Watson v. Catney, the Chief of The Peel Police Service [Indexed as: Watson v. Catney]

84 O.R. (3d) 374

Court of Appeal for Ontario,

Laskin, MacPherson and Lang JJ.A.

January 26, 2007

Administrative law -- Judicial review -- Standing -- Decision of hearing officer appointed by chief of police to conduct discipline hearing under Police Services Act that of chief -- Chief having no right under Police Services Act to appeal hearing officer's decision -- Chief not having standing to bring application for judicial review of his own delegate's decision -- Police Services Act, R.S.O. 1990, c. P.15.

A police constable was charged with criminal offences and also with discipline offences under the Police Services Act in respect of the same conduct. The Chief of Police appointed a hearing officer to conduct the discipline hearing. After he was acquitted of the criminal charges, the police constable moved for a stay of the discipline proceedings on the basis of abuse of process. The hearing officer granted the motion. Under the Act, the Chief had no right to appeal a hearing officer's decision. The Chief brought an application for judicial review of the decision. The Divisional Court rejected the police constable's challenge to the Chief's standing to seek judicial review of what the constable described as the Chief's own decision, holding that the Chief had a bona fide interest in ensuring that the power given to the hearing officer was properly exercised, and that there was no one but the Chief to raise the question of whether the processes under the Act have been properly followed. The application was granted. The police constable appealed.

Held, the appeal should be allowed. [page375]

Once a discipline hearing is ordered under the Act, the hearing officer will be either the Chief or the Chief's delegate. Accordingly, when the Chief chooses to appoint a hearing officer, the Chief and the hearing officer are synonymous. The shared or synonymous identity of the Chief and his delegate qua hearing officer is affirmed by the wording of s. 70(6) of the Act, which discusses the appellate jurisdiction of the Commission in terms of its review of the decision of the "chief of police". Section 70(1) of the Act grants a right of appeal to a police officer or complainant, but not to the Chief. It is logical and consistent with the Act that the Chief not enjoy a right of appeal because the Chief is, in effect, the decision-maker -- sometimes personally, and sometimes through the person he appoints to be the hearing officer. In logic and in policy, if the Chief cannot challenge the decision of his delegate by way of appeal, he should not be able to mount a similar attack through the vehicle of judicial review.

APPEAL from the order of the Divisional Court (Farley, Swinton and Croll JJ.), [2005] O.J. No. 3525, allowing an application for judicial review of a decision of a hearing officer granting a stay of discipline proceedings.

Cases referred to Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services) (2002), 2002 45090 (ON CA), 61 O.R. (3d) 649, [2002] O.J. No. 3737, 220 D.L.R. (4th) 86, 97 C.R.R. (2d) 271 (C.A.); Manitoba Chiropractors Assn. v. Alevizos, [2003] M.J. No. 206, 177 Man. R. (2d) 45, 304 W.A.C. 45, [2004] 2 W.W.R. 290, 2003 MBCA 80 (C.A.); R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, [1987] S.C.J. No. 71, 24 O.A.C. 321, 61 Sask. R. 105, 45 D.L.R. (4th) 235, 81 N.R. 161, [1988] 1 W.W.R. 193, 32 C.R.R. 219, 37 C.C.C. (3d) 385, 60 C.R. (3d) 193 (sub nom. Wigglesworth v. R.) Statutes referred to Police Services Act, R.S.O. 1990, c. P.15, ss. 64(1), (1.1), (7), (8), (10) [as am.], 68(1) [as am.], 69(14) [as am.], 70(1), (6) [as am.], 76(1) [as am.]

Harry Black, for appellant. Andrew Heal, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Overview

[1] The principal issue on this appeal is the capacity of an administrative official to seek judicial review of his or her own decision.

[2] The appellant, Police Constable Carlton Watson, a police officer with the Peel Police Service, was acquitted of criminal charges of theft and possession of stolen property. In relation to the same conduct, he was also charged with discipline offences under the Police Services Act, R.S.O. 1990, c. P.15 (the "PSA"). After his criminal acquittal, P.C. Watson moved for a stay of the discipline proceedings on the basis of abuse of process. [page376]

[3] The discipline proceedings were conducted by a hearing officer, Superintendent Roman Boychuk, who was appointed by the respondent, Noel Catney, Chief of the Peel Police Service (the "Chief"). The hearing officer granted P.C. Watson's motion and stayed the discipline proceedings.

[4] Under the PSA, the Chief has no right to appeal the hearing officer's decision. However, the Chief applied for judicial review. A panel of the Divisional Court agreed with the Chief's submissions, quashed the stay of proceedings, and remitted the matter for a discipline hearing.

[5] P.C. Watson sought and was granted leave to appeal the Divisional Court's decision to this court. His position is that the Chief cannot seek judicial review of his own delegate's decision since he has no right of appeal under the PSA and no actor can seek a review of himself. The Chief's position is that where there has been no discipline hearing on the merits because of an erroneous preliminary decision by the hearing officer, the Chief can properly seek judicial review of the decision so that the discipline hearing can proceed to a determination on the merits.

B. Facts

[6] In the autumn of 2000, P.C. Carlton Watson was on paid leave from his duties as a police officer because of high blood pressure and migraines. P.C. Watson, who was renovating his house, made frequent visits to a Home Depot store in Mississauga and struck up a relationship with a cashier, Kathy Burton. P.C. Watson visited Burton's home on two occasions at her invitation and loaned her $100 towards the purchase of prescription glasses.

[7] On November 1, 2000, a Home Depot loss prevention officer, Frank Meurer, observed P.C. Watson going through Burton's cash register position on two separate occasions. Certain items were scanned in and then voided by Burton so that P.C. Watson did not end up paying for them. The items were a range hood, two garage door openers, a wood shelf and wooden spindles. After P.C. Watson exited the store, Meurer recorded his licence plate number. A judicially authorized search turned up the items in their original packaging in P.C. Watson's garage.

[8] P.C. Watson was arrested and charged that day with theft under $5,000 and possession of stolen property. Burton pleaded guilty to theft and testified at P.C. Watson's trial.

(1) The criminal trial

[9] Justice Agro acquitted P.C. Watson of both charges. She concluded her judgment in this fashion: [page377]

Mr. Watson has denied any fraudulent intent. Although his conduct might be viewed as suspicious, his explanation for what happened at the cash register, for his return into the store, and for his failure to act immediately to restore the goods to Home Depot might reasonably be true. His evidence in this respect was not shaken in cross-examination. I am unable to reject his testimony that he had an innocent intention and he will, therefore, be acquitted of the charge of theft.

Mr. Watson's possession of the goods was temporally derivative to the alleged theft and not possessed for sufficient enough time for the elements of knowledge and control to crystallize independently. The dismissal of the theft must lead to a dismissal of the possession charge.

(2) The criminal appeal

[10] The Crown appealed the acquittal on the possession charge only. On November 14, 2004, Speyer J. dismissed the appeal. He said:

It's my view that the strong findings of the trial judge on the theft charge that the appellant did not act in a dishonest or morally reprehensible fashion when viewed in light of all of the circumstances really preclude a conviction on the possession charge.

(3) The discipline hearing

[11] P.C. Watson was also charged with discreditable conduct under the PSA. Those charges were adjourned pending the outcome of the criminal proceedings. On December 9, 2003, the Chief appointed Superintendent Boychuk as a hearing officer to conduct the discipline hearing. The Chief's authorization to Superintendent Boychuk stated in part:

You are hereby authorized pursuant to Section 76(1) to exercise any power or perform any duty of the Chief of Police as required pursuant to Part V of the Police Services Act of Ontario.

[12] In July 2004, after his acquittal at the criminal trial and the dismissal of the criminal appeal, P.C. Watson brought a motion to stay the discipline charges. After consideration of written and oral submissions from both parties, as well as an impartial legal opinion permitted by s. 69(14) of the PSA, Superintendent Boychuk stayed the discipline charges on the basis of abuse of process.

[13] The hearing officer recognized that criminal and disciplinary charges arising out of the same conduct were not inherently incompatible:

As a general rule well supported in the law, criminal and disciplinary proceedings can flow out of the same set of facts. The Supreme Court of Canada in Wigglesworth [See Note 1 below] has clearly said that wrongful conduct can have multiple [page378] aspects leading to multiple hearings. In addition, such multiple hearings can take place whether the criminal proceedings have resulted in conviction or acquittal (again as articulated in Wigglesworth at para. 27).

[14] However, the hearing officer held that the general rule did not apply in P.C. Watson's case. He carefully reviewed Agro J.'s reasons for acquitting P.C. Watson in the criminal trial and concluded that if the discipline hearing proceeded it would amount to an impermissible re-litigation of the essential issue decided by the trial judge. He reasoned:

[T]he central and only real issue at the criminal trial was credibility. And my assessment upon review of her Reasons for Sentence [sic] is that Justice Agro, in acquitting Mr. Watson, has made a determinative finding with respect to the credibility of the witnesses.

Her Honour specifically outlined the factors which reflected poorly on the credibility of Ms. Burton and in addition found the evidence of Frank Meurer of Mr. Watson's aesuspicious conduct' . . . as highly speculative. Obviously, under those criteria, it would be given little if any weight. With respect to Mr. Watson, she indicated that his evidence was not shaken in cross-examination and she could not reject his evidence that he had an innocent intention.

As a result . . . it is my conclusion, based on my analysis of the law and the particular facts of this case, that in acquitting Carlton Watson, Justice Agro made determinative findings with respect to the credibility of the witnesses, which bind me as a Hearing Officer in these proceedings.

[15] Based on this analysis, the hearing officer stayed the discipline proceedings as an abuse of process.

(4) The Divisional Court decision

[16] The Chief has no right of appeal under the PSA. However, he brought an application for judicial review of the hearing officer's decision.

[17] P.C. Watson challenged the Chief's standing to seek judicial review of what he described as the Chief's own decision. The Divisional Court rejected this submission. The court observed that "there has been no final decision by the Hearing Officer" and "the Chief's concern is to see that there is a decision on the merits" and concluded [at para. 11]:

The Chief has ultimate responsibility for the disciplinary processes that are provided for in the Act. As such, the Chief has a bona fide interest in ensuring that the power given to the Hearing Officer to conduct a hearing is properly exercised. Indeed, on the facts of this case, there is no one but the Chief to raise the question of whether the processes under the Police Services Act have been properly followed. If the Chief did not have standing, this Court would be denied legitimate submissions that assist in our review function. [page379]

[18] Turning to the merits, the Divisional Court disagreed with the hearing officer's assessment of the import of the criminal trial judge's assessment of the credibility of various witnesses including, especially, P.C. Watson. The court said [at para. 19]:

However, on a fair reading of the trial judge's reasons, we do not consider that she made a determinative positive judicial finding about P.C. Watson's credibility. She did not clearly state that she accepted P.C. Watson's evidence, nor did she find that his explanation was credible. She simply found that it might reasonably be true, and she could not reject it. In other words, she could not say it was false. In our view, the trial judge was correctly applying the approach to assessing evidence, including an accused's testimony, approved in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), which directs a trier of fact to acquit even if he or she does not believe the evidence of the accused, if the evidence of the accused gives rise to a reasonable doubt about his or her guilt.

[19] The Divisional Court also rejected the hearing officer's conclusion that allowing the discipline hearing to proceed would amount to re-litigation of P.C. Watson's acquittal. The court reasoned [at para. 21]:

To allow the disciplinary hearing to proceed does not bring the criminal acquittal into question. The criminal trial and the disciplinary hearing, while focused on the same factual matrix, are separate inquires, with distinct purposes and governed by different burdens of proof. Discreditable conduct is set out in section 2(1) of the Code of Conduct set out in Part V of O. Reg. 123/98 to the Police Services Act. It includes "acting in a manner likely to bring discredit upon the reputation of the police force". This is very different from the essential elements that constitute the criminal offences of theft and possession of stolen property. As this Court stated in Gillen v. College of Physicians and Surgeons of Ontario, 1989 4363 (ON SC), [1989] O.J. No. 470 (Div. Ct.), there is "no authority or logic for the proposition that a criminal acquittal is in disciplinary proceedings evidence or proof that the gravamen of the criminal charge was unfounded or untrue".

[20] In the result, the Divisional Court quashed the decision of the hearing officer and directed him to hold a hearing into the allegations of misconduct against P.C. Watson.

[21] P.C. Watson sought and obtained leave to appeal to this court.

C. Issues

[22] The issues are:

(1) Did the Divisional Court err in determining that the Chief had standing to seek judicial review of the hearing officer's decision staying the discipline proceedings against P.C. Watson as an abuse of process?

(2) If the answer to (1) is "No", did the Divisional Court err by quashing the decision of the hearing officer and directing [page380] him to hold a hearing into the allegations of misconduct against P.C. Watson?

D. Analysis

(1) Standing

[23] The core of the Divisional Court's reasoning on the standing issue is anchored in its observation that "the question of standing as it relates to the Chief of Police should not be analyzed on the basis that the Chief is synonymous with the decision-maker". The court explained its observation in this fashion [at para. 8]:

Rather, pursuant to the Police Services Act, complaints about police misconduct must be investigated and a report prepared, not by the Chief, but by his delegate (s. 64(1)). On the basis of the report, the Chief must decide if the officer's conduct may constitute misconduct. If so, the Chief shall hold a hearing pursuant to s. 64(7) of the Act. However, as noted by the Court of Appeal in Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services), 2002 45090 (ON CA), [2002] O.J. No. 3737 at paras. 59 & 61, "the Chief is to investigate, not adjudicate. That is why the Chief does not hold a hearing . . . The role of the Chief is to decide whether a hearing should be held and not what the result of a hearing should be . . ." As such, the Chief may delegate his or her power to adjudicate the alleged police misconduct to a Hearing Officer, pursuant to s. 76(1) of the Police Services Act, as the Chief has done in this case.

[24] With respect, this analysis is grounded in a misreading of key provisions of the PSA. Contrary to the Divisional Court's analysis, the structure and wording of the PSA establish that, once a discipline hearing is ordered, the hearing officer will be either the Chief or the Chief's delegate. Accordingly, when the Chief chooses to appoint a hearing officer, the Chief and the hearing officer are synonymous.

[25] In order to support this conclusion, it is necessary to set out several sections of the PSA:

64(1) . . . the chief of police shall cause every complaint made about the conduct of a police officer, other than the chief of police or deputy chief of police, to be investigated and the investigation to be reported on in a written report.

64(7) . . . 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.

70(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held by the chief of police under [page381] subsection 64(7) or by the board under subsection 65(9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

70(6) The Commission may confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police or board, as the case may be.

76(1) A chief of police may authorize a police officer . . . to conduct a hearing under subsection 64(7) or to act under subsection 64(11) or (15).

(Emphasis added)

[26] It is clear from these provisions that the Chief plays two roles in the discipline process. First, he must decide whether a hearing is warranted (s. 64(1) and (7)); this is the investigatory step in the process. Second, the Chief is central to the hearing process -- either he conducts the hearing himself (s. 64(7)) or he delegates the task to a police officer (s. 76(1)). The shared or synonymous identity of the Chief or his delegate qua hearing officer is affirmed by the wording of s. 70(6) which discusses the appellate jurisdiction of the Commission in terms of its review of the decision of "the chief of police".

[27] With respect, the Divisional Court conflated the two steps in the process. The court referred to s. 64(7) of the PSA and to this court's decision in Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services) ("CCLA") (2002), 2002 45090 (ON CA), 61 O.R. (3d) 649, [2002] O.J. No. 3737 (C.A.), and concluded that the Chief's role is investigatory. That is true for the first step in the process which culminates in a decision whether a hearing should be held. This is, in essence, the gatekeeper function, and CCLA dealt with the Chief's role with respect to this function. Unfortunately, the Divisional Court extended this analysis into the second stage of the discipline process. The analysis does not fit there because it is clear from the various statutory provisions set out above that the Chief has a pre-eminent role in the second stage of the discipline process and that his role is squarely adjudicative in nature.

[28] There is a second reason why, in my view, the Divisional Court's analysis is flawed. Section 70(1) of the PSA grants a right of appeal to a police officer or complainant, but not to the Chief. In my view, it is logical and consistent with the PSA that the Chief not enjoy a right of appeal because the Chief is, in effect, the decision-maker -- sometimes personally and other times, as in this case, through the police officer he appoints to be the hearing officer. In logic and in policy, if the Chief cannot challenge the decision of his delegate by way of appeal, he should not be able to [page382] mount a similar attack through the vehicle of judicial review. Such an attack "would be allowing that to be done indirectly which cannot be done directly": see Manitoba Chiropractors Assn. v. Alevizos, 2003 MBCA 80, [2003] M.J. No. 206, 177 Man. R. (2d) 45 (C.A.), at para. 28.

[29] In addition, the absence of a right of appeal for the Chief, and rejection of standing for the Chief to challenge a decision of a hearing officer by way of judicial review, make sense in light of the Chief's pervasive role in the discipline process. The Chief is the principal actor in this process -- he may make a complaint about the conduct of one of his police officers (s. 64(1.1)); he shall cause the complaint to be investigated (s. 64(1)); he must determine if the impugned conduct might constitute misconduct and, if it does, he must hold a hearing (s. 64(7)); he designates the prosecutor at the hearing (s. 64(8)); he decides whether to conduct the hearing himself or to authorize another police officer to conduct it on his behalf (ss. 64(7) and 76(1)); and he must take action against a police officer if misconduct is proven at the hearing (ss. 64(10) and 68(1)).

[30] If, in the absence of an explicit appeal right, the Chief were granted standing to review his decision or, as in this case, the decision of a police officer he has delegated to hold the hearing on his behalf, it could erode confidence -- on the part of police generally, those subject to discipline proceedings, and the public at large -- in the independence and fairness of the discipline process. The PSA reflects principles of fairness and natural justice in that it does not allow the Chief, who has control of virtually all aspects of the discipline process, to seek to overturn a decision he does not like by a hearing officer he appointed. The Chief concedes that he cannot do this by way of appeal; in my view, a proper interpretation of the PSA, and considerations of principle and policy, preclude an identical attack grounded in judicial review.

(2) The merits

[31] In light of my answer to the first question, it is, strictly speaking, not necessary to address this issue. However, for the sake of completeness, I would indicate that I agree with the Divisional Court's analysis and conclusion on this issue: the hearing officer erred by staying the discipline proceedings against P.C. Watson.

E. Disposition

[32] I would allow the appeal, set aside the Order of the Divisional Court, and reinstate the decision of the hearing officer. [page383]

[33] The parties agree that there should be no order respecting costs of the appeal.

Appeal allowed.

Notes ----------------

Note 1: R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, [1987] S.C.J. No. 71.