Court File and Parties

CITATION: Bernardon v. Windsor Police Service, 2019 ONSC 764

DIVISIONAL COURT FILE NO.: 17/17

DATE: 20190130

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

J. Henderson, Fregeau and Matheson JJ.

BETWEEN:

CONSTABLE CHRISTOPHER BERNARDON Applicant

– and –

WINDSOR POLICE SERVICE Respondent

COUNSEL: L. O’Hara, for the Applicant D. Amyot, for the Respondent, Windsor Police Service M. Peachey, for the Ontario Civilian Police Commission

HEARD at London: November 29, 2018

REASONS ON APPLICATION

Fregeau J.

Introduction

[1] This is an Application for judicial review of the June 14, 2017, Decision of the Ontario Civilian Police Commission (the “Commission”) made pursuant to s. 87(8)(a) of the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”).

[2] In the Decision, the Commission confirmed the October 31, 2014, decision of the Hearing Officer who found the Applicant guilty of discreditable conduct. The Commission further confirmed the penalty imposed by the Hearing Officer on January 27, 2015, namely demotion from First Class Constable to Second Class Constable for a period of nine months.

Background

[3] The Applicant is a police officer employed with the Windsor Police Service. On June 2, 2013, the Applicant and his partner were conducting a sexual assault investigation involving a 15 year old complainant. The Applicant and his partner attended the Sexual Assault Treatment Centre (the “SATC”) within the Windsor Regional Hospital to interview the complainant. The SATC is a segregated unit within the hospital that provides treatment exclusively to victims of sexual assault.

[4] Shortly after his arrival at the SATC, the Applicant entered an interview room and removed his kevlar vest and uniform shirt. The Applicant was wearing a T-shirt underneath his uniform shirt, which he did not remove. He was observed out of uniform in various areas inside the SATC. The Applicant assisted his partner in interviewing the complainant on video. The interview took place in the interview room where the Applicant had taken his vest and shirt off earlier.

[5] The Applicant left the SATC to call his Staff Sgt. and have a cigarette. He admitted at the hearing of the appeal that he left the SATC three times, getting fully dressed each time, and then again removing his vest and shirt when he returned to the SATC.

[6] A nurse who worked in the SATC, to whom the events of June 2^nd had been reported by two nurses who were on duty that day, made a complaint to the Windsor Police Service. The Applicant was served with a Notice of Hearing on October 4, 2013, alleging one count of discreditable conduct and one count of insubordination pursuant to the Code of Conduct established by General, O. Reg. 268/10 under the PSA.

[7] On October 30, 2014, the Applicant, represented by counsel (the “hearing counsel”), and the Prosecution agreed on a resolution of the charges. They agreed that the Applicant would plead guilty to the count of discreditable conduct and that the count of insubordination would be withdrawn. The parties further agreed on a joint submission as to a range of penalty, namely a demotion from First Class Constable to Second Class Constable for a period of 6 to 12 months. The facts in support of the guilty plea were also resolved in an Agreed Statement of Facts (the “ASF”).

[8] On October 31, 2014, pursuant to the joint submission, the Applicant’s guilty plea, and the ASF, the Hearing Officer found the Applicant guilty of one count of discreditable conduct. The count alleging insubordination was withdrawn.

[9] The matter was then adjourned to December 1, 2014, for submissions as to penalty and for hearing counsel to obtain a medical report to submit at the penalty hearing. The penalty hearing was subsequently adjourned to January 12, 2015.

[10] Between October 31, 2014, and January 12, 2015, the Applicant’s hearing counsel and the Prosecution refined the joint submission as to penalty and agreed on a joint submission as to penalty of nine months’ demotion.

[11] Prior to the January 12, 2015, penalty hearing, the Applicant had given his hearing counsel written instructions to file the defence medical report and an explanatory letter authored by the Applicant. However, those materials were not filed. The joint submission as to penalty was put forward at the hearing.

[12] On January 27, 2015, the Applicant received a penalty of demotion from First Class Constable to Second Class Constable for nine months in accordance with the joint submission.

[13] The Applicant appealed the Hearing Officer’s decision as to conviction and penalty to the Commission, alleging that his guilty plea was involuntary, equivocal, or uninformed, and therefore invalid, and further alleging ineffective assistance of hearing counsel.

[14] In its June 14, 2017, Decision (the “Decision”), the Commission dismissed the Applicant’s appeal and confirmed the January 27, 2015, decision of the Hearing Officer.

[15] The Applicant now applies for judicial review of the Commission’s June 14, 2017, Decision.

[16] At the hearing of this Application, the Applicant did not pursue his request that this court review the Commission’s Decision as to penalty. The Applicant also sought to supplement the record before this court by filing further affidavit evidence pursuant to s. 2(3) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”).

[17] Despite the able submissions of the Applicant’s counsel, for the reasons set out below, the Applicant’s supplemental affidavit evidence is found to be inadmissible and the Application is dismissed.

The Standard of Review

[18] The parties are in agreement that the applicable standard of review is reasonableness. In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47, the Supreme Court described the reasonableness standard as follows:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

The Issues

1. The Admissibility of Supplemental Affidavit Evidence; and,
2. The Ineffective Assistance of Hearing Counsel and the Validity of the Applicant’s Guilty Plea.

The Admissibility of Supplemental Affidavit Evidence on Judicial Review

[19] The Applicant sought to file affidavit evidence to supplement the record at the hearing of this Application. The Windsor Police Service took no position on the issue. The Commission opposed the filing of the affidavit evidence.

[20] In the affidavit, sworn by Karen Watson and dated November 21, 2018, the Applicant seeks to file before this Court, the Applicant’s counsel’s legal assistant deposes that the Applicant’s counsel requested that hearing counsel provide an affidavit for the appeal hearing before the Commission. The Applicant’s counsel requested that hearing counsel respond to the Applicant’s allegation that hearing counsel’s representation of the Applicant at the initial hearing was ineffective. The proposed supplemental affidavit was silent on what if any reply was received. We are asked to infer that counsel declined to provide an affidavit.

[21] The Applicant seeks to file the supplemental affidavit on judicial review to explain why there was no affidavit from the hearing counsel at the hearing of the appeal before the Commission.

[22] The Applicant submits that the Commission, at para. 51 of the Decision, found that the usual protocol regarding a claim for ineffectiveness of trial counsel, namely the filing of an affidavit of trial counsel, was not followed.

[23] The Applicant further submits that the Commission concluded that the Applicant had not met his burden of establishing ineffective assistance of counsel as a result of that factual finding and in the absence of any evidence. The Applicant submits that supplemental evidence is admissible on judicial review as the Commission, in the absence of any evidence, faulted the Applicant for failure to follow the protocol.

[24] The Commission submits that supplemental evidence is generally prohibited on judicial review and that the proposed supplemental evidence does not fall within any of the recognized exceptions to the general rule, which has been strictly applied by this court.

[25] The Commission submits that the Commission’s reference to the usual protocol not being followed was simply a comment on the lack of such an affidavit, which was an uncontested fact upon which no further factual inference was made. The Commission submits that the Commission referenced the protocol, noted that the provisions of the protocol are “not cast in stone,” considered the totality of the evidence on the issue, and concluded that the Applicant had not provided sufficient evidence to establish ineffective assistance of counsel.

[26] The Commission submits that evidence to supplement the record on a judicial review application is not admissible in these circumstances.

[27] Generally, the evidence before the court on judicial review is restricted to the record that was before the administrative decision maker. In exceptional cases, evidence may be admitted to demonstrate a breach of s. 2(3) of the JRPA, which states:

Where the findings of fact of a tribunal made in the exercise of a statutory power of decision are required by any statute or law to be based exclusively on evidence admissible before it and on facts of which it may take notice and there is no such evidence and there are no such facts to support findings of fact made by the tribunal in making a decision in the exercise of such power, the court may set aside the decision on an application for judicial review.

[28] The leading Ontario case on the admissibility of supplemental evidence on judicial review is Re Keeprite Workers’ Independent Union et al. v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.). In Keeprite, at p. 517, the Court of Appeal held that affidavit evidence is admissible to show that s. 2(3) of the JRPA is applicable – that there is an absence of evidence to support a finding of fact. The court further held that a finding of fact on an essential point, made without any evidentiary basis, is an unreasonable finding and affidavit evidence is admissible to show such an error.

[29] In 142445 Ontario Limited (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636 (2009), 251 O.A.C. 62 (Ont. Div. Ct.), at para. 14, this court confirmed that Keeprite remains the leading case on the issue of the admissibility of affidavit evidence to supplement the record on judicial review and that it is binding on this court.

[30] In 142445 Ontario Ltd., Swinton J., at para. 37, distilled the Keeprite test into a two-step analysis:

1. Does the supplemental affidavit evidence establish that there was no evidence to support a finding of fact; and
2. Does the evidence relate to a fact that was essential to the decision.

[31] We are not persuaded that the Applicant has met the test for admitting evidence to supplement the record on judicial review.

[32] On his appeal, the Applicant argued that the ineffectiveness of his hearing counsel resulted in a miscarriage of justice. In its Decision, at para. 51, the Commission noted that “the usual protocol when an appellate body is asked to consider the effectiveness of trial counsel is to obtain an affidavit from that counsel.” The Commission went on to find that the protocol had not been followed in the appeal before them such that there was no evidence from the hearing counsel for them to consider.

[33] We read this to be nothing more than a comment as to an uncontested fact. We reject the Applicant’s submission that the Commission somehow faulted the Applicant for failure to follow the protocol.

[34] The Commission went on to note that “the provisions of the protocol are not cast in stone” and to identify that “the critical issue is to ensure that sufficient evidence is placed before the court in respect of an ineffective assistance claim so as to permit the proper adjudication of the claim.”

[35] At para. 52, the Commission expressly noted that “in some cases an affidavit from trial counsel will not be possible and other evidence may be considered as required.” The Commission, at paras. 53-62, explained why they concluded that there was insufficient evidence to find that the Applicant’s representation by hearing counsel was ineffective. The Commission’s earlier comment on the failure to follow the protocol was not material to this finding.

[36] We find that the Applicant has failed to meet the test for filing additional affidavit evidence to supplement the record on judicial review. The November 21, 2018, affidavit of Karen Watson is not admissible on this judicial review application.

Ineffective Assistance of Hearing Counsel and the Validity of the Applicant’s Guilty Plea

[37] The Applicant’s primary submission on the appeal before the Commission was that his October 31, 2014, plea of guilty was not voluntary or unequivocal, was made even though he had a defence to the charges, and that his hearing counsel’s ineffective representation resulted in a miscarriage of justice.

[38] The basis for the Applicant’s position was that his hearing counsel chose not to file the medical report and his explanatory letter at the January 12, 2015, penalty hearing despite his instructions that she do so. The essence of the Applicant’s argument, on appeal and on this judicial review application, was that the contents of these documents would have caused the Hearing Officer at the penalty hearing to recognize that the Applicant’s October 31, 2014, guilty plea was uninformed and equivocal, resulting in the Hearing Officer striking the Applicant’s earlier guilty plea. These circumstances necessitated the Applicant, on appeal, arguing both ineffectiveness of hearing counsel and the invalidity of his guilty plea.

[39] At the hearing of the appeal, the Commission allowed the Applicant and the Respondent to file fresh evidence. The Applicant’s fresh evidence consisted of his affidavit and affidavits from two of his treating physicians. The Applicant’s affidavit, among other things, set out his version of what occurred on June 2, 2013. The Respondent’s fresh evidence consisted of an affidavit of Inspector J. Farrand, Windsor Police Service, Professional Standards Branch. This affidavit contained various documents from hearing counsel’s file that the Applicant did not include in his affidavit.

[40] The Applicant’s preliminary submission before this court was that the fresh evidence filed by him on appeal should have been accepted and weighed by the Commission as “uncontradicted” because the Respondent chose not to cross examine him or his physicians on their affidavits. The Applicant submits that this evidence should have been accepted in its entirety by the Commission and that it was unreasonable for the Commission to question or reject this evidence.

[41] The thrust of the Applicant’s fresh evidence on appeal was that he has suffered from anxiety, accompanied by major depressive episodes since 2008, and that he was under the care of his family physician, a psychologist, and a psychiatrist at the time of the incident on June 2, 2013. The Applicant’s affidavit further set out his version of what occurred on June 2, 2013 – that he suffered a panic attack and began to experience “an overwhelming feeling of stress and anxiety.” The Applicant further acknowledged telling a nurse that he was feeling “hot and sweaty.”

[42] We reject the Applicant’s submission that this evidence should have been accepted by the Commission in its entirety and without question. First, a trier of fact is not required to accept any evidence tendered before it: R. v. Li, 2012 ONCA 291, 110 O.R. (3d) 321, at para. 13. Second, the appeal before the Commission was an appeal on the record requiring the Commission to take into account all facts and documents found in the record together with “new or additional evidence as it considers just”: PSA, s. 87(5).

[43] The Commission was therefore entitled to weigh the Applicant’s fresh evidence against the entirety of the record and the Respondent’s fresh evidence. The Commission did so at paras. 25, 26, and 27 of the Decision. Having done so, the Commission specifically noted the following:

1. The Applicant failed to mention in his affidavit that when he left the SATC on at least three occasions on June 2, 2013, he put his vest and uniform shirt back on and removed them each time he returned;
2. That the Applicant did not report his panic attack to his Staff Sergeant when speaking with him while in attendance at the SATC;
3. That the Applicant immediately returned to normal duties upon leaving the SATC that day and assisted in the arrest of one of the suspects in the sexual assault investigation;
4. That the Applicant’s written response to the complaint about his conduct on June 2, 2013, did not include a claim that he suffered a panic attack. In that response, the Applicant asserted that he had been feeling the side effects of medication, that he removed his shirt and vest because the SATC was hot and he was sweaty and that he simply wanted to cool down to allow him to fulfill his responsibilities.

[44] The Commission also considered and weighed the medical evidence contained in the record, including in the fresh evidence filed by the Applicant.

[45] At para. 59 of the Decision, the Commission rejected the applicant’s submission that this medical evidence established that he suffered from a debilitating medical issue when in attendance at the SATC on June 2, 2013. The Commission noted that any information the physicians had about June 2, 2013, came from the Applicant and that their reports did not include many of the facts that the Commission found militated against a finding that the Applicant had suffered a panic attack on that date. The Commission further observed that none of the physicians concluded that the Applicant had in fact suffered a panic attack on June 2, 2013.

[46] The Commission was required to review, evaluate, and weigh the entire record, including the fresh evidence admitted on the appeal before them. Having done so, the Commission chose not to accept as “uncontradicted” the facts as set out in the Applicant’s evidence, and they chose not to come to the same conclusion as the Applicant. The Commission’s reasons for doing so were logical and intelligible and this aspect of the Decision falls within the range of possible, acceptable conclusions defensible in respect of the facts and the law.

[47] The Applicant submits that the Commission relied on irrelevant evidence and engaged in speculation in the absence of evidence in concluding that he had not met his burden of establishing his hearing counsel’s assistance was ineffective and that his guilty plea was invalid.

[48] At the hearing of the appeal before the Commission, the Applicant established that he had instructed his hearing counsel to file the medical report and his letter at the penalty hearing. Despite these instructions, hearing counsel did not do so. The Applicant submits that, if these documents had been filed at the penalty hearing, the Hearing Officer could have recognized that his earlier guilty plea was equivocal which could have resulted in his guilty plea being struck.

[49] The relevant portion of the medical report, dated November 30, 2014, reads as follows:

Regarding the question of whether or not his symptoms could have been the result of a panic attack, I would state that based on his history over the past several years, and given the circumstances and location on the day in question, it is very possible and quite likely that the circumstances could lead to an exacerbation of his symptoms.

[50] The Applicant submits that the Commission, at para. 43, unreasonably speculated on hearing counsel’s reasons for not filing these documents at the penalty hearing. At para. 43, the Decision reads:

For reasons that are not clear, despite instructions from the appellant, this letter was not presented to the Hearing Officer. Nor did Ms. A. present a letter the appellant prepared intending that it be given to the Hearing Officer, providing his version of what happened the afternoon of the incident … At the risk of speculating, it may have been that this material was not tendered because of the joint submission that was going to be presented to the Hearing Officer. Ms. A. had earlier expressed her concerns to the appellant that the nature of the medical evidence might lead the respondent to take the position that he was unfit to serve.

[51] The Applicant submits that there was no evidence before the Commission explaining hearing counsel’s failure to submit his letter and the medical report to the Hearing Officer at the penalty hearing. The Applicant contends that the Commission improperly and unreasonably speculated that there may have been two reasons why they were not submitted by hearing counsel despite being instructed to do so.

[52] However, the Applicant submits that such speculation was equally consistent with his suggestion that hearing counsel’s decision not to submit this material at the penalty hearing was essentially “suppression” of this material in an attempt to conceal the fact that his earlier guilty plea was equivocal.

[53] The Applicant submits that hearing counsel did not have discretion to not file this material in the face of clear instructions from him to do so. The Applicant contends that the Commission’s conclusion, at para. 63 of the Decision, that hearing counsel’s “decision not to present evidence as to the appellant’s mental health when there was what we find to have been a reasonable joint decision as to penalty was one that cannot be faulted,” was unreasonable.

[54] We reject this submission. On October 30, 2014, the parties arrived at a resolution pursuant to which the Applicant agreed to plead guilty to one count of discreditable conduct and the count of insubordination was to be withdrawn. Further, the Applicant agreed to a joint submission as to a range of penalty for a demotion from First Class Constable to Second Class Constable for 6 to 12 months. The Prosecution further agreed not to pursue the Applicant’s dismissal. Finally, the parties entered into an ASF at this time.

[55] The Applicant’s allegation that he suffered from a panic attack while at the SATC on June 2, 2013, was a disputed fact that was not supported by the evidence and that the prosecutor would not allow into the ASF.

[56] As only a range of penalty had been agreed on, hearing counsel adjourned the penalty hearing in order to obtain a medical report in an attempt to minimize the penalty ultimately imposed on the Applicant. However, hearing counsel and the prosecutor subsequently arrived at a joint submission as to penalty, namely nine months demotion. At this point, the medical report that hearing counsel chose not to file on January 12, 2015, became irrelevant because there was a joint submission as to penalty.

[57] At para. 43, the Commission acknowledged that the physician’s letter and the Applicant’s letter were not filed for “reasons that are not clear” and “despite instructions from the appellant.” In our opinion, regardless of the Commission’s unfortunate use of the phrase “at the risk of speculating,” what the Commission did was reasonably infer that hearing counsel did not file the physician’s report because of the joint submission as to penalty that was going to be presented to the Hearing Officer and because of the sensitive and possibly damaging contents of the medical report. It was essentially irrelevant and potentially harmful to the Applicant’s interests.

[58] We find that what the Commission described as “speculation” was in fact a common sense conclusion based on the entire record before it. In our opinion the Commission’s finding, at para. 63 of the Decision, was reasonable. The Commission’s finding that hearing counsel was not at fault for her tactical choice to not present evidence as to the Applicant’s mental health at the penalty hearing in light of a joint submission as to penalty is entitled to deference.

[59] The Applicant submits that the Commission correctly outlined the three stage test to be applied when a claim of incompetent representation is made, as established by the Ontario Court of Appeal in R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (ONCA):

1. The appellant must establish the facts on which the claim is made;
2. The appellant must establish that the representation provided was incompetent; and
3. The appellant must establish that the incompetent representation resulted in a miscarriage of justice.

[60] The Applicant further submits that the Commission correctly defined a miscarriage of justice as:

A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict.

[61] The Applicant submits that the Commission, despite enunciating the proper legal test to be applied, relied on irrelevant evidence and in doing so failed to reasonably apply the facts of the case to that test. Underlying this submission is the Applicant’s continued assertion that his alleged panic attack could have provided a defence to the charges he was facing.

[62] The Commission, at paras. 56-62, thoroughly reviewed the record and summarized the evidence in order to assess the situation faced by the appellant and his hearing counsel. The Commission expressly did so “to consider whether a miscarriage of justice occurred” as a result of ineffectiveness of counsel leading to an equivocal guilty plea.

[63] The factors that the Commission referred to, which the Applicant suggests were irrelevant, include the following:

1. The Applicant’s previous history of misconduct;
2. Conflicting evidence of other witnesses and their anticipated evidence as to what the Applicant said on June 2, 2013;
3. That the Applicant had left the area of the SATC “at least three times to speak to his Staff Sergeant or to have a cigarette;”
4. That the Applicant claimed the panic attack resulted from him being in a location where his former spouse had made false complaints against him. The Commission noted that the Applicant pled guilty to a domestic assault charge arising from these allegations;
5. That hearing counsel advised the Applicant that he could retain new counsel prior to the October 31, 2014, hearing and that if he chose to do so he would be able to obtain an adjournment;
6. That the plea deal negotiated by his counsel resulted in a financial loss to the Applicant of approximately $5,200 as opposed to the potential loss of his employment, “a possibility that we do not consider was realistic in all the circumstances;” and
7. That the medical evidence tendered by the Applicant to support his position did not establish that he suffered a panic attack on June 2, 2013, and that the medical evidence was based on the Applicant’s self-reporting and was inconsistent with all other evidence as to what occurred on June 2, 2013.

[64] At para. 60, after summarizing the above factors, the Commission noted that, “this was the reality faced by the Appellant” and his hearing counsel. The Commission also observed, at para. 61, that “the resolution of the charges was a negotiated plea deal … akin to a settlement in what is essentially an employment matter.”

[65] We reject the Applicant’s submission that the Commission acted unreasonably in considering the facts summarized above. The Commission was entitled to consider all facts and documents found in the record together with all fresh evidence allowed on the appeal.

[66] In any event, the medical evidence tendered by the Applicant, even if interpreted as the Applicant suggests, does not establish a defence to the charge for which he pled guilty as there is no mens rea component to a charge of discreditable conduct.

[67] We find that the Commission’s conclusion that the Applicant had not met the evidentiary burden required to establish that his guilty plea should be set aside on the basis of alleged ineffectiveness of counsel and that there had not been a miscarriage of justice falls within the range of possible, reasonable conclusions in respect of the facts and law.

[68] The Applicant submits that the Commission, despite citing the correct authorities and test regarding the voluntariness of a guilty plea, unreasonably applied a different and more onerous legal standard to the issue. The Applicant submits that the Commission concluded that his guilty plea was voluntary because he was fit to stand trial, a fact which the Applicant had acknowledged, which was not the issue before the Commission.

[69] Paras. 40-50 of the Decision address this issue. At para. 40, the Commission summarizes an email from the Applicant to his hearing counsel dated October 30, 2014. This email was not included in the Applicant’s affidavit filed as fresh evidence. It was included in the Farrand affidavit, filed as fresh evidence by the Respondent on the appeal before the Commission. In this email, the applicant provides clear instruction to his hearing counsel as to the contents of the ASF and as to the joint submission as to penalty.

[70] At para. 47, the Commission noted the Applicant’s acknowledgement that his medical disorder did not render him incapable of pleading guilty. The Commission recognized the Applicant’s argument to be that his mental illness rendered him unable to think rationally and to withstand pressure to plead guilty when he had a plausible defence.

[71] At para. 23, the Commission correctly cited the test set out in R. v. M.A.W., 2008 ONCA 555, 237 C.C.C. (3d) 560, in considering whether a guilty plea is valid:

A guilty plea is valid if it is voluntary, informed and unequivocal; conversely a plea that is not voluntary, not informed or not unequivocal is invalid and may be set aside on appeal. An appellant has the onus of showing invalidity on a balance of probabilities.

[72] The Commission, at para. 49, proceeded to find that the medical evidence filed by the Applicant was consistent and failed to establish that the Applicant’s ability to make a conscious, volitional decision was impaired to the extent that it affected the voluntariness of his guilty plea.

[73] At para. 50, the Commission did refer to the fact that the Applicant had acknowledged that he was fit to stand trial and that he therefore had the ability to understand the proceedings and to provide instructions, including agreeing to a negotiated plea deal. It does not follow, however, as suggested by the Applicant, that the Commission applied the incorrect test on this issue.

[74] When the Decision is read in its entirety, we find that the Commission identified and applied the correct legal test to the issue of the validity of the Applicant’s guilty plea. We find that the Commission’s conclusion that the Applicant simply failed to discharge the burden of establishing on a balance of probabilities that his plea was involuntary was reasonable.

[75] For all of the reasons set out above, the Application is dismissed.

Costs

[76] The Commission has not sought costs. The Applicant shall pay to the Respondent the costs of this Application fixed in the amount agreed upon between the parties, namely $5,000.00.

J. Fregeau, J.

I agree _____________________________ J. Henderson, J.

I agree ______________________________ W. Matheson, J.

Date of Release: January 30, 2019

CITATION: Bernardon v. Windsor Police Service, 2019 ONSC 764

DIVISIONAL COURT FILE NO.: 17/17

DATE: 20190130

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

J. Henderson, J. Fregeau and W. Matheson JJ.

BETWEEN:

CONSTABLE CHRISTOPHER BERNARDON Applicant

– and –

WINDSOR POLICE SERVICE Respondent

REASONS ON APPLICATION

Fregeau, J.

Date of Release: January 30, 2019