Boniface, Commissioner of the Ontario Provincial Police v. Silverman

[Indexed as: Ontario Provincial Police (Commissioner) v. Silverman]

49 O.R. (3d) 272

[2000] O.J. No. 2080

Court File No. Div. Ct. 170/99

Ontario Superior Court of Justice

Divisional Court

A. Campbell, MacFarland and Whalen JJ.

June 5, 2000

Police -- Discipline -- Penalty -- Retired police superintendent appointed to hold disciplinary hearing into allegations of misconduct by police constable -- Police Commissioner authorizing superintendent to "exercise any of the powers and perform any of the duties of the Commissioner" described in s. 76(1) of Police Services Act -- Superintendent convicting constable and imposing penalty -- Counsel for Commissioner and counsel for constable not objecting to procedure -- Act contemplating that hearing and sentencing are to be inseparable parts of same process -- Nothing in Act indicating that only Commissioner has jurisdiction to impose sentence -- Application by Commissioner to quash penalty on basis that Superintendent did not have power to impose it dismissed -- Police Services Act, R.S.O. 1990, c. P.15, ss. 64(7), (10), 76(1).

The Commissioner of the Ontario Provincial Police authorized a retired police superintendent to hold a disciplinary hearing into allegations of misconduct on the part of a police constable. The authorization stated that the superintendent was authorized pursuant to s. 76(1) of the Act to exercise any of the powers and perform any of the duties of the Commissioner described therein. The superintendent convicted the constable of six counts of discreditable conduct and proceeded, without objection from counsel for the Commissioner or counsel for the constable, to conduct a sentencing hearing. He demoted the constable to the rank, status and remuneration of third class constable for one year. The Commissioner brought an application for judicial review to quash that penalty on the basis that the power to make a finding of misconduct was delegated to the superintendent, but not the power to impose a penalty, which power remained exclusively with the Commissioner and was not within the Commissioner's power to dele gate.

Held, the application should be dismissed.

Nothing in s. 64 of the Act suggests that the person who conducts the hearing and determines its outcome should be a different person from the person who imposes sentence. An examination of s. 64(7) and (10) together demonstrates that the hearing and the sentencing are inseparable parts of the same process. Section 64(10) contemplates that the person who holds the hearing under s. 64(7) should be the very same person who determined whether misconduct was proved and should impose penalty in respect of the "matter" that was under s. 64(7). Section 64(10) provides that the chief at the conclusion of the hearing shall determine whether misconduct is proved on clear and convincing evidence and shall impose penalty as provided in s. 68. Section 64(10) requires the person who conducts the hearing under s. 64(7) to complete the matter and finish the job by imposing sentence. Nothing in s. 76(1) of the Act expressly excludes the power of a retired officer, doing his job under s. 64(7), to finish the job and complete the matter delegated to him as required by s. 64(10). There was no attempt in the authorization in this case to reserve the sentencing power to the Commissioner or to withhold it from the superintendent. The superintendent, under a purposive interpretation of the Act and his express authorization from the Commissioner, had the power and the duty to impose sentence.

The application should also be dismissed because the Commissioner asked her delegate to impose sentence and participated fully in the sentencing process, and now asked the court to say that the superintendent had no power to do the very thing the Commissioner asked him to do. While it is true that neither consent nor attornment can confer jurisdiction, a basic principle of our law estops a party who invites a tribunal to accept jurisdiction from saying, when he finds that the tribunal decides against him, that the tribunal lacked the very jurisdiction he invited it to exercise. It is only rarely that a court would exercise its jurisdiction to refuse judicial review where an adjudicator imposes a penalty or sentence without jurisdiction. This is particularly so if review is sought by the party upon whom the unauthorized penalty is imposed. But in this case the party who asked its own delegate to impose penalty now obviously considered the penalty to be inadequate and sought to recapture the sentencing power in order to impose a harsher penalty. Simple fairness prevented this result. This was one of those rare cases where the court, even if there was a lack of jurisdiction, should exercise varied its discretion to refuse judicial review.

APPLICATION to quash a penalty imposed on a police officer after a misconduct hearing.

Cases referred to Cornwall (Township) v. Ottawa & New York Railway Co. (1916), 1916 614 (SCC), 52 S.C.R. 466, 30 D.L.R. 664; Emerson v. Law Society of Upper Canada (1983), 1983 1776 (ON SC), 44 O.R. (2d) 729, 5 D.L.R. (4th) 294, 41 C.P.C. 7 (H.C.J.); Ex p. Pratt, Re Pratt (1884), 12 Q.B.D. 334, 53 L.J. Ch. 613, 50 L.T. 294, 32 W.R. 420 (C.A.); Imperial Tobacco v. Imperial Tobacco Sales, 1939 80 (ON CA), [1939] O.R. 627, [1939] 4 D.L.R. 99, 72 C.C.C. 321 (C.A.) (sub nom. Imperial Tobacco Co. v. McGregor); Law Society of Upper Canada v. French, 1974 24 (SCC), [1975] 2 S.C.R. 767, 49 D.L.R. (3d) 1, 3 N.R. 410 Statutes referred to Police Services Act, R.S.O. 1990, c. P.15 (am. 1997, c. 8), ss. 2 "chief of police", "Commissioner", 64, 68(1), 70(1), 76

Kim Twohig, for applicant. W. Michael Temple, Q.C., for respondent.

The judgment of the court was delivered by

ARCHIE CAMPBELL J.: --

The Application

[1] The Commissioner of the Ontario Provincial Police applies by way of judicial review to quash the penalty imposed upon Constable Wayne D. Silverman after a misconduct hearing under the Police Services Act, R.S.O. 1990, c. P.15 (as amended) before Superintendent (retired) Neil Sweeney.

The Position of the Parties

[2] The Commissioner says that the power to make a finding of misconduct was delegated to Superintendent Sweeney but not the power to impose penalty, which power remained exclusively with the Commissioner and was not within the Commissioner's power to delegate to a retired officer and not within Superintendent Sweeney's power to impose.

[3] Constable Silverman says that the Commissioner delegated to Superintendent Sweeney her full powers in relation to the misconduct charge including the power to impose penalty or sentence and alternatively that the Commissioner, having participated fully in the penalty hearing and having invited Superintendent Sweeney to do the very thing the Commissioner now says he had no jurisdiction to do, cannot invoke the discretionary jurisdiction of this court to quash the penalty.

Background of the Discipline Hearing

[4] The evidentiary record supplied to the court is somewhat deficient in the sense that it does not provide the full factual context of the proceedings. The record of the proceedings before Superintendent Sweeney, other than his reasons for conviction and sentence, are not before the court. For instance the precise charges against Constable Silverman are not part of the record. Neither are the exhibits or submissions from either side at the penalty hearing. The basic story, however, emerges as follows.

[5] Constable Silverman, a married man with children, was suspected of inappropriate behaviour with teenaged boys with whom he worked in various volunteer sports and activities under the aegis of a service club. Although off duty at the time of the conduct complained of, everyone was very conscious of his role as a police officer. His volunteer work was regarded as a way to break down barriers between the police and young people in the small community of Forest. The conduct in question involved, for the most part, slaps or flicks on the clothed buttocks and genitals of boys with whom he engaged in athletic activities, although there were a few allegations of other forms of inappropriate touching and inappropriate conversations about sexual matters.

[6] There was apparently a criminal charge against Constable Silverman which resulted in his acquittal, followed by the internal police disciplinary proceedings which are the subject matter of this application.

Discipline Hearing and Findings

[7] At the discipline hearing Inspector Susan Dunn appeared as prosecutor on behalf of the Commission and the Force and Ms. Heather Hutchison appeared for Constable Silverman. Superintendent Sweeney after hearing at least 17 witnesses delivered a 20-page judgment with a detailed analysis of the evidence and the credibility of the witnesses. He convicted Constable Silverman of six counts of discreditable conduct and concluded the reasons for judgment as follows:

Defence counsel asked how Silverman could have known that his conduct was unwelcome. As an ordinary citizen he wouldn't have to give it a thought. As a police office he has a duty and responsibility to think about his actions before he acts. That is what he has been trained to do and that is what he failed to do. Even if the training didn't send up a flare that his actions were questionable the application of common sense should have been sufficient. To use his own words, "I wanted to break down the barriers between the youth of the community and the police."

These are not isolated incidents. There is a definite pattern to the behaviour of Constable Silverman. That behaviour is inappropriate for a police officer whether on or off duty.

I am satisfied beyond the burden on clear and convincing that the evidence supports each of the allegations against Constable Silverman and there will be a conviction in each matter.

Penalty Hearing and Findings

[8] Following the conviction, Superintendent Sweeney conducted a sentencing hearing. Inspector Dunn, again, appeared for the prosecution on behalf of the Commissioner and Constable Silverman was represented by Mr. Michael Temple. Although the record, again, is incomplete, it is clear that both sides participated fully in the sentencing process and there was no submission by either side that Superintendent Sweeney lacked jurisdiction to do what he was asked to do by both sides:

I have been provided with, and closely reviewed, exhibits in support of the prosecution submissions that dismissal is called for in this matter. The defense accepted proper service of the required notice under the Act with respect to possible dismissal or demotion upon a finding against Constable Silverman.

I have also given the defense exhibits and submissions on penalty the same thorough consideration.

[9] After a thorough and careful analysis of the principles of sentencing in matters of this nature as they applied to the facts as found by him, Superintendent Sweeney concluded as follows:

Dismissal is reserved for worst case scenarios. Notwithstanding the seriousness of these offences and my concern with respect to rehabilitation I am not satisfied that Constable Silverman has exhausted his usefulness to the community and the service. I reiterate however that the request of the prosecutor is not unreasonable under the circumstances. I caution you Constable Silverman that I believe that you would be hard pressed to avoid dismissal should you appear before a tribunal facing similar allegations.

Constable Silverman you have been found guilty of six allegations of discreditable conduct. It is the determination of this tribunal that on each of the six allegations the penalty will be reduction in rank status and remuneration to third class constable for a period of one year. Your return to your present rank will be in accordance with the promotional procedures of the Ontario Provincial Police Service. The penalties are to run concurrent.

[10] The estimated pay loss to Constable Silverman as a result of the penalty is $19,500.

Superintendent Sweeney's Delegated Authority

[11] Superintendent Sweeney's delegated authority is set out in an authorization signed by Commissioner Boniface dated June 8, 1998:

AUTHORIZATION -- FORCE ADJUDICATOR

Pursuant to Section 76, subsection 1 of the Police Services Act, I hearby authorize Superintendent (Retired) NEIL SWEENEY, to exercise any of the powers and perform any of the duties of the Commissioner described therein, for a hearing under subsection 64 (7) of P/C. W.D. Silverman.

Statutory Provisions

[12] The relevant provisions of the Police Services Act, as amended, are these:

2. In this Act,

"chief of police" means a municipal chief of police or the Commissioner of the Ontario Provincial Police and includes an acting chief of police;

"Commissioner" means the Commissioner of the Ontario Provincial Police;

64(1) Subject to subsections 59(3), (4) and (5), 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.

(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.

(10) At the conclusion of the hearing, if misconduct or unsatisfactory work performance is proved on clear and convincing evidence, the chief of police shall take any action described in section 68.

(15) If an informal resolution of the matter is attempted but not achieved under subsection (11), the following rules apply:

1. The chief of police shall provide the police officer with reasonable information concerning the matter and shall give him or her an opportunity to reply, orally or in writing.

2. Subject to paragraph 3, the chief of police may impose on the police officer the penalty described in clause 68(1)(e) and may take any other action described in subsection 68(5) and may cause an entry concerning the matter, the penalty imposed or action taken and the police officer's reply to be made in his or her employment record.

3. If the police officer refuses to accept the penalty imposed or action taken, the chief of police shall not impose a penalty or take any other action or cause any entry to be made in the police officer's employment record, but shall hold a hearing under subsection (7).

68(1) The chief of police may, under subsection 64(10),

(a) dismiss the police officer from the police force;

(b) direct that the police officer be dismissed in seven days unless he or she resigns before that time;

(c) demote the police officer, specifying the manner and period of the demotion;

(d) suspend the police officer without pay for a period not exceeding 30 days or 240 hours, as the case may be;

(e) direct that the police officer forfeit not more than three days or 24 hours pay, as the case may be; or

(f) direct that the police officer forfeit not more than 20 days or 160 hours off, as the case may be.

76(1) A chief of police may authorize a police officer or a former police officer of the rank of inspector or higher to conduct a hearing under subsection 64(7) or to act under subsection 64(11) [informal resolution] or (15) [disposition without a hearing if informal resolution fails].

(2) A chief of police may authorize any member of any police force to exercise a power or perform a duty of the chief of police under this Part, other than those described in subsection (1).

Analysis

[13] The applicant contends:

1. that s. 64(10) reserves exclusively to the Commissioner the power to impose penalty in these circumstances;

2. that s. 76(1) does not authorize the Commissioner to delegate to a retired officer to impose a penalty under s. 68 because "otherwise, the authority to impose a penalty would have been included in subsection 64(7), as it is in subsection 64(15)";

3. that the authority to delegate the imposition of a penalty must flow from s. 76(2) which makes no reference to "a former police officer" as does s. 76(1).

[14] The respondent contends that the power to impose sentence under s. 64(10) is an integral part of the power to conduct a hearing under s. 64(7) and that there is no express prohibition against the delegation of the sentencing power to the retired police officer who conducts the hearing as an adjudicator.

[15] A purposive reading of the statute compels the latter conclusion. Nothing in s. 64 suggests that the person who conducts the hearing and determines its outcome should be a different person from the person who imposes sentence. An examination of s. 64(7) and s. 64(10) together demonstrates that the hearing and the sentencing are inseparable parts of the same process. Section 64(10) contemplates that the person who holds the hearing under s. 64(7) should be the very same person who determined whether misconduct is proved and should impose penalty in respect of the "matter" that was under s. 64(7). Section 64(10) provides that the chief at the conclusion of the hearing shall determine whether misconduct is proved on clear and convincing evidence and shall impose penalty as provided in s. 68. Put simply, s. 64(10) requires the person who conducts the hearing under s. 64(7) to complete the matter and finish the job by imposing sentence. The reason is obvious. The person who heard and saw the witnesses and weighed the evidence is ordinarily the person best suited to impose the penalty. This is generally so in both the criminal process and the administrative process.

[16] There may be situations where the legislature is of the view that the public interest requires the bifurcation of the sentencing process from the hearing and determination process: see, for instance, Law Society of Upper Canada v. French, 1974 24 (SCC), [1975] 2 S.C.R. 767, 49 D.L.R. (3d) 1; and Emerson v. Law Society of Upper Canada (1983), 1983 1776 (ON SC), 44 O.R. (2d) 729, 5 D.L.R. (4th) 294 (H.C.J.) (Henry J.). It was open to the legislature to do so here and to make it explicitly clear that the person who conducts the hearing and determines its outcome cannot, if they are a retired police officer as opposed to a serving officer, also impose the penalty. The legislature did not do so. Nothing in s. 76(1) expressly excludes the power of a retired officer, doing his job under s. 64(7), to finish the job and complete the matter delegated to him as required by s. 64(10).

[17] Although the applicant appears to rely on the difference between the pre-1997 statute and the statute as currently amended, there is no reason here to refer to the previous statute. The subtleties of statutory interpretation relied upon by the applicant, and particularly the application of the doctrine expressio unius exclusio alterius to the interstices of the general delegation and provisions of the statute and to the informal resolution provisions that s. 64(15) (which have no application here) do not provide the clarity required to displace the common sense purposive reading of s. 64 that the person who holds the hearing and determines its outcome should also impose the penalty.

[18] Nothing in the Commissioner's authorization to Superintendent Sweeney suggests otherwise. The authorization on its face delegates to him all of the Commissioner's powers and duties in relation to the discipline hearing under s. 64(7) which of course include the duty imposed by s. 64(10) that the person who conducts a hearing under s. 64(7) shall determine the outcome of the hearing and shall impose penalty. There was certainly no attempt in the authorization to reserve the sentencing power to the Commissioner or to withhold it from Superintendent Sweeney.

[19] It flows from the above that Superintendent Sweeney, under a purposive interpretation of the statute and his express authorization from the Commissioner, had the power and the duty to impose sentence.

[20] The conclusion, that Superintendent Sweeney under a purposive interpretation of the statute and his express authorization had the power and the duty to impose sentence, is fortified by the conduct of the parties. The Commissioner and her prosecutor, Inspector Dunn, together with Superintendent Sweeney and also Mr. Temple as counsel to the O.P.P. Association, are all deeply familiar with the regular application of the statute in accordance with its commonly understood intent and purpose. The fact that no one on either side challenged the jurisdiction of Superintendent Sweeney to do that which they asked him to do suggests that the interpretation adopted above is most consistent with a purposive reading of the statute as understood by all those in the police community on both sides, whose job it is on a daily basis to make the statute work.

[21] For these reasons alone the application should be dismissed.

Discretion to Refuse Judicial Review

[22] There is another reason to dismiss the application.

[23] The court was told for the first time, during the course of argument, that the Commissioner has launched an appeal to the Ontario Civil Commission on Police Services ("O.C.C.P.S.") in respect of the sentencing proceedings before Superintendent Sweeney. This may raise the question, whether there is an alternative form of relief available to the Commissioner under s. 70(1) by way of appeal to the O.C.C.P.S. However the underlying problem here is not the possible availability of alternative relief.

[24] The underlying problem here is that the Commissioner asked her delegate to impose sentence and participated fully in the sentencing process, and caused Constable Silverman to participate fully in the sentencing process, and now asks the court to say that Superintendent Sweeney had no power to do the very thing the Commissioner asked him to do. It is true that neither consent nor attornment can confer jurisdiction or breathe life into a nullity. As Mr. Justice Duff said in Cornwall (Township) v. Ottawa & New York Railway Co. (1916), 1916 614 (SCC), 52 S.C.R. 466 at p. 497, 30 D.L.R. 664:

Consent can give jurisdiction when it consists only in waiver of a condition which the law permits to be waived, otherwise it cannot. Where want of jurisdiction touches the subject matter of the controversy or where the proceeding is of the kind which by law or custom has been appropriated to another tribunal then mere consent of the parties is inoperative.

[25] This case however triggers a complementary principle. A basic principle of our law estops a party who invites a tribunal to accept jurisdiction from saying, when he finds that the tribunal decides against him, that the tribunal lacked the very jurisdiction he invited it to exercise: Ex p. Pratt, Re Pratt (1884), 12 Q.B.D. 334 at p. 341, 53 L.J. Ch. 613, per Bowen L.J., quoted by Gliders J.A. in Imperial Tobacco v. Imperial Tobacco Sales, 1939 80 (ON CA), [1939] O.R. 627 at p. 644, 72 C.C.C. 321 at p. 346.

[26] It is only rarely that a court would exercise its jurisdiction to refuse judicial review where an adjudicator imposes a penalty or sentence without jurisdiction. This is particularly so if review is sought by the party upon whom the unauthorized penalty is imposed. But in this case the party who asked its own delegate to impose penalty now obviously considers the penalty to be inadequate and seeks to recapture the sentencing power in order to impose a harsher penalty.

[27] Simple fairness prevents this result. This is one of those rare cases where the court, even if there were a lack of jurisdiction, should exercise its discretion to refuse judicial review.

Procedural Matters

[28] This is a convenient point to note that the rules of court make no provision for a reply factum. It is not ordinarily helpful for the court or for responding counsel to receive during the actual hearing of an application a reply factum and supplementary brief of authorities. This practice is to be discouraged. It might also be noted that it is helpful in cases such as this for the court to be provided with an up-to- date consolidation of the statute in question.

Conclusion

[29] For these reasons, the application is dismissed with costs fixed at $25,000.

Application dismissed.