set out. This must be more than a hint of wrongdoing. It must be a sufficient body of factual information, so as to create a reasonable belief that misconduct has occurred.

[Emphasis added]

16In dealing with Moyle, OCCPS found the Hearing Officer to have erred in the test that he applied. The receipt of the Investigative Report by the Chief was not consistent with the test enumerated in Moyle. OCCPS found the proper application of the Moyle decision resulted in the s. 69(18) test being met on February 11, 2002. On this date, the U.S. witnesses’ statements were obtained. It preferred to conclude that the Chief came into possession of sufficient facts when Detective Turner obtained the two independent witness statements on February 11, 2002. Based on that finding, the Notice of Hearing had been filed in a timely fashion.

STANDARD OF REVIEW

17OCCPS’s analysis of s. 69(18) is subject to review on the standard of reasonableness. When its analysis is examined in the light of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, several factors lead to this conclusion. These are: an appeal review not limited to facts alone; the presence of an administrative regime in which the decision-maker has special expertise; OCCPS was interpreting its own statute; and the facts concerned the decision of a discipline tribunal, not a general principle of law. However, although the determination of when “sufficient facts” have come to the attention of the Chief is primarily a question of fact, nevertheless, the tribunal must apply the correct legal test.

18OCCPS’s analysis of the doctrine of waiver and attornment by guilty plea is subject to review on the standard of correctness. Unlike its analysis of s. 69(18), OCCPS was not within its home statute but, rather, dealing with general principles of law. Respectfully, this is an area where this Court’s expertise trumps that of OCCPS.

1. Was OCCPS’s analysis of s. 69(18) of the Act reasonable?

19I find it was not. Section 69(18) must be considered in the light of s. 64(7) of the Act, which reads, as follows:

64.(7) Subject to subsection (11), if, at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the opinion that the police officer’s conduct may constitute misconduct, as defined in section 74, or unsatisfactory work performance, he or she shall hold a hearing into the matter.

[Emphasis added]

20The significance of “may” in s. 64(7) can be contrasted with the Commission’s reliance on the language in Moyle, above, at p. 1023:

If, therefore, a Chief of Police or a Board come into possession of facts which, in their judgement [sic], is likely to lead to disciplinary action, it is incumbent upon them to give notice to the person within the time set out. This must be more than a hint of wrongdoing. It must be a sufficient body of factual information, so as to create a reasonable belief that misconduct has occurred.

[Emphasis added]

21OCCPS committed an error in law when it converted the “may” of s. 64(7) to the “has occurred” in the language of Moyle. There is a considerable difference between police conduct which “may constitute police misconduct” and “a sufficient body of factual information, so as to create a reasonable belief that misconduct has occurred”. Support for this proposition may be found in Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services), 2002 45090 (ON CA), [2002] O.J. No. 3737. In considering s. 64(7) of the Act, the Ontario Court of Appeal found:

69The Divisional Court was correct in concluding that the Chief and the Commission applied the wrong standard to the complaint. Only evidence which ‘may’ constitute misconduct or unsatisfactory work performance is required, not ‘clear and convincing’ evidence.

70In misconstruing the standard to be applied to the facts, the Commission arrogated to itself an issue reserved to another forum, that of the trier of fact at a hearing. It engaged in a process designed for determining whether or not misconduct had been committed, not whether it may have been committed. The Commission engaged in weighing the evidence in the broad sense reserved for the trier of fact at a hearing.

71The failure of the Commission to apply the correct standard in s. 64(6) and (7) makes its decision not to hold a hearing patently unreasonable, provided, of course, that there was some evidence that misconduct may have occurred. In this case that evidence consists of the direct evidence of Alison Gorbould. That evidence is supported by the evidence respecting the police policy. It was only those persons arrested after the cells were full that were to be transferred to the WDC. The policy would not have required that all of the women be transferred.

22In the matter before us, OCCPS fell into the same error it did in Canadian Civil Liberties, above, by adopting the test in Moyle that before holding a hearing, there “must be a sufficient body of factual information, so as to create a reasonable belief that misconduct has occurred”.

23The application of this incorrect legal principle to the facts of this case led to an unreasonable result.

24The Commission’s adoption of the principle in Moyle frustrates the intention of the Act. The intention of the Act is to prevent investigative delay and ensure a speedy disciplinary process. In Ramsay v. Toronto (City) v. Commissioners of Police (1988), 1988 4706 (ON SC), 66 O.R. (2d) 99 (Div. Ct.), the Court found, at pp. 115-7:

A glance at the Act makes it clear that the legislature sought to impose an expeditious timetable for the processing of complaints…

…the Act contains guide-lines clearly intended to accomplish the expeditious resolution of complaints.

The clear object is expedition. The objective of this legislation is defeated by a policy of delay.

25A detailed complaint was made August 16, 2001. Constable Gough responded with a detailed statement and his notes on September 4, 2001. Constable McKenna, who witnessed the incident, submitted his notes and a statement on August 31, 2001. On this latter date, I find the matter came to the attention of the Chief in accordance with s. 69(18). There was some evidence at this point that misconduct may have occurred. Gough was not served with the Notice of Hearing until July 24, 2002, eleven months and six days following the complaint.

26I find the Notice of Hearing not to comply with s. 69(18) of the Act.

2. Did the Hearing Officer lack jurisdiction because the Notice of Hearing was out of time?

27I reserve the issue of attornment and waiver to discussion later in these reasons under question 3 in paragraph [3], above.

28The power to start disciplinary action against an officer is found within s. 69(18) of the Act. The Police Service failed to comply with the requirement that a Notice of Hearing be served within six months of the complaint coming to the attention of the Chief. No permission was obtained to serve the officer outside the limit.

29As long ago as 1981, the Divisional Court found:

First, it is clear that the authority of any police officer to try another officer for a service offence is derived from statutory authority. The power of one police officer to try another is not derived from common law or from any general enactment. It is an exceptional power derived from specific statutory authority. It follows therefrom that legislative conditions by which that power may be exercised must be strictly complied with.

(Giles and Halton Regional Police Force (1981), 1981 1955 (ON SC), 33 O.R. (2d) 666 (Div. Ct.))

30The power to discipline an officer must flow from compliance with the conditions in the conferring statute. In Essex County Council v. Essex Incorporated Congregational Church Union, [1963] A.C. 808 at 820-21 (H.L.), per Lord Reid:

…it is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction, or can estop the consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction.

and per Lord Morris of Borth-y-Gest, at p. 825:

The tribunal could not assume a jurisdiction with which it would only be endowed if certain steps had been taken and certain conditions satisfied.

31Essex County Council was followed by this Court in Kupeyan v. Royal College of Dental Surgeons of Ontario (1983), 44 O.R. (2d) 247 (Div. Ct.) where the Divisional Court found the College had no jurisdiction to deal with Dr. Kupeyan:

. . .While reasonable latitude is to be allowed as to matters of form and procedure in the exercise of such powers by tribunals which are administrative in nature and are not courts, there must be no room for doubt that the power to discipline is exercised within the terms and upon the conditions of the statute by which it is conferred. The record in this case falls far short of showing that.

32I find the Hearing Officer lacked jurisdiction because the Notice of Hearing was untimely.

3. If a lack of jurisdiction, did the Constable waive his right to appeal to OCCPS by acknowledging an infraction of the Act?

33As noted earlier in para. [13] above, the respondent argues by analogy to criminal cases that an appeal may only be granted after a guilty plea in exceptional circumstances, such as ignorance, deceit, duress or mistake where the plea does not express an accused’s true intention. Where no such circumstances exist, says the respondent, then the appellant has no cause to complain of his conviction.

34I respectfully disagree with this submission. The criminal cases cited by OCCPS, which hold that an appeal will only be granted after a guilty plea in exceptional circumstances, do not address a situation where a court or tribunal lacks jurisdiction.

35It must be remembered that Constable Gough raised the lack of jurisdiction of the Hearing Officer in the application brought on August 28, 2002, seeking to stay the Notice of Hearing. On the guilty plea of December 10, 2002, no waiver was given of the right to appeal the jurisdictional decision of the Hearing Officer and, consequently, the conviction.

36The constable’s appeal to OCCPS sought to have the finding of misconduct overturned because the respondent had failed to comply with the mandatory time period set out in s. 69(18) of the Act.

37Where a nurse’s conduct was in question, her consent to an adjournment of the inquiry did not confer jurisdiction upon the inquiry committee. Counsel’s agreement to the adjournment did not estop the nurse from successfully challenging the jurisdiction of the committee (see: M.A.R.N. v. Tataryn, [1990] M.J. No. 209 (Q.B.).

38In Rosenfeld and College of Physicians and Surgeons, 1969 246 (ON SC), [1970] 2 O.R. 438 (H.C.), Fraser J. held that waiver cannot remedy a nullity nor can it give jurisdiction.

39The House of Lords, in Essex County Council, above, found that no consent can estop the consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction.

40Even if it were possible for a waiver to confer jurisdiction where none exists, the waiver must be explicit. It must be clear, unequivocal, express and informed. There was no such waiver in this case (see: Earth Vision Products Inc. v. Saskatchewan Wheat Pool, [1996] S. J. No. 664 (Q.B.)). See also: Goertz v. College of Physicians and Surgeons for Saskatchewan, 1989 4748 (SK CA), [1989] S.J. No. 425 (C.A.).

41I find that Constable Gough did not waive his right to appeal the jurisdictional issue to OCCPS by acknowledging an infraction of the Act.

42The appeal is allowed and the decision of OCCPS is set aside, as is the decision of the Hearing Officer. On consent, there is no order as to costs.