CITATION: Mulligan v. Ontario Civilian Police Commission, 2020 ONSC 2030

DIVISIONAL COURT FILE NO.: 240/18

DATE: 2020/04/15

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Sachs and D.L. Corbett JJ.

BETWEEN:

Ontario Provincial Police Sergeant Dan Mulligan

Applicant

– and –

Ontario Civilian Police Commission and Ontario Provincial Police

Respondents

James A. Girvin, for the Applicant

Matthew Peachey and Jason Tam, for the Ontario Civilian Police Commission

Andrea Huckins, for the Respondent, Ontario Provincial Police

HEARD at Toronto: October 29, 2019

REASONS FOR DECISION

H. Sachs J.

Overview

[1] While off duty, Sergeant Mulligan attended and spoke at a conference where the theme was cannabis legalisation. The conference took place in September 2015, while the decriminalization of marijuana was under discussion, but had not yet been passed into law. In his remarks at the conference, where Sergeant Mulligan was identified as a twenty-nine-year veteran of the Ontario Provincial Police, Sergeant Mulligan made it clear that he was in favour of the legalisation of marijuana, but that he was not representing the views of his employer.

[2] Sergeant Mulligan’s superior had ordered him not to attend or to speak at the conference.

[3] As a result of his attendance and remarks, Sergeant Mulligan was charged with insubordination and discreditable conduct. The insubordination charge arose from the fact that he disobeyed the order of his superior when he attended and spoke at the conference. The basis for the second charge was the allegation that his conduct in speaking at the conference was likely to bring discredit upon the reputation of the Ontario Provincial Police.

[4] On January 23, 2017 the Hearing Officer who heard the matter convicted Sergeant Mulligan of both charges and imposed a penalty of a forfeiture of forty hours in relation to the discreditable conduct charge and a forfeiture of twenty-four hours in relation to the insubordination charge.

[5] Sergeant Mulligan appealed his convictions (but not the penalties) to the Ontario Civilian Police Commission (the “Commission”). On December 17, 2017 the Commission allowed his appeal with respect to the discreditable conduct finding on the basis that there was evidence that by 2012 the majority of Canadians supported the legalisation of marijuana. This made it unreasonable to conclude that promoting that position at a conference would amount to “discreditable conduct in the eyes of the dispassionate, reasonable person even coming from a police officer.” The Commission dismissed the appeal of the insubordination charge, finding that the order Sergeant Mulligan disobeyed by attending and speaking at the conference was a lawful order.

[6] Sergeant Mulligan seeks to judicially review the Commission’s finding of guilt with respect to the insubordination charge. I would allow the application on the basis that the Commission’s reasons on the insubordination charge focused solely on the question of whether there was authority to issue an order in relation to off-duty conduct. They did not address the question of whether, even if there was this authority, Sergeant Mulligan could be found guilty of insubordination. This required considering the factors in s. 80(2) of the Police Services Act, R.S.O. 1990, c.P.15 (the “Act”), which is the section that specifically deals with when a police officer can be found guilty of misconduct in relation to off-duty conduct. Because of the way the arguments were framed before it by counsel, the Commission never considered this section. However, given the Commission’s findings on the disreputable conduct charge, the finding of guilt on the insubordination charge cannot stand.

Factual Background

The Events Giving Rise to the Charges

[7] On September 17, 2015 the Government of Ontario and a group called “Not by Accident” put on a conference in London, Ontario entitled “Cannabis Legalisation – Is this a trip we want to take?”. Not by Accident is a coalition of health units in southwestern Ontario that works together to develop strategies for reducing injuries from collisions involving motor vehicles, all-terrain vehicles, vessels and snow machines.

[8] Sergeant Mulligan was invited to attend and speak at the conference. At the time he was a twenty-nine-year veteran of the OPP and held the position of Pilot in Command. He was also a member of Law Enforcement Against Prohibition (LEAP), which is an international organization of police officers, judges and prosecutors (the majority of whom are retired) and who speak out against the “failed war on drugs”.

[9] On June 30, 2015 Staff Sergeant Cameron was issued a directive by Superintendent Davies to issue a verbal and written order to Sergeant Mulligan not to attend the conference. On the same day Staff Sergeant Cameron verbally ordered Sergeant Mulligan not to attend or speak at the conference. Sergeant Mulligan asked for the order in writing and Staff Sergeant Cameron issued the order again in writing.

[10] The conference agenda provided a biography for Sergeant Mulligan, which contained the following statement:

Dan Mulligan, Police Sergeant

Law Enforcement Against Prohibition (LEAP)

Dan is a [29]-year veteran of the Ontario Provincial Police, where he is a sergeant and currently holds the position of Pilot in Command. Motivated by an interest in problem solving and dealing with people, he rejected prohibitionist drug policies from the beginning. Dan believes that the war on drugs has been a failure since its inception, and that we must all assume a degree of responsibility for the social, economic and criminal justice fallout that has resulted from prohibition.

[11] According to Sergeant Mulligan, when he provided his biography to the conference organizers, it included a disclaimer making it clear that his views did not represent the views of the OPP. This disclaimer was omitted from the material for the conference without his authorization. However, when he began his presentation, he stated that his viewpoint did not reflect or represent that of his employer.

[12] Sergeant Mulligan attended the conference while off duty and in civilian clothes. He gave a thirty-minute presentation as a representative of LEAP and he also participated in a panel discussion. As found by the Commission:

[Sergeant Mulligan’s] presentation was about how prohibition has failed, and he stated in his presentation that he and others in law enforcement saw no need to have a prohibition of cannabis.

[13] Inspector Andrews also attended the conference in an off-duty capacity. He approached Sergeant Mulligan at the registration table for the conference and reminded him that he had been ordered not to attend the conference and not to speak at the conference.

The Charges

[14] On December 15, 2015 Sergeant Mulligan was served with a Notice of Hearing charging him with two counts of insubordination (one in relation to the order given by Staff Sergeant Cameron and one in relation to the reminder he received from Inspector Andrews at the conference). He was also charged with one count of discreditable conduct.

The Hearing Officer’s Decision

[15] The Hearing Officer began his analysis by observing that “it is unlikely the order issued can be a lawful order if the associated off-duty conduct is not considered discreditable.” He therefore addressed the charge of discreditable conduct first and found that it had been made out.

[16] He went on to consider the insubordination counts and found that Staff Sergeant Cameron’s direction not to speak at the conference was a lawful order. According to the Hearing Officer, section 49 of the Police Services Act, R.S.O. 1990, c. P.15 (the “Act”) entitled “Restrictions on secondary activities” provided the basis for the authority to issue the order.

[17] However, the Hearing Officer also found that Staff Sergeant Cameron’s order to Sergeant Mulligan that he not attend the conference was not a lawful order. In the words of the Hearing Officer “It goes beyond what can be considered a lawful order because mere attendance as a public citizen at a Government sponsored (sic) would not meet the definition of discreditable conduct.”

[18] The Hearing Officer did not consider the reminder by Inspector Andrews at the conference to be an order. Thus, the Hearing Officer found Sergeant Mulligan guilty of one count of insubordination and one count of discreditable conduct.

[19] As noted above, in a separate hearing, the Hearing Officer imposed forfeiture penalties in relation to both counts.

The Commission’s Decision

[20] Sergeant Mulligan appealed the Hearing Officer’s findings of guilt to the Commission.

[21] The Commission found that the Hearing Officer did not apply the correct test for discreditable conduct. The test is an objective one. Instead of applying an objective test the Hearing Officer came to a “subjective conclusion” that members of the public would have been “shocked” to hear a member of the OPP make a presentation in favour of legalising marijuana. As put by the Commission, at para. 38 of its decision:

To have applied an objective test, the Hearing Officer would have needed to analyse and explain why the dispassionate, reasonable person would have determined that the appellant speaking at the conference in favour of the legalisation of marijuana, would likely bring discredit upon the reputation of the respondent.

[22] According to the Commission (at para. 39), this required considering both the nature of the conference and the uncontradicted evidence that when the conference took place “the majority of Canadians supported the legalisation or decriminalization of cannabis.”

[23] The Commission also found that the Hearing Officer unfairly used the opinion of Inspector Andrews that Sergeant Mulligan insinuated during his presentation that he would not enforce the laws as they stood.

[24] The Commission revoked the conviction for discreditable conduct.

[25] The Commission agreed with the Hearing Officer that the order issued by Staff Sergeant Cameron was a lawful order under s. 49(1)(a) and (b) of the Act. Therefore, it dismissed Sergeant Mulligan’s appeal in relation to this charge.

Issues Raised on this Application

[26] Sergeant Mulligan raised two issues on this application – what is the applicable standard of review and was the order in question a lawful order.

Standard of Review

[27] Sergeant Mulligan submitted that the Commission’s decision created new law concerning the authority to regulate a police officer’s off-duty activities. This was an issue of central importance to the legal system system as a whole. Therefore, he submitted, the appropriate standard of review is correctness.

[28] I disagree. Resolving the questions in this application does not require creating new law. It involves interpreting the established statute and regulations governing the conduct of police officers. Further the issue, while important, is not the type of legal issue to which the correctness standard should apply. As discussed in Canada (Minister of Immigration) v. Vavilov, 2019 SCC 65 at para. 59, questions of law that are of central importance to the legal system as a whole are questions that “ require uniform and consistent answers” and that are of “‘fundamental importance and broad applicability’, with significant legal consequences for the justice system as a whole or for other institutions of government.”

[29] In Correa v. Ontario Civilian Commission, 2020 ONSC 133, the Divisional Court confirmed that the applicable standard of review to apply to the Commission’s decisions is reasonableness.

[30] In Vavilov, the Supreme Court provided updated guidance on the proper application of the reasonableness standard. According to Vavilov, “the reviewing court asks whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (para. 99). Those factual and legal constraints include the governing statutory scheme (paras. 108-110), other relevant statutory or common law (paras. 111-114), the principles of statutory interpretation (paras. 115-124), the evidence before the decision-maker (paras. 125-126), the submissions of the parties (paras. 127-128), the past practices and decisions of the administrative body (paras. 129-132), and the potential impact of the decision on the individual to whom it applies (paras. 133-135).

[31] The Supreme Court has repeatedly emphasized that a reviewing court cannot interfere with a decision because it would have decided the matter differently or because an alternative interpretation would have been open to the arbitrator (para. 83). Reasons need not be perfect or comprehensive (Vavilov,paras. 91-92). The decision must also be read

…in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well-established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretation set out in a public interpretive policy of the administrative body of which he or she is a member (Vavilov, para. 93).

[32] Reviewing courts must be satisfied that the decision it is reviewing does not contain a “fatal flaw” in its “overarching logic” and that “there is [a] line of analysis within given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” (Vavilov,para.102). Decisions that contain a “fundamental gap” or that are based “on an unreasonable chain of analysis” cannot be sustained even if the outcome of the decision could be reasonable under different circumstances. (Vavilov, para. 96).

Was the Commission’s decision reasonable?

What the Commission Did

[33] The Commission focused its analysis on the question as put to it by Sergeant Mulligan – namely, was the order not to speak at the conference a lawful one. According to Sergeant Mulligan, “while an officer can be found guilty of discreditable conduct pertaining to off-duty conduct, there is no legal authority for the respondent to issue orders pre-emptively with respect to off-duty conduct.” (Commission’s decision, para. 25). The Commission disagreed and found that the authority to pre-emptively regulate off-duty conduct could be found in s. 49 of the Act.

[34] The following are the relevant portions of s. 49 of the Act.

Restriction on secondary activities

49(1) A member of a police force shall not engage in any activity,

(a) That interferes with or influences adversely the performance of his or her duties as a member of a police force, or is likely to do so;

(b) That places him or her in a position of conflict of interest, or is likely to do so;

(4) The chief of police or the board, as the case may be, shall decide whether the member is permitted to engage in the activity and the member shall comply with that decision.

[35] According to the Commission (at para. 28):

The Hearing Officer was therefore correct in finding that section 49(1)(a) and (b) gave the respondent the authority to issue the order to the appellant on the secondary activity of making a presentation at a conference opposing the laws on cannabis, laws which he is required as a police officer to enforce, and speaking out in favour of the legalisation of marijuana.

What the Commission Did Not Do

[36] Before the Commission Sergeant Mulligan submitted that s. 49 did not provide the authority to issue the order in question. Before this court, he argued that s. 49 must be read in the context of the whole Act, including s. 80(2), which is the only section in the legislation that explicitly addresses off-duty conduct.

[37] Section 80(2) reads as follows:

Off-duty conduct

(2) A police officer shall not be found guilty of misconduct under subsection (1) if there is no connection between the conduct and either the occupational requirements for a police officer or the reputation of the police force.

[38] In its decision the Commission did not consider or advert to s. 80(2). Nor did it advert to or consider subsection (1) of section 80, which provides that “A police officer is guilty of misconduct if she or he, (a) commits an offence described in a prescribed code of conduct.”

[39] Section 30(1) of the O. Reg. 268/10 enacted pursuant to the Act provides that “[a]ny conduct, set out in the Schedule, constitutes misconduct for the purpose of section 80 of the Act.” In the Schedule (which is entitled “Code of Conduct”) s. 2(1)(b) provides that any police officer commits misconduct if she or he engages in insubordination, which in section 2(1)(b)(ii) is defined as “without lawful excuse, disobeys, omits or neglects to carry out any lawful order.”

[40] In other words, insubordination is “an offence described in a prescribed code of conduct”, which makes it misconduct under subsection (1) of section 80. This means that pursuant to s. 80(2), if the order relates to off-duty conduct, the police officer cannot be found guilty of insubordination if there is no connection between “that conduct and either the occupational requirements for a police officer or the reputation of the police force.”

[41] Sergeant Mulligan was correct when he submitted that the authority for the order in question did not arise under s. 49 and when he argued that s.80(2) was relevant to the analysis. He was incorrect when he argued that there was no authority to pre-emptively regulate a police officer’s off-duty conduct. Section 80 provides both the authority and the restrictions on that authority.

[42] While s. 80(2) was argued before this court in submissions, the issue was never articulated by either party in the manner set forth above. Thus, the panel wrote to counsel, setting out the above analysis and asking them what effect, if any, the Commission’s failure to mention s. 80(2) in its decision on the insubordination finding should have on the judicial review application.

[43] According to the OPP, the impact of s. 80(2) was not before the Commission. Furthermore, the fact that it was not specifically addressed does not affect the reasonableness of the Commission’s decision since “Section 49(1)(a) is just a more specific articulation of the requirement in s. 80(2) in relation to secondary activities.” (OPP’s Factum at para. 11). Sergeant Mulligan, on the other hand, submitted that the Commission’s failure to address s. 80(2) rendered its decision unreasonable.

[44] It is not clear whether s.80(2) was ever raised before the Commission. It was certainly raised before this court in oral argument (although its place in the legislative scheme was never correctly analyzed).

[45] I agree with Sergeant Mulligan that the Commission’s failure to address s. 80(2) of the Act does affect the reasonableness of its decision. The Commission only asked itself whether an order could be issued in relation to off-duty conduct and it relied on s. 49 to find that it could. It never asked itself whether, even if the order could be issued, the officer could be punished for disobeying that order. To answer that question required a consideration of s. 80(2). It was the essential issue in the case and it was never considered by the Commission. This renders its decision unreasonable.

Remedy

[46] Sergeant Mulligan is seeking to have us set aside the order of the Commission and revoke the finding of guilt. The Respondent does not dispute our jurisdiction to do so, but argues that if we find (as we have) that the Commission’s decision is unreasonable, the matter should be remitted back to the Commission so that it can apply the proper framework to its analysis and consider s. 80(2).

[47] In Vavilov, supra, at para. 141, Supreme Court confirmed that “where a decision reviewed by applying the reasonableness standard cannot be upheld, it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision, this time with the benefit of the court’s reasons.” However, in para. 142 the Court also confirmed that “[d]eclining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose.”

[48] In this case the Commission has made a finding that, viewed objectively, Sergeant Mulligan’s conduct did not adversely affect the reputation of the police force. As held by the Commission in a previous decision, Stock v. Windsor Police Service, 2014 ONCPC 13, the test under s. 80(2) is an objective one (see paras. 51 and 52). Further, this court has found that in order to establish a connection with the reputation of the police force it is necessary to establish that the conduct in question “would likely (emphasis added) bring discredit upon the police force and that it was not sufficient for the prosecutor to establish that it was a mere possibility” (Monaghan v. Toronto Police Force, 2005 11796 (Div. Ct.) at para. 26). Given this, I accept that having made the findings it has regarding the disreputable conduct count, the Commission could not find there was the connection required under s. 80(2) between Sergeant’s Mulligan’s conduct in speaking at the conference and the reputation of the police force.

[49] The second component of s. 80(2) requires asking whether there is a connection between Sergeant Mulligan’s conduct in speaking at the conference and the occupational requirements of the police force. In other words, applying the test in Monaghan, supra, was it likely that Sergeant Mulligan’s conduct in speaking at the conference would impact on the occupational requirements of a police officer?

[50] As a police officer Sergeant Mulligan is required to enforce the law. Therefore, if by his conduct in speaking in favour of marijuana legalization Sergeant Mulligan demonstrated that it was likely that he would not enforce the laws as they stood this would constitute the necessary connection under s. 80(2). Further, if a reasonable person would infer that a police officer who spoke in the way Sergeant Mulligan did would not enforce the law, this too would constitute the necessary connection as it could affect the reputation of the police force, something every officer is required to uphold.

[51] In its decision the Commission found that the Hearing Officer erred in relying on evidence that Sergeant Mulligan would not enforce the current laws. Specifically, at paragraphs 40 to 43 the Commission stated as follows:

[40] Evidence was presented before the Hearing Officer that in 2012 the majority of Canadians supported the legalisation or decriminalization of cannabis. In our view, it would be unreasonable to conclude that the appellant’s agreement with that position, stated at a conference promoting that position, would amount to discreditable conduct in the eyes of the dispassionate, reasonable person even coming from a police officer.

[41] Nor did the Hearing Officer engage in this type of analysis in considering whether the appellant’s presentation amounted to his saying that he would not enforce the existing laws, as was the opinion of Insp. Andrews.

[42] The Hearing Officer’s reliance on Insp. Andrews’ opinion that the appellant gave the impression that he would not enforce the existing laws is problematic. At page 5 of his decision, the Hearing Officer wrote: “As noted, the particulars for discreditable conduct as set out in the Notice of Hearing (NoH) are not in dispute.” The particulars on this charge did not allege that the appellant stated or inferred that he would not enforce the current laws.

[43] The appellant testified that he did enforce the laws and submitted in argument that the prosecution never put to him the proposition that he somehow insinuated at the conference that he would not continue to enforce the laws. Yet, the Hearing Officer used the opinion of Insp. Andrews as support for his finding that the appellant committed discreditable conduct. Doing so was unfair to the appellant.

[52] Having made the finding that the Hearing Officer erred in relying on Inspector Andrews’ evidence to support the discreditable conduct count, it would be manifestly unreasonable for the Commission to use this evidence (the only evidence on the point) to support a finding of guilt on the insubordination count.

[53] The issue remains whether it is likely that a reasonable person would have inferred from Sergeant Mulligan’s presentation at the conference that he would not enforce the laws he was obligated to uphold. There is no question that in certain circumstances this inference could be made. But if it was a reasonable one, it would also form the basis for a finding of discreditable conduct. Indeed, it was the basis for the Hearing Officer’s finding of discreditable conduct. This is clear from page 22 of his decision, where the Hearing Officer stated:

I am of the view there is a strong likelihood that members of the public in attendance at the conference would be shocked to hear a serving member of the OPP speak out against existing legislation he is sworn to enforce. (emphasis added).

[54] The Commission disagreed that this inference was an objectively reasonable one on the facts of this case. Therefore, it would be manifestly unreasonable for them to draw the same inference to support a finding of insubordination.

[55] In the result, given the findings made by the Commission, the test in s.80(2) cannot be met and the result is inevitable: the underlying charges must be dismissed.

Conclusion

[56] For these reasons the application is granted, the decision of the Commission is set aside and the finding of guilt in relation to the charge of insubordination is revoked. Neither party sought costs and none are ordered.

H. Sachs J.

I agree _______________________________

Kiteley J.

I agree _______________________________

D.L. Corbett J.

Released: April 15, 2020

CITATION: Mulligan v. Ontario Civilian Police Commission, 2020 ONSC 2030

DIVISIONAL COURT FILE NO.: 240/18

DATE: 2020/04/15

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Sachs and D.L. Corbett JJ.

BETWEEN:

Ontario Provincial Police Sergeant Dan Mulligan

Applicant

– and –

Ontario Civilian Police Commission and Ontario Provincial Police

Respondents

REASONS FOR DECISION

H. Sachs J.

Released: April 15, 2020