Court File and Parties
DIVISIONAL COURT FILE NO: DC-551-14
DATE: 20151211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GORDON R.S.J., MOLLOY AND SANDERSON JJ.
BETWEEN:
DETECTIVE CONSTABLE SALVATORE AMORMINO (OPP)
Applicant
– and –
POLICE SERVICES BOARD (OPP), SUPERINTENDENT ROBIN D. MCELARY-DOWNER (FORCE ADJUDICATOR – OPP), COMMISSIONER OF PROVINCIAL POLICE (OPP), J.V.N. (VINCE) HAWKES, MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, ATTORNEY GENERAL OF ONTARIO, OPP ASSOCIATION (KARL WALSH)
Respondents
Rocco Galati, Counsel for the Applicant.
Ian J. Roland and Jessica (Jesse) Elders, Counsel for the Respondent, OPP Association (Karl Walsh).
Christopher Diana and Michael Dunn, Counsel for the remaining Respondents.
HEARD: December 7, 2015
Overview:
[1] The Applicant, Provincial Constable Salvatore Amormino, is a member of the Ontario Provincial Police force (the “OPP”) and of the Ontario Provincial Police Association (“OPPA”). He was suspended and is facing discipline proceedings for eight counts of workplace misconduct. He is also a defendant and cross-claimant in two civil actions which are related, in part, to the misconduct proceedings.
[2] The Applicant asks this court to find that the discipline proceedings contravene his rights under sections 11 and 7 of the Canadian Charter of Rights and Freedoms and, as a consequence, that the proceedings must be quashed. In the alternative, he asks that the discipline proceedings be stayed or in the further alternative that an order be made requiring the Ontario Provincial Police Association to fund counsel of his choice. Each remedy is sought in the context of the breach of one or more of the Applicant’s Charter rights.
Background
[3] The Ontario Provincial Police allege eight counts of workplace misconduct against the Applicant, including insubordination, breach of confidence, deceit, corrupt practice, and discreditable conduct. The allegations involve allegedly inappropriate business relationships and use of OPP resources, as well as failure to properly investigate a former business partner. These incidents are alleged to have occurred in 2013 and 2014. The Applicant is also a co-defendant (along with the Crown) and cross-claimant in two related law suits alleging malicious prosecution and negligence.
[4] The misconduct proceedings are brought against the Applicant under the provisions of Part V of the Police Services Act, R.S.O. 1990, c. P. 15.
[5] Complaints about the conduct of an OPP officer in Ontario may be made by members of the public or may be initiated internally. Most such complaints are referred to the Commissioner of the OPP who typically orders an investigation. Following the investigation, if the Commissioner believes on reasonable and probable grounds that the police officer’s conduct constitutes misconduct, he is required to convene a hearing. At a misconduct hearing, the Commissioner must designate either a current or retired police officer of equal or greater rank than the subject officer, or a person authorized under the Law Society Act to act as prosecutor. In addition, the Commissioner conducts the hearing or designates the person who conducts the hearing. The hearing must be conducted in accordance with the Statutory Powers Procedure Act. At the conclusion of the hearing, if misconduct is proven on clear and convincing evidence, the adjudicator appointed by the Commissioner is to take disciplinary action against the officer in accordance with section 85 of the Act, which may include, among other things, dismissal.
[6] The Applicant has put it basically as follows:
- Upon receipt of a complaint, the OPP conducts an investigation.
- The Commissioner receives a written report from the investigation and determines if there are reasonable grounds to believe there has been misconduct, and if so, refers the matter for adjudication.
- The Adjudicator is the Commissioner or the Commissioner’s designate.
- The prosecutor is the Commissioner designate.
- An OPP officer occupying an office at the OPPA determines what counsel is appointed to represent the subject officer at the discipline hearing.
[7] The Applicant contends that this legislated structure breaches his constitutional right to a fair hearing before an independent and unbiased tribunal.
Jurisdiction
[8] Under section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in: (1) proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari, or (2) proceedings by way of an action for a declaration or for an injunction or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
[9] The Applicant’s requests for relief fall under section 2(1).
Analysis
[10] The requests for relief made by the Applicant are predicated upon there being some breach of his rights as prescribed by the Canadian Charter of Rights and Freedoms.
[11] Although the Applicant urged us to accept that all tribunals must, as a starting point, be independent and free of bias, we are not satisfied that this is the case. In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch) 2001 SCC 52, [2001] 2 S.C.R. 781, the Supreme Court of Canada confirmed that, absent constitutional constraints, the degree of independence required of a particular tribunal is determined by its enabling statute. In the case before us, the Police Services Act expressly provides for the appointment of the adjudicator. Unless that appointment runs afoul of the constitution or is part of a process that does so, the legislature is entitled to have its determination of the degree of the adjudicator’s independence or bias respected.
Is There a Breach of the Applicant’s Section 11 Rights?
[12] As pointed out in R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, section 11 of the Charter applies to only criminal or penal matters and not to discipline proceedings. The proceedings against the Applicant involve only employment related discipline. There is no jurisdiction under the Police Services Act to impose incarceration or fines in misconduct proceedings. We conclude that section 11 is of no application and that the Applicant’s rights thereunder are not engaged.
Is There a Breach of the Applicant’s Section 7 Rights?
[13] In order to demonstrate a violation of section 7 of the Charter, the Applicant must show that the law interferes with, or deprives him of, his life, liberty or security of the person. Once he has established that section 7 is engaged, he must then show that the deprivation in question is not in accordance with the principles of fundamental justice. [See Carter v. Canada (Attorney General), 2015 SCC 5, [2015] S.C.J. No. 5].
[14] The Applicant argued that section 7 is engaged because his constitutionally protected procedural rights are put at risk by the legislation. We do not agree that there are stand-alone “procedural rights” guaranteed by section 7 of the Charter. There is only the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Although principles of fundamental justice may require that certain procedural safeguards apply to proceedings before a tribunal, those safeguards rise to constitutional prominence in the context of section 7 only if their failure results in the deprivation of life, liberty or security of the person.
[15] The Applicant also argued that section 7 is engaged because of the potential effect of the misconduct proceedings on his reputation. We disagree. Although respect for a person’s reputation, like respect for dignity of the person, is a value that underlies the Charter, it does not follow that protection of reputation or freedom from the stigma associated with something like disciplinary proceedings are independent constitutional rights afforded protection under section 7. [See Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] S.C.J. No. 43].
[16] The Applicant and the OPPA argued that as a consequence of the disciplinary proceedings the Applicant faces dismissal and ultimately the loss of his career as a police officer. They made a compelling argument that one’s ability to pursue a chosen profession is, or ought to be, a protected right under section 7, and that when that ability is determined through a discipline process that does not provide procedural fairness, there is a deprivation of the rights to liberty and security of the person that runs afoul of the principles of fundamental justice. The OPPA pointed to an emerging and developing line of jurisprudence under section 2 of the Charter which recognizes the right to work and the value of employment to the individual as worthy of Charter protection. However, those cases were not considered or decided in the context of section 7.
[17] In our view we are bound by the decision of the Ontario Court of Appeal in the case of Mussani v. College of Physicians and Surgeons of Ontario 2004 48653 (ON CA), [2004] O.J. No. 5176, which was a matter involving the application of section 7 of the Charter. In that case, the Court determined that “… all serious disciplinary measures, even draconian ones, are not prohibited by the Charter”. It found that: “The weight of authority is that there is no constitutional right to practise a profession unfettered by the applicable rules and standards which regulate that profession.” Although its findings were in the context of a physician, there is no reason why that same principle would not apply to a police officer. To accede to the OPPA argument would require us to reach a conclusion contrary to our Court of Appeal.
[18] In Carter, supra, the Supreme Court of Canada held that stare decisis is not a straightjacket that condemns the law to stasis. A lower court may reconsider settled rulings of a higher court when: (1) A new legal issue is raised; or (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Neither of these conditions is met in this case.
[19] In the result, the Applicant has not persuaded us that section 7 of the Charter is engaged by virtue of the application of Part V of the Police Services Act.
[20] Without a breach of a Charter right, we are without the jurisdiction to grant any of the relief requested by the Applicant.
[21] With respect to the Applicant’s request that the OPPA be ordered to pay for counsel of his choice in the disciplinary proceedings, there has been no authority cited to support this position. The OPPA owes no duty to the Applicant in respect of discipline proceedings and is not a party to those proceedings. It cannot be said to be an arm of the state such as to ground an award for advanced costs. We see no jurisdiction in this court to make the order.
[22] It follows that his application for judicial review must be dismissed.
Costs
[23] The Applicant is awarded all-inclusive costs in the amount of $5,000 against the OPP relative to the contested motion to stay the disciplinary proceedings pending outcome of this application.
[24] With respect to this application, the OPP is awarded costs of $10,000 and the OPPA is awarded costs of $5,000, both all inclusive.
Mr. Justice R. D. Gordon, R.S.J.
Madam Justice A. M. Molloy
Madam Justice M. A. Sanderson
Released: December 11, 2015
DIVISIONAL COURT FILE NO: DC-551-14
DATE: 20151211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GORDON R.S.J., MOLLOY AND SANDERSON JJ.
BETWEEN:
DETECTIVE CONSTABLE SALVATORE AMORMINO (OPP)
Applicant
– and –
POLICE SERVICES BOARD (OPP), SUPERINTENDENT ROBIN D. MCELARY-DOWNER (FORCE ADJUDICATOR – OPP), COMMISSIONER OF PROVINCIAL POLICE (OPP), J.V.N. (VINCE) HAWKES, MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, ATTORNEY GENERAL OF ONTARIO, OPP ASSOCIATION (KARL WALSH)
Respondents
REASONS FOR JUDGMENT
Released: December 11, 2015```