COURT FILE NO.: 493/04

DATE: 20051130

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

lane, then and epstein jj.

B E T W E E N:

MICHAEL MCCORMACK

Applicant

- and -

THE TORONTO POLICE SERVICE and JULIAN FANTINO CHIEF OF POLICE

Respondents

Peter Brauti, for the Applicant

George H. Cowley, for the Respondents

HEARD: October 4, 2005

THEN J.:

Introduction

[1] On April 24, 2004, the Applicant, a Police Constable with the Toronto Police Service, was charged under the Police Services Act, R.S.O. 1990, c. P. 15 (hereinafter P.S.A.) with one count of Corrupt Practice, two counts of Discreditable Conduct and one count of Insubordination.

[2] The Applicant seeks judicial review of the designation by Chief Julian Fantino of Superintendent Neale Tweedy of the Toronto Police Service (hereinafter T.P.S.) as the hearing officer rather than an outside officer. The Applicant also seeks judicial review of the failure by Superintendent Tweedy to recuse himself on account of an alleged reasonable apprehension of bias based both on “institutional” factors and on two instances of reasonable apprehension of “personal” bias.

[3] For the reasons that follow, the application for judicial review of the refusal of Superintendent Tweedy to recuse himself on the basis of a reasonable apprehension of “personal” bias is granted. As I have held that Superintendent Tweedy erred in not recusing himself on the basis of a reasonable apprehension of “personal” bias, it is neither necessary nor appropriate to determine whether he should also have recused himself due to “institutional” factors or whether Chief Fantino erred in designating Superintendent Tweedy as the hearing officer.

Facts

[4] On September 4, 2003, Chief Fantino authorized Superintendent Tweedy, a member of the T.P.S., to exercise the powers and to perform the duties of the Chief of Police as a hearing officer under s. 64(7) of the P.S.A. in cases constituting misconduct under s. 74 of the P.S.A. Chief Fantino exercised his discretion pursuant to s. 76(1) which states:

76.(1) A chief of police may authorize a police officer of the rank of inspector or higher or a judge or former judge who has retired from office to conduct a hearing under subsection 64(7) or to act under subsection 64(11) or (15).

[5] On May 10, 2004, counsel for the Applicant contacted Acting Staff Superintendent Rick Gauthier, the head of Professional Standards, requesting that an outside hearing officer deal with the Applicant’s case.

[6] In his letter, Applicant’s counsel requested an outside hearing officer so as to avoid a public perception of bias on the basis that the Applicant is a director of the Toronto Police Association (hereinafter T.P.A.) and because he is the son of the former Chief of Police for whom the hearing officer would likely have worked. In light of the reasons counsel had specifically advanced, he indicated that further reasons were unnecessary. However, counsel was prepared to elaborate on further reasons if Acting Staff Superintendent Gauthier was of a different view.

[7] The letter was referred to Chief Fantino. On May 14, 2004, Superintendent Cotgreave replied on behalf of Chief Fantino stating that the Chief did not agree with counsel’s position concerning perceived bias, that the Chief would not authorize anyone other than an officer within the force to conduct the hearing and that further correspondence would be unnecessary.

[8] On September 1, 2004, the hearing commenced before Superintendent Tweedy, and counsel for the Applicant moved before the hearing officer that he recuse himself on the ground of a reasonable apprehension of bias based on “institutional” factors.

[9] The institutional factors said to raise a reasonable apprehension of bias and which were drawn from the affidavit of the Applicant (upon which no cross-examination took place) were placed before Superintendent Tweedy and may be summarized as follows:

a) The Hearing Officer worked for the Applicant’s father in the T.P.S.;

b) The Hearing Officer’s father and the Applicant’s father worked together and had a professional relationship in the T.P.S.;

c) All other T.P.S. Hearing Officers have worked for the Applicant’s father;

d) The Hearing Officer will potentially have to make adverse findings of credibility against his superiors including Gauthier and Fantino;

e) The Hearing Officer will potentially have to make adverse findings of credibility against the Chair of the Toronto Police Services Board who makes important decisions that can dramatically impact on the Hearing Officer’s employer;

f) The Applicant is a Director of the T.P.A. and has aspirations to become President of the T.P.A.;

g) Acting Staff Superintendent Gauthier banned the Applicant from all T.P.S. property at a critical time in his bid to become President of the T.P.S.;

h) The Applicant alleged that the Hearing Officer’s superiors have been involved in “union busting” tactics and part of a “selective prosecution scheme”.

[10] The prosecutor submitted that none of these factors either cumulatively or individually raised a reasonable apprehension of bias.

[11] On September 13, 2004, the Hearing Officer gave comprehensive reasons for dismissing the application requesting that he recuse himself on the basis of these “institutional” factors.

[12] On February 8, 2005, the Applicant sought to reopen the initial motion for recusal based on a reasonable apprehension of personal bias. This was sought on the basis that the hearing officer would be required to make credibility findings with respect to Police Constable Correa, a key prosecution witness, with whom he had a close working relationship and about whose character the Superintendent had expressed his opinion during “positive” evaluations. The prosecution supported the reopening of the reasonable apprehension of bias motion without expressing an opinion as to the merits of the motion. Superintendent Tweedy refused to re-open the initial reasonable apprehension of bias motion primarily on the basis that the original bias motion dealt with “institutional” factors whereas the present motion dealt with a reasonable apprehension of “personal” bias.

[13] The parties have filed an agreed Statement of Facts indicating that while the Applicant’s own charges were pending before Superintendent Tweedy as Hearing Officer, the Applicant was subpoenaed as a central witness in the prosecution of Police Constable Stone in which Superintendent Tweedy is also the Hearing Officer. This prosecution involved the Applicant’s alleged role in providing hockey tickets to P.C. Stone. The prosecution alleged that the Applicant gave the tickets to P.C. Stone on behalf of a motorist, who is a friend of the Applicant, for favourable treatment given by P.C. Stone to the motorist. The Applicant contends that the tickets were given merely because of his own friendship with P.C. Stone.

[14] Superintendent Tweedy allowed the Applicant to be cross-examined in the Stone matter over the objections of his counsel not only as to the Applicant’s involvement in the Stone matter, but also, with respect to the subject matter of the Applicant’s own charges still pending before Superintendent Tweedy. The Applicant’s counsel was also called as a witness and cross-examined during the Stone matter as to why the Applicant’s evidence had not been available at an earlier date. Both counsel for P.C. Stone and the prosecution in the Stone matter submitted to Superintendent Tweedy that the Applicant’s credibility was a key issue in the Stone matter.

[15] On July 26, 2005, counsel for the Applicant sought to have Superintendent Tweedy recuse himself as hearing officer with respect to the Applicant’s charges on the basis that as hearing officer in the Stone matter he would be required to assess the Applicant’s credibility not only with respect to the Stone matter prior to adjudicating on the Applicant’s own charges, but also on the subject matter relevant to his own charges. The prosecutor in the Applicant’s matter supported the request for a reconsideration.

[16] Superintendent Tweedy refused the request for a reconsideration of the initial reasonable apprehension of bias motion but indicated that on October 19, 2005, a decision would be made in the Stone matter and that if he found against the credibility of the Applicant, prudence would require him to recuse himself. The court has not been informed of Superintendent Tweedy’s decision in the Stone matter or of the action taken by Superintendent Tweedy, if any, with respect to continuing as the adjudicator on the Applicant’s charges as a result of that decision.

The Issues

[17] The issues raised by the Applicant may be stated as follows:

(a) What is the appropriate standard of review with respect to Chief Fantino’s decision to designate Superintendent Tweedy as the hearing officer and the refusal by Superintendent Tweedy to recuse himself?

(b) Is the decision of Chief Fantino to designate Superintendent Tweedy subject to judicial review either as lacking in procedural fairness or as raising a reasonable apprehension of bias?

(c) Does the refusal of Superintendent Tweedy to recuse himself either on the basis of “institutional” or “personal” factors raise a reasonable apprehension of bias?

Analysis

[18] It is sufficient for the disposition of this case to deal solely with the issue of whether there exists a reasonable apprehension of “personal” bias on the part of Superintendent Tweedy. As I stated earlier, Superintendent Tweedy erred in failing to recuse himself as hearing officer on the ground of a reasonable apprehension of personal bias. In my view, for reasons I will develop in more detail later, Superintendent Tweedy was in a position that made it difficult for him to fairly assess the central issue of the credibility of the Applicant with respect to the charges against the Applicant. This difficulty was caused first by the nature of his relationship with Police Constable Correa, a key prosecution witness against the Applicant. Secondly, as hearing officer in the unrelated matter of P.C. Stone, Superintendent Tweedy was in an untenable position to assess the credibility of the Applicant not only because the Applicant was called as a witness in the Stone matter, but more particularly because during the Stone matter Superintendent Tweedy permitted the Applicant to be cross-examined as to his own charges.

The Test

[19] In Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, the test for apprehension of bias which governs in Canadian courts was articulated by de Grandpré J. at p. 394 as follows:

The apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information…that test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly?’

[20] The same test applies to administrative bodies as it is the duty of administrative boards, and in particular those which are adjudicative in nature, to provide procedural fairness, an essential ingredient of which is that the board be free of a reasonable apprehension of bias. The most recent articulation of this concept is found in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) (1992), 1992 84 (SCC), 89 D.L.R. (4th) 289 (S.C.C.) where Cory J. stated the following at pp. 297-299:

Although the duty of fairness applies to all administrative bodies, the extent of that duty will depend upon the nature and the function of the particular tribunal: see Martineau v. Matsqui Institution (Disciplinary Board) (1979)….The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.

It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the Board should be such that there could be no reasonable apprehension of bias with regard to their decision. [Emphasis added.]

[21] In assessing the nature of the error that Superintendent Tweedy may have made in refusing to recuse himself on the ground of a reasonable apprehension of bias, I accept the principle articulated by this court in Toronto (Metropolitan Police Services Board v. Young, [^1] [1997] O.J. No. 1076 (Div. Ct.) at para. 17 that it is a “jurisdictional issue as to whether there exists a reasonable apprehension of bias on the part of the decision-maker. Any error in respect of this is therefore a reviewable error of law”. Consequently, the standard of review for this court is that of correctness. In my view this court has greater expertise than Superintendent Tweedy to determine whether a reasonable apprehension of bias exists on the part of the decision-maker which in turn impacts upon the jurisdiction of the Tribunal.

[22] It remains to be determined if Superintendent Tweedy was correct in refusing to recuse himself either by reason of: (1) his relationship with P.C. Correa who is a key prosecution witness against the Applicant; and/or (2) his involvement as hearing officer in the unrelated Stone matter, where he was required to assess the credibility of the Applicant with respect to the Stone charges and permitted the Applicant to be cross-examined as to the subject matter of his own charges.

[23] The refusal of Superintendent Tweedy on February 8, 2005 to reopen the reasonable apprehension of bias motion because of his association with P.C. Correa, with whom the Superintendent had a close working relationship and to whom the Superintendent gave positive evaluations with respect to work performance and character, is problematic. In my view, a reasonable person would have a genuine concern as to the ability of Superintendent Tweedy to judge, fairly and impartially, the credibility of the Applicant in light of what can reasonably be reviewed as a favourable pre-disposition toward P.C. Correa.

[24] Moreover, the Superintendent did not confront the issue of whether his relationship with P.C. Correa impacted on his ability to judge the credibility of the Applicant. Instead, he rested his dismissal of the Applicant’s motion to revisit the motion for reasonable apprehension of bias on the specious basis that the original motion raised “institutional” factors whereas the instant motion raised a “personal” factor.

[25] On the other hand, the record before this court does not contain the affidavit of P.C. Correa that was before Superintendent Tweedy or other specifics of the positive evaluations of P.C. Correa so as to enable this court to state with the requisite confidence that a reasonable person apprised of all the facts would find a reasonable apprehension of bias on the part of Superintendent Tweedy in assessing the credibility of the Applicant. Although the relationship between Superintendent Tweedy and P.C. Correa raises a significant concern, which at a minimum required the Superintendent to reopen the reasonable apprehension of bias motion, the threshold for apprehension of bias is high. On this record, which is unfortunately lacking in specificity, I would not be prepared to find a reasonable apprehension of bias solely on the basis of that relationship. (See: Authorson (Litigation Guardian of) v. Canada (Attorney General), [2002] O.J. No. 2050 (Div. Ct.) at para. 25).

[26] As for the Applicant’s request on July 26, 2005, that Superintendent Tweedy recuse himself as the hearing officer regarding the Applicant’s charges, I agree with counsel for the Applicant that Superintendent Tweedy lost jurisdiction to continue as the hearing officer into the Applicant’s charges. Jurisdiction was lost on account of a reasonable apprehension of bias stemming from the Applicant’s participation as a witness and the Superintendent’s participation and rulings as hearing officer in the Stone matter prior to the adjudication of the Applicant’s charges.

[27] As has been previously outlined, the Applicant was a key witness for the defence in the Stone matter, and it was common ground that the credibility of the Applicant would inevitably constitute the key issue. In these circumstances, no matter whether Superintendent Tweedy found the Applicant to be credible or not in matters pertaining to P.C. Stone’s charges, the ability of Superintendent Tweedy to fairly judge the credibility of the Applicant with respect to the Applicant’s own charges would be seriously compromised. If Superintendent Tweedy found against the credibility of the Applicant, the Superintendent’s ability to fairly assess the credibility of the Applicant with respect to his own charges would be untenable. In his dismissal of the recusal request, the Superintendent acknowledged that if he found against the Applicant he would have to recuse himself as a matter of prudence.

[28] The untenable position of Superintendent Tweedy was greatly exacerbated by his ruling in the Stone matter that the Applicant could be cross-examined on the subject matter of his own charges. Accordingly, the findings of credibility vis à vis the Applicant’s evidence which Superintendent Tweedy was inevitably required to make in the Stone matter would at least in part be based on evidence conscripted from the Applicant on issues pertinent to the Applicant’s charges. These were charges upon which the Superintendent had not yet adjudicated, but which as the hearing officer in the Applicant’s charges, he would be required to adjudicate.

[29] There is, however, an even more serious aspect to the Superintendent’s decision in the Stone matter to permit cross-examination of the Applicant on the Applicant’s charges which had a devastating impact on the procedural fairness to which the Applicant was entitled.

[30] Section 69(7) of the P.S.A. states:

(7) The police officer who is the subject of the hearing shall not be required to give evidence at the hearing. (My emphasis)

[31] In view of the provisions of s. 69(7) it will be evident that in ruling that the Applicant could be cross-examined as to his own charges in the Stone matter, Superintendent Tweedy effectively deprived the Applicant of his statutory right to remain silent and to not testify at the hearing of his own charges before Superintendent Tweedy. In these circumstances, it is impossible for the Applicant to obtain the procedural fairness which s. 69(7) of the P.S.A. codifies if Superintendent Tweedy remains as the hearing officer with respect to the Applicant’s charges. In my view, the ruling of Superintendent Tweedy, as the hearing officer in the Stone matter, permitting the Applicant to be cross-examined on his own charges, clearly raises a reasonable apprehension of bias on the part of the Superintendent in his role as the hearing officer with respect to the Applicant’s charges. In my view, a reasonable person apprised of all of the circumstances would properly apprehend that the Superintendent’s ability, fairly and impartially, to make a finding as to the Applicant’s credibility had been rendered untenable. Moreover, by permitting the cross-examination, the Superintendent has, in effect, deprived the Applicant of a statutory right to silence and thus deprived him of procedural fairness and natural justice.

[32] Although it is not strictly necessary to do so, both counsel have requested that the court determine whether Chief Fantino appropriately exercised his discretion under s. 76(1) of the P.S.A. in selecting an officer within the T.P.S. as a hearing officer in order to provide guidance to Chief Blair in the exercise of his discretion. Also, both counsel request a determination as to whether Superintendent Tweedy should have recused himself in light of the “institutional” factors that could potentially render any officer appointed from within the T.P.S. tainted with a reasonable apprehension of bias.

[33] While I have no doubt that in exercising his discretion under s. 76(1) of the P.S.A, it would be both wise and appropriate for Chief Blair to consider the “institutional” factors, I cannot see why it is either necessary or appropriate for this court to provide guidance to Chief Blair by reviewing the discretion exercised by Chief Fantino and the refusal of Superintendent Tweedy to recuse himself for “institutional” factors. Whatever the merit of the allegations of reasonable apprehension of bias in respect of either the exercise of discretion by Chief Fantino or the refusal to recuse on the part of the Superintendent, there is no evidence on this record that Chief Blair, unlike Chief Fantino, was involved in the investigation of this matter in any way, or in the laying of the charges against the Applicant, or in discussions with former Chair Heisey about evidence against the Applicant. Nor is there any evidence on this record that Chief Blair possesses any alleged oblique motive of selective prosecution or union busting. Moreover, with the departure of former Chief Fantino and former Chair Heisey, many of the “institutional” factors may be reconsidered in light of these facts. While it is open to counsel for the Applicant to make such representations to Chief Blair as he sees fit, it will be the responsibility of Chief Blair to assess the nature of the representations and to appoint a hearing officer who he believes can discharge his or her responsibilities in a fair and unbiased manner in all the circumstances.

[34] Accordingly, judicial review is granted, the decision of Superintendent Tweedy of July 26, 2005 refusing to recuse himself as the hearing officer is quashed. This court orders that Superintendent Tweedy is without jurisdiction to continue as hearing officer with respect to the Applicant’s charges, and the matter is remitted to Chief Blair to exercise his discretion under s. 76(1) of the P.S.A. to appoint another hearing officer as provided in s. 76(1).

[35] Neither side has sought costs and none are awarded.

Then J.

Lane J.

Epstein J.

Released:

COURT FILE NO.: 493/04

DATE: 20051130

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, THEN AND EPSTEIN JJ.

B E T W E E N:

MICHAEL MCCORMACK

Applicant

- and -

TORONTO POLICE SERVICES AND JULIAN FANTINO CHIEF OF POLICE

Respondent

REASONS FOR JUDGMENT

Then J.

Released: November 30, 2005

[^1]: Reversed on other grounds at C.A. [1998] O.J. No. 4736.