Court File and Parties
CITATION: Hawkes v. McNeilly, 2016 ONSC 6402
DIVISIONAL COURT FILE NO.: 481/15
DATE: 20161020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, NORDHEIMER AND C. HORKINS JJ.
BETWEEN:
VINCE HAWKES (COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE)
Applicant
– and –
GERRY MCNEILLY (INDEPENDENT POLICE REVIEW DIRECTOR)
Respondent
Counsel: Christopher Diana, for the Applicant Mark Sandler, for the Respondent
HEARD: September 28, 2016 in Toronto
REASONS FOR DECISION
MOLLOY J:
Introduction
[1] The Commissioner of the Ontario Provincial Police (“the Commissioner”), seeks an order in the nature of certiorari quashing the Order of the Independent Police Review Director (“the Director”) ordering the Commissioner to conduct a misconduct hearing under the Police Services Act[^1] as to whether an OPP officer was guilty of neglect of duty in relation to: (a) evidence he gave before a Legislative Committee (“the Committee”); and (b) information he failed to include in an Information To Obtain (“ITO”) a search warrant.
[2] The Commissioner argues that the conduct at issue was incapable of being considered neglect of duty. Further, with respect to the testimony before the Legislative Committee, the Commissioner takes the position that this is protected by Parliamentary privilege.
[3] I agree that the conduct of the officer is not capable of constituting neglect of duty, both with respect to the testimony before Committee and his preparation of the ITO. Accordingly, certiorari shall issue to quash the Director’s order requiring the Commissioner to hold a hearing. Given that finding, it is not necessary to decide the privilege issue, and I therefore do not do so. My detailed reasons follow.
Factual Background
[4] The backdrop to this application is an investigation by the OPP into the alleged destruction or removal of documents relating to the cancellation of gas plant contracts during the time when Dalton McGuinty was Premier of Ontario. Laura Miller, the Deputy Chief of Staff for the Premier at the time, was a key witness from whom the OPP sought a statement. An appointment was arranged to interview Ms. Miller, which she cancelled on advice from her lawyer. During conversations between OPP investigators and Ms. Miller, and subsequently with her lawyer when Ms. Miller was determined to be a “person of interest,” Ms. Miller repeatedly refused to provide a statement or to be interviewed, unless the police would provide written assurance that her statement would not be used against her in any proceedings. The police would not provide such assurances. Accordingly, Ms. Miller never provided a statement.
[5] In February 2014, the OPP prepared material to obtain a search warrant to seize the hard drives of 24 computers from the Premier’s office, including the computer associated to Laura Miller. The deponent on the ITO was Detective Constable Andre Duval. His work was subject to the supervision of the OPP lead investigator, Detective Sergeant Brian Mason. The ITO asserts that there is reason to believe David Livingston, Dalton McGuinty’s Chief of Staff, committed breach of trust by arranging for the documents to be erased from the hard drives of 24 computers in the Premier’s office. Others alleged to have been involved were Wendy Wai (Mr. Livingston’s executive assistant), Laura Miller and Peter Faist. Mr. Faist was not a government employee, but was the life partner of Laura Miller and had computer expertise. He is alleged to be the person who actually performed the technical services involved in wiping the hard drives.
[6] The allegations in support of the search warrant were set out in Appendix C of the ITO, comprising 42 pages of single-spaced densely packed text. At page 24, in the course of describing the investigative steps taken by the OPP, under the heading “Interviews of Mr. David Livingston, Ms. Laura Miller and Ms. Wendy Wai,” D.Cst. Duval stated, “As of January 14, 2014, the above individuals have refused to provide a statement to police.”
[7] The ITO was made available for public and media access on or about March 27, 2014. On April 3, 2014, in response to a summons, D.Cst. Duval gave sworn evidence at the Standing Committee on Justice Policy (“the Committee”) of the Legislative Assembly of Ontario. He made a brief overview statement about the investigation and his role in it and then answered questions from Committee members.
[8] Committee member Jagmeet Singh M.P.P. asked D.Cst. Duval, “Did anyone refuse to provide an interview from Queen’s Park?” D.Cst. Duval responded:
To my knowledge, some people refused to provide a statement. Mr. David Livingston declined to speak with us, Ms. Laura Miller declined to speak with us, Mr. Peter Faist declined to speak with the investigators, and Ms. Wendy Wai declined to speak with the investigators at this time. Obviously, a word of caution: In my experience, sometimes people change their mind as the investigation is ongoing, but as far as I know, as of today, these people have declined.”[^2]
[9] Later, an exchange occurred between Committee member Lisa MacLeod M.P.P. and D.Cst. Duval:
Ms. Lisa McCleod: Okay, Thank you. Did Laura Miller and Peter Faist give an explanation as to why they refused to speak to the OPP?
Mr. Andre Duval: No.
Ms. Lisa McLeod: Are you aware that Laura Miller’s lawyer is at the moment suggesting that she did in fact give a statement to the police for this investigation?
Mr. Andre Duval: To my knowledge, as of today, 3 April, 2014, she has declined to provide a statement to the OPP investigators.[^3]
[10] Subsequently, criminal charges were laid against Ms. Miller and others arising from the alleged destruction of computer files. Her charges remain before the court.
Ms. Miller’s Complaint to the Independent Police Review Director
[11] On September 14, 2014, Ms. Miller filed a complaint with the Office of the Independent Review Director (“OIPRD”) against D.Sgt. Mason and D.Cst. Duval alleging that the OPP had deliberately and falsely suggested, both through a sworn statement and sworn testimony, that she had refused to assist the OPP in its investigation into the alleged destruction of records. She stated in the complaint that the OPP had been told on a number of occasions that she would provide a statement “provided that it was agreed that nothing I said would be used against me in any proceeding.” She alleged that the OPP were attempting to use their superior power to override her will in breach of her constitutional rights under s. 7 of the Charter.
[12] As provided for in the Police Services Act, the Director retained the complaint and caused his staff to conduct an investigation of the allegations of police misconduct.[^4] Upon receipt of the written investigative report, the Director determined that the allegations of discreditable conduct against both officers and the allegation of deceit against D.Cst. Duval were not substantiated. However, the Director ordered the Commissioner of the OPP to conduct a misconduct hearing with respect to two counts of neglect of duty against D.Cst. Duval: (1) for failing to disclose in the ITO the reason why Ms. Miller declined to provide a statement to the OPP; and (2) for failing to disclose to the Committee the reason why Ms. Miller declined to provide a statement to the OPP.
[13] The parties agree that Ms. Miller refused to give a statement to the police and that the position taken by her and her lawyer was that she would only give a statement if she was guaranteed immunity, such that anything in her statement could not be used against her in subsequent proceedings.
The Remedy of Certiorari
[14] The Commissioner has no right of review or appeal from a decision of the OIPRD ordering a misconduct hearing. Unlike the parties, the Commissioner also has no right of review or appeal at the conclusion of the hearing. It is for this reason that any remedy available to the Commissioner would be at this stage and would only be by way of the prerogative writs.
[15] Certiorari is an available remedy where a public body, including a statutory office holder exercising a statutory power of decision, has made a jurisdictional error or an error of law on the face of the record.[^5]
[16] It was accepted by the parties, and I agree, that the OIPRD was exercising a statutory power of decision in ordering the Commissioner to conduct a hearing.[^6]
[17] There is an issue as to whether certiorari would be available in these circumstances based on an error of law on the face of the record, or if its availability is limited to errors of jurisdiction. It is not necessary to resolve this issue as I find an error of jurisdiction. To constitute an error of jurisdiction, this Court must be satisfied that the conduct the Director relied upon for the underlying charge could not possibly constitute the offence charged.[^7]
Analysis: The ITO Allegation
[18] The Director concluded that there was “sufficient evidence for [him] to determine that there are reasonable grounds to believe the misconduct of neglect of duty had occurred” because D.Cst. Duval “failed to disclose in an Information to Obtain a Search Warrant the reason why [Ms. Miller] declined to provide a statement to the police,” contrary to s. 2(1)(c)(i) of the Code of Conduct.[^8]
[19] The Code of Conduct, which is a Regulation under the Police Services Act, defines what constitutes neglect of duty as follows:
2 (1) Any chief of police or other police officer commits misconduct if he or she engages in,
(c) neglect of duty, in that he or she,
(i) without lawful excuse, neglects or omits promptly and diligently to perform a duty as a member of the police force.[^9]
[20] It is well-settled that there is an obligation on a deponent to make full, frank and fair disclosure in an ITO. It is debatable whether it was relevant for D.Cst. Duval to state in the ITO that several persons of interest had declined to be interviewed by the police. Arguably, it had some marginal relevance to show good faith efforts by the police to obtain voluntary statements before resorting to seeking a court order authorizing seizure of computer hard drives from the Office of the Premier. Even if not technically necessary, there was certainly nothing improper in making such a statement.
[21] However, there could be no relevance at all in any “reason”, or “explanation” or “excuse” or “precondition” given for anyone’s refusal to provide a statement. Such information is completely irrelevant to whether there are reasonable and probable grounds for believing that the computer hard drives sought will provide evidence of the offence under investigation. Indeed, if the deponent had included the information that Ms. Miller would only agree to be interviewed if her statement could not be used against her, it might well be said that this was an improper injection of innuendo and speculation, attempting to support an inference that Ms. Miller knew she had information that implicated her in criminal wrongdoing.
[22] There can be no neglect of duty unless there is first a duty. The duty of the deponent of an ITO is to provide full, fair and frank disclosure of all relevant information. There can be no duty to provide irrelevant information. The failure of an officer to include in an ITO information about a suspect that was both irrelevant and potentially incriminating is the opposite of misconduct. Police officers preparing material for a search warrant are aware that the ITO will almost inevitably become public, a fact that would have been abundantly clear to D.Cst. Duval in this case, particularly given the already existing press coverage. How much tangential or background information to include in an ITO is a matter of judgment for an officer to exercise. Given the circumstances of this case, D.Cst. Duval cannot be faulted for exercising his judgment in the manner in which he did.
[23] Accordingly, the facts relating to the failure to add this information to the ITO are incapable of supporting the charge of neglect of duty. It cannot possibly amount to police misconduct in this context and, therefore, the Director acted outside his jurisdiction in ordering a hearing on this allegation.
Analysis: Testimony Before the Committee
[24] The second charge of misconduct that the Director referred for a hearing is based on the same section of the Code of Conduct dealing with neglect of duty and is particularized as D.Cst. Duval having “failed to disclose to the Ontario Legislative Standing Committee on Justice Policy the reason why [Ms. Miller] declined to give a statement to the OPP.”[^10]
[25] The position that Ms. Miller took throughout the investigation was that both the ITO and the testimony to the Committee contained false statements. She maintained that she was always prepared to be fully cooperative with the OPP, subject to the proviso that nothing she said could be used against her. D.Sgt. Mason and D.Cst. Duval, when interviewed by the OIPRD, took the position that the information in the ITO and the testimony to the Committee were accurate. Ms. Miller was a suspect. She was given the opportunity to cooperate with the police by providing a statement. She was only prepared to do so if the statement could never be used against her, a condition that was not acceptable to the police in the circumstances. They considered this to be a refusal to cooperate.
[26] D.Cst. Duval, when interviewed by the OIPRD, explained that he believed he was giving accurate information to the Committee. He considered it would have been “unfair” to Ms. Miller to provide the additional information that she wanted immunity in exchange for her cooperation with the police, that he could “imagine the firestorm” that would have been created if he had provided that information and that there would have been “a lot more damage” to her if he had done so.
[27] In the first exchange relied upon by respondent, D.Cst. Duval was asked a direct question about who at Queen’s Park had refused to provide an interview to the investigators. He merely provided the list of people who had refused.
[28] In the second exchange, D.Cst. Duval was asked if Laura Miller gave an “explanation as to why” she refused to be interviewed, to which D.Cst. Duval simply answered “No.”
[29] It is worth noting that the precise language of this charge is a “failure to disclose” and not “making a false statement.” Both the content of the ITO and the testimony to the Committee were also the subject of charges against D.Cst. Duval framed in deceit. The Report, which was accepted by the Director, defined the offence of deceit as “knowingly making a false statement.” The Report stated, “When Detective Constable Duval testified before the Legislative Committee he should have explained why the Complainant declined to give a statement; however, this does not amount to the misconduct of deceit.” It then went on to find that the allegation of deceit was not substantiated, which also was adopted by the Director.[^11]
[30] To constitute neglect of duty, the impugned conduct must include an element of willfulness in the police officer’s neglect or there must be a degree of neglect which would make the matter cross the line from a mere job performance issue to a matter of misconduct.[^12]
[31] Deliberately lying to the Committee might well constitute neglect of duty of the kind that would amount to misconduct. However, the Director determined that D.Cst. Duval did not deliberately lie to the Committee.
[32] With respect to the first question about who had refused to provide a statement, D.Cst. Duval answered truthfully and in a completely straightforward manner. He simply provided the list requested. There was no duty or requirement for him to elaborate on that answer by suggesting reasons for why any of those parties refused to provide a statement. Given that his answer was the truth and completely responsive to the question asked, it is clear that this cannot be a basis for a finding of neglect of duty.
[33] With respect to the second question, D.Cst. Duval answered “No” when asked if Ms. Miller gave an “explanation” for her refusal.
[34] The respondent argues that this constitutes a basis for neglect of duty, and therefore misconduct within the meaning of the Police Services Act.
[35] In his factum, and in the course of oral argument, the applicant maintained that it was not possible for D.Cst. Duval to provide a “reason” or “explanation” for Ms. Miller’s refusal because she never gave one. As the factum points out, “By insisting on immunity, Ms. Miller set out a precondition to her cooperation. A precondition is not a reason.”
[36] There is considerable force to this argument. A citizen is not required to give a statement to police, but rather is entitled under the Charter to remain silent. A person might refuse to give a statement on general principle, relying on the advice of counsel, and standing on her rights under the Charter. Or, a person might refuse to give a statement out of fear of incriminating herself. Or, a person might refuse to give a statement to protect somebody else. Or, a person might refuse to give a statement out of antipathy towards the police. One might draw the inference that the reason a person chooses to seek immunity from prosecution based on anything she might say in a statement to the police is because she knows she is implicated in criminal conduct in some way. However, that is nothing more than speculation. The person in question has not said why she will not speak to the police absent a grant of immunity; she has merely said she will only talk to the police if that grant of immunity is given.
[37] This is not a black and white issue. More information could have been provided, but the answer given was truthful. The Director recognized this when he concluded that there was no basis for believing that D.Cst. Duval had knowingly made a false statement to the Committee. Given the type of wilful conduct required to constitute neglect of duty, it is impossible to see how that same testimony can constitute neglect of duty. When asked by the Committee if Ms. Miller had provided an explanation, D.Cst. Duval could have revealed the conditions set by Ms. Miller before she would agree to provide a statement. Perhaps nobody would have faulted him for doing so. But that is not the same as D.Cst. Duval having a duty to do so. He considered that doing so was unnecessary, would be unfair to Ms. Miller, and was potentially damaging to her. This was a reasonable judgment call. He therefore answered “No,” which the Director has determined cannot amount to deceit. There being no duty to volunteer information that was reasonably considered by the officer to be extraneous and unfair, it is difficult to see how failing to do so could constitute neglect of duty.
[38] Accordingly, I find that the Director was without jurisdiction in ordering a hearing based on neglect of duty in respect of D.Cst. Duval’s testimony before the Committee.
[39] Given that conclusion, it is not necessary to decide whether the testimony before the Committee was protected by privilege, and I decline to do so.
Conclusion
[40] The application is granted and the decision of the Director dated July 15, 2016 ordering a misconduct hearing on two counts of neglect of duty is quashed. The parties have agreed that there shall be no order as to costs.
MOLLOY J.
I agree: _______________________________ NORDHEIMER J.
I agree: _______________________________ C. HORKINS J.
Date: October 20, 2016
CITATION: Hawkes v. McNeilly, 2016 ONSC 6402
DIVISIONAL COURT FILE NO.: 481/15
DATE: 20161020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, NORDHEIMER AND C. HORKINS JJ.
BETWEEN:
VINCE HAWKES (COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE)
Applicant
– and –
GERRY MCNEILLY (INDEPENDENT POLICE REVIEW DIRECTOR)
Respondent
REASONS FOR DECISION
Molloy J.
Released: October 20, 2016
[^1]: Police Services Act, RSO 1990, c P 15. [^2]: Ontario, Legislative Assembly, Standing Committee on Justice Policy, Official Report of Debates (Hansard), 40th Parl, 2nd Sess, No 57 (April 3, 2014) at 1337-38. [^3]: Ibid, at 1344. [^4]: Police Services Act, supra Note 1, ss 58, 59, 61, 66, 68, 72 and 80. [^5]: Judicial Review Procedure Act, RSO 1990, c J 1, s 2(2); Martineau v. Matsqui Institution, 1979 184 (SCC), [1980] 1 S.C.R. 602; Cunningham v. Lilles, 2010 SCC 10, [2010] 1 S.C.R. 331 [^6]: Endicott v. Ontario (Independent Police Review Director), 2014 ONCA 363. [^7]: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828; R. v. Russell, 2001 SCC 53, 2001 SCR 53, [2001] 2 S.C.R. 804 at paras. 19-23; Skogman v. The Queen, 1984 22 (SCC), [1984] 2 S.C.R. 93, 11 D.L.R. (4th) 161, 41 C.C.C. (3d) 1 [^8]: Decision of the Director dated July 7, 2015, Record of Proceedings, Tab 6, p 2. [^9]: O Reg 123/98 General, s 2(1)(c)(i). [^10]: Decision of the Director dated July 7, 2015, Record of Proceedings, Tab 6, p 2. [^11]: OIPRD Investigative Report dated July 15, 2015, Record of Proceedings, Tab 8A, p 40; Decision of the Director dated July 7, 2015, Record of Proceedings, Tab 6, p 1. [^12]: G.(P.) v. Ontario (Attorney General), 90 OAC 103, [1996] OJ No 1298 (Div.Ct.) at para 83.