CITATION: Kent v. Durham Regional Police Service, 2025 ONSC 1732

DIVISIONAL COURT FILE NO.: 364/24

DATE: 20250319

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CONSTABLE SHAWN KENT, Applicant

AND:

DURHAM REGIONAL POLICE SERVICE AND ONTARIO CIVILIAN POLICE SERVICE, Respondents

BEFORE: Matheson, Trimble, Nakatsuru JJ.

COUNSEL: Sandip Khehra, for the Applicant Alex Sinclair and Oscar Moody, for the Durham Regional Police Service Morgana Kellythorne, for the Ontario Civilian Police Commission

HEARD at Toronto: March 18, 2025

ENDORSEMENT

[1] This is a judicial review of the Ontario Civilian Police Commission (the OCPC) decision dated May 17, 2024, upholding the finding of misconduct against the Applicant arising from a discipline decision dated June 27, 2023 with a penalty decision dated September 15, 2023. The Applicant was found to have engaged in discreditable conduct.

[2] The underlying allegations arose from submissions that the Applicant made using a virtual suggestion box that had been established to get input about the EDI initiatives of the Durham Regional Police Service. The online welcome page said that the purpose was to seek input, feedback and advice from people at all levels about areas in which the Service could improve and to affect positive change in the Service. It said that it was 100% anonymous and completely confidential. The submission page clearly stated that the suggestion box was not a tool to submit internal complaints or grievances.

[3] Despite the above limit on the use of the suggestion box, the Applicant submitted several comments via the suggestion box that led to allegations of discreditable conduct and insubordination, addressed at a disciplinary hearing.

[4] At the hearing, the Applicant agreed that his submissions to the suggestion box met the definition of discreditable conduct, as profane, abusive or insulting language to another member of the police force. However, he brought an abuse of process motion and argued that his comments were privileged and confidential. After a hearing, the Hearing Officer found that the impugned comments fell outside the purpose of the suggestion box. The Hearing Officer found that the Applicant had engaged in discreditable conduct for using profane, abusive or insulting language to another member of the police force. The allegation of insubordination was dismissed. In the penalty phase, the Applicant was required to forfeit thirty hours of work.

[5] The Applicant appealed to the OCPC, which addressed all the grounds put forward by the Applicant, including those raised again on this application for judicial review. The appeal was dismissed.

[6] The Applicant relies on two grounds for this judicial review and submits that the standard of review is correctness. He submits that the overall process was unfair and an abuse of process because he was entrapped into making the comments and because his communications via the suggestion box were protected by the common law case-by-case privilege.

[7] In lengthy reasons for decision, the Commission addressed the appeal including grounds based on the brevity of the Hearing Officer’s reasons, in light of the entire record. The Commission held that it was clear that the Hearing Officer had turned his mind to the principles governing the abuse of process motion. The Commission found that the entrapment argument was exceptionally weak, noting that the Hearing Officer would have had to accept that the suggestion box was established to offer the Applicant an opportunity to commit misconduct.

[8] On privilege, the Commission referred what the Applicant agrees is the relevant test, as summarized in R. v. National Post, 2010 SCC 16. The Commission found that the Applicant’s comments, which he admitted amounted to profane, abusive or insulting language, bore little to no connection to the purpose of the suggestion box and the relationship that the Service sought to foster with its members by instituting it. The Commission considered the Hearing Officer’s reasons finding that the impugned comments fell outside the purpose of the suggestion box. The second branch of the test was therefore not established.

[9] We are not persuaded that the Commission made a reviewable error with respect to either of the above issues, regardless of the standard of review. The Commission’s reasons for decision on both issues set out the correct legal principles and apply those principles to the Hearing Officer’s decision without error. We adopt those reasons in all material respects.

[10] This application is dismissed, with costs to the Durham Regional Police Service in the agreed upon amount of $10,000, all inclusive. There shall be no costs for or against the OCPC.

Matheson J.

Trimble J.

Nakatsuru J.

Date: March 19, 2025