COURT FILE NO.: 83/02

DATE: 20030922

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISIONAL COURT)

RE: DONALD A. WILLIAMS (Applicant) v. ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES and CHIEF KEVIN McALPINE, DURHAM REGIONAL POLICE SERVICE (Respondents)

BEFORE: DUNNET, MEEHAN AND COO JJ.

COUNSEL: Marshall A. Swadron, for the Applicant Dennis W. Brown, for the Respondent Ontario Civilian Commission on Police Services Steven M. Boorne, for the Respondents Chief Kevin McAlpine and Durham Regional Police Service

HEARD: September 12, 2003

E N D O R S E M E N T

BY THE COURT:

[1] While the delay in this matter is significant, in view of our findings, we do not consider the delay so unreasonable as to preclude our hearing the application.

[2] In his reasons, the Chief’s designate made a finding that the officer acted in good faith in misrepresenting the facts about the results of the polygraph to the complainant. The role of the Chief under ss.64(6) and (7) of the Police Services Act is not to make findings of fact. Findings of fact or credibility should be determined at the hearing stage and not at the preliminary stage of resolving whether to hold a hearing into professional misconduct. See Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services) (2002), 61 O.R. (3d) 649 (C.A.) at paras.60, 61.

[3] The Chief’s designate also made a finding that the complaint had not disclosed “the existence of proof to a degree or sufficiency that might lead to a finding of police officer misconduct on clear and convincing evidence”. While the complaint must not be frivolous or vexatious, the applicable test is whether there is a reasonable basis to the complaint or an “air of reality” to the evidence. See Canadian Civil Liberties Ass’n. v. Ontario (Civilian Commission on Police Services), supra at para.67.

[4] The effect of the Chief’s decision is a determination on the merits or strength of the complaint. On its review, the Commission was satisfied that the Chief’s decision was appropriate, thereby accepting the finding of credibility and the determination made on the strength of the complaint. In our view, the Commission’s decision is patently unreasonable.

[5] Accordingly, the application is allowed and the decision of the Commission is quashed. The matter is remitted to the Chief himself or his designate, other than Brian Fazackerley, to make a determination under ss. 64(6) and (7) of the Act in accordance with the test set forth above.

[6] Costs to the applicant fixed in the amount of $3000 and payable by the respondent Ontario Civilian Commission on Police Services.

RELEASED: ____________________________________ DUNNET J.

MEEHAN J.

COO J.