Gannon v. Windsor Police Service, 2026 ONSC 532

CITATION: Gannon v. Windsor Police Service, 2026 ONSC 532

DIVISIONAL COURT FILE NO.: 017/24 (London)
DATE: 20260212

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Firestone R.S.J., Lococo and Shore JJ.

BETWEEN:

sergeant christian Gannon

Applicant

– and –

WindsoR police servIce

Respondent

COUNSEL: Joanne E. Mulcahy, for the Applicant Alex Sinclair and Oscar Moody, for the Respondent

HEARD at London: November 25, 2025

REASONS FOR JUDGMENT

R. A. Lococo J.

I. Introduction

[1] The applicant Sergeant Christian Gannon brings an application for judicial review of the decision of the Ontario Civilian Police Commission (the “Commission” or the “OCPC”) dated March 3, 2024, reported at 2024 ONCPC 28 (the “OCPC Decision”).

[2] Sergeant Gannon, a police officer with the respondent Windsor Police Service (the “WPS”), was the subject of disciplinary proceedings under the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”), following the arrest (and release after around ten minutes) of two members of the public. One of the arrested individuals had been misidentified as the target of a drug investigation.

[3] In the “Misconduct Decision” dated January 19, 2023, the Hearing Officer found Sergeant Gannon guilty of charges of (i) Unlawful or Unnecessary Exercise of Authority, and (ii) Neglect of Duty. In the “Penalty Decision” dated March 24, 2023, the Hearing Officer imposed sanctions on Sergeant Gannon that included demotion from Sergeant to First Class Constable for a period of three months.

[4] Sergeant Gannon appealed the Misconduct Decision and the Penalty Decision (collectively, the “Hearing Decisions”) to the Commission. He also brought a motion to adduce fresh evidence on appeal. The proposed fresh evidence related to private communication between the Hearing Officer and the WPS’s Deputy Chief with respect to the proper method for calculating the three-month demotion period. The Commission heard the fresh evidence motion as a preliminary issue at the appeal hearing’s commencement.

[5] In the OCPC Decision, the Commission dismissed the fresh evidence motion and allowed the appeal in part. The Commission (i) confirmed the finding that Sergeant Gannon was guilty of Unlawful or Unnecessary Exercise of Authority, (ii) revoked the finding that he was guilty of Neglect of Duty, (iii) revoked the Penalty Decision, and (iv) ordered a new hearing on the charge of Neglect of Duty and penalty before a new hearing officer.

[6] Before this court, Sergeant Gannon submits that it was unreasonable for the Commission to (i) dismiss the fresh evidence motion, (ii) confirm the finding of Unlawful or Unnecessary Exercise of Authority, and (iii) order a new hearing relating to Neglect of Duty and penalty. He asks the court to set aside that the OCPC Decision and enter an acquittal on both charges.

[7] For the reasons below, I would dismiss the judicial review application.

II. Background and chronology

A. Brief factual background

[8] On December 20, 2019, members of the Emergency Task Force Unit (collectively, the “ETFU”) of the WPS were conducting surveillance on a residence in Windsor as part of a drug investigation. The public complainant (“PC”) left his residence and went to a Shoppers Drug Mart, where he met up with his brother. The ETFU arrested them both in the parking lot and placed them in handcuffs. Sergeant Gannon arrived at the scene shortly after the arrest. By that time, Sergeant Gannon and the ETFU had received information from the WPS that PC was not the person who was the subject of the investigation and should not have been arrested. However, the arrest continued for another nine to ten minutes while Sergeant Gannon interviewed PC: OCPC Decision, at para. 13.

B. Disciplinary proceedings under the PSA

[9] Sergeant Gannon’s actions on December 20, 2019 became the subject of disciplinary proceedings under the PSA for alleged misconduct.

[10] As legislative background, the PSA established a process for investigating and prosecuting police misconduct. A police officer alleged to have committed misconduct was entitled to a hearing before the Chief of Police or their delegate (a “Hearing Officer”). If the misconduct was proven on clear and convincing evidence (the standard set out in the PSA), the Hearing Officer had the discretion to impose a variety of penalties, ranging from a reprimand to dismissal: PSA, ss. 76(9), 84-85.

[11] The OCPC was an administrative tribunal established under the PSA. It performed various police oversight functions, including hearing appeals from first instance police discipline proceedings: PSA, s. 87(1).

[12] On April 1, 2024, the PSA was repealed and replaced by the Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sched. 1 (the “CSPA”), which includes a revised legislative process for investigating and prosecuting police misconduct. However, the PSA (as it read immediately prior to its repeal) continues to apply, with necessary modifications, to disciplinary appeals that were initiated under the PSA prior to its repeal, including the OCPC appeal that is the subject of this judicial review: CSPA, s. 216(1). The same is true of the OCPC’s Rules of Practice (revised 2014) (the “OCPC Rules of Practice”) made under s. 22(3) of the PSA and ss. 25.0.1 and 25.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”).

[13] The CSPA also provides that the OCPC would be dissolved on a date to be designated in the regulations. Until that time, the OCPC would continue to carry out its duties relating to hearings and appeals initiated before the PSA was repealed: CPSA, ss. 20(5), 20(5.1). The OCPC was dissolved effective September 1, 2025: see O. Reg. 125/24: Transitional Matters, s. 8, as amended by O. Reg. 220/25, ss. 2, 7.

C. Disciplinary proceedings against Sergeant Gannon

[14] As noted above, Sergeant Gannon’s actions on December 20, 2019, became the subject of disciplinary proceedings under the PSA for alleged misconduct, contrary to s. 80(1) of the PSA. Misconduct is defined in s. 80(1)(a) to include an offence described in the Code of Conduct set out in the regulations under the PSA: O. Reg. 268/10: General, Sched.

[15] By Notice of Hearing dated January 14, 2021, Sergeant Gannon was required to appear before a Hearing Officer to face two charges of misconduct arising from his actions regarding PC and his brother. The Notice of Hearing alleged that Sergeant Gannon’s actions may constitute:

a. Count #1: Unlawful or Unnecessary Exercise of Authority, contrary to s. 2(1)(g)(i) of the Code of Conduct; and

b. Count #2: Neglect of Duty, contrary to s. 2(1)(c)(i) of the Code of Conduct.

[16] Section 2(1) of the Code of Conduct provides in part:

2.(1) Any chief of police or other police officer commits misconduct if he or she engages in,

(c) Neglect of Duty, in that he or she,

(i) without lawful excuse, neglects or omits promptly and diligently to perform a duty as,

(A) a member of the police force of which the officer is a member,

(g) Unlawful or Unnecessary Exercise of Authority, in that he or she,

(i) without good and sufficient cause makes an unlawful or unnecessary arrest,

(i.1) without good and sufficient cause makes an unlawful or unnecessary physical or psychological detention,

[17] Sergeant Gannon’s misconduct hearing commenced on August 8, 2022, before the Hearing Officer, who is a retired police superintendent and an Ontario Provincial Police Adjudicator. The hearing included 11 days of testimony from five witnesses, followed by counsel’s closing submissions on December 13, 2022.

[18] On January 19, 2023, the Hearing Officer issued the Misconduct Decision. The Hearing Officer found that PC should have been released and the handcuffs removed immediately when Sergeant Gannon was made aware that PC was not the intended target and that the wrong person had been arrested. Having failed to do so, Sergeant Gannon was found guilty of Unlawful or Unnecessary Exercise of Authority under s. 2(1)(g)(i) of the Code of Conduct. In addition, the Hearing Officer found that PC was never informed of his rights to counsel under s. 10(b) of the Charter.[^1] The Hearing Officer found that it was Sergeant Gannon’s responsibility to give the rights to counsel. He found Sergeant Gannon guilty of Neglect of Duty under s. 2(1)(c)(i) of the Code of Conduct.

[19] On March 24, 2023, the Hearing Officer issued the Penalty Decision. He ordered that Sergeant Gannon be demoted from Sergeant to First Class Constable for a period of three months. If “annual leave” was taken during that period, the time taken would be added to the demotion period. The Hearing Officer also ordered that Sergeant Gannon attend a refresher training session on arrest procedures and any other training sessions deemed appropriate by WPS management.

D. Appeal to the Commission

[20] Sergeant Gannon appealed the Hearing Decisions to the Commission under s. 87(1) of the PSA. He also brought a motion to adduce fresh evidence on appeal under s. 87(5) of PSA.

[21] The appeal hearing proceeded by videoconference before a panel of three OCPC Vice-Chairs on December 20, 2023. The fresh evidence motion was heard as a preliminary issue at the hearing’s commencement. The evidence Sergeant Gannon sought to introduce related to private communication between the Hearing Officer and the Deputy Chief of the WPS with respect to the proper calculation of the demotion period imposed in the Penalty Decision. The proposed evidence, as described in para. 5 of the OCPC Decision, was that “on March 31, 2023, the Deputy Chief disclosed that he had confirmed with the Hearing Officer that ‘annual leave time’ included sick time.”

[22] On March 18, 2024, the Commission released the OCPC Decision, allowing the appeal in part. At para. 11, the Commission dismissed the fresh evidence motion, finding “the new evidence to be irrelevant to the issues in the appeal.”

[23] In the OCPC Decision, the Commission made the following findings and rulings:

a. The private communication, which occurred after the Penalty Decision was released, did not affect the penalty imposed, did not expand the penalty to include sick time during the period of demotion, and did not disclose a breach of natural justice or an apprehension of bias on the part of the Hearing Officer: OCPC Decision, at paras. 8-10.

b. The Hearing Officer did not err by copying general passages from his own prior decisions and pasting them into the misconduct decision: at paras. 25, 30.

c. The Commission upheld the Hearing Officer’s findings of Unlawful or Unnecessary Exercise of Authority. It found that Sergeant Gannon was responsible for PC’s ongoing arrest after it became known that he was misidentified and that the arrest at that point was unnecessary and unlawful: at para. 40.

d. The Hearing Officer’s failure to conduct a good and sufficient cause analysis was immaterial to the determination that the arrest was unlawful because he found that PC remained under arrest after the grounds for that arrest were no longer reasonable on any objective or subjective analysis: at para. 46.

e. The issue before the Hearing Officer was not whether any ongoing detention was arbitrary but whether the continued arrest of PC, after the misidentification became known, was necessary or lawful. The Commission held that it was reasonable for the Hearing Officer to find that the continued arrest was not necessary or lawful: at para. 50.

f. The evidentiary errors alleged by Sergeant Gannon did not impact the Hearing Officer’s misconduct decision as a whole or any of the central issues in dispute. Therefore, the Commission gave no weight to that ground of appeal: at para. 56. Further, the Commission found that it was not an error for the Hearing Officer to allow notes and duty reports of officers who were not called by the prosecutor as witnesses into evidence: at para. 57.

g. Regarding the charge of Neglect of Duty, the Commission found that the Hearing Officer made errors of law by (i) discounting the evidence presented at the hearing and replacing it with his own experience as a police officer, and (ii) failing to set out the test for Neglect of Duty and not making findings with respect to the elements of the test: at paras. 65 and 68.

[24] In light of those findings, the Commission (i) upheld the finding of Unlawful or Unnecessary Exercise of Authority, (ii) revoked the finding of Neglect of Duty, (iii) revoked the Penalty Decision, and (iv) ordered a new hearing relating to Neglect of Duty and penalty before a new hearing officer: OCPC Decision, at paras. 73-75.

III. Judicial review application

[25] By Notice of Application to Divisional Court dated April 22, 2024, Sergeant Gannon seeks judicial review of the OCPC Decision. Sergeant Gannon submits that it was unreasonable for the Commission to (i) dismiss the fresh evidence motion, (ii) confirm the finding of Unlawful or Unnecessary Exercise of Authority, and (iii) order a new hearing relating to Neglect of Duty and penalty. He asks the court to set aside the OCPC Decision and enter an acquittal on both charges, without remitting the matter to the Commission.

[26] The WPS disputes that the OCPC Decision was unreasonable and asks the court to dismiss the judicial review application. Prior to its dissolution, the OCPC provided a factum that, among other things, set out the statutory scheme for police misconduct proceedings under the PSA and relevant case law. It took no position on the merits of the application.

A. Jurisdiction and standard of review

[27] There is no right of appeal to this court from a decision of the Commission under s. 87 of the PSA. The Divisional Court’s jurisdiction is restricted to judicial review of the decision: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2(1), 6(1).

[28] Upon judicial review of an administrative decision, there is a presumption that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 23. There is no dispute that the reasonableness standard of review applies in this case.

[29] Reasonableness review “finds its starting point in the principle of judicial restraint” but remains “a robust form of review” rather than “a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability”: Vavilov, at para. 13. In conducting a reasonableness review, the court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible, and justified. The court must focus on the decision actually made, including the justification offered for it: Vavilov, at para. 15.

[30] A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires a reviewing court to defer to such a decision: Vavilov, at para. 85. The relative expertise of administrative decision makers with respect to the questions before them is a relevant consideration in conducting reasonableness review: Vavilov, at paras. 31, 92-93.

[31] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on that basis, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov, at para. 100.

[32] A tribunal is required to conduct its proceedings fairly. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including those set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), 1999 SCC 699, [1999] 2 S.C.R. 817, at paras. 21-28.

B. Issues to be determined

[33] On this judicial review, Sergeant Gannon raises the issues listed below. The issues in subparagraphs (b) to (f) relate to the finding of misconduct for Unlawful or Unnecessary Exercise of Authority in Count #1 of the Notice of Hearing, since the Commission set aside the finding of misconduct for Neglect of Duty in Count #2.

a. Private communication: Did the Commission err in its treatment of private communication between the Hearing Officer and the WPS’s Deputy Chief?

b. Use of precedents: Did the Commission err in its treatment of the Hearing Officer’s use of precedents?

c. Treatment of Notice of Hearing: Did the Commission err in its treatment of the Notice of Hearing?

d. “Good and sufficient cause” analysis: Did the Commission err its treatment of the “good and sufficient cause” analysis?

e. Approach to detention: Did the Commission err in its treatment of the Hearing Officer’s approach to detention?

f. Evidence issues: Did the Commission err in its treatment of evidence before the Hearing Officer?

g. New hearing for Neglect of Duty: Did the Commission err in ordering a new hearing relating to the charge of Neglect of Duty?

[34] These issues are addressed below.

IV. Analysis

A. Private communication

[35] Sergeant Gannon submits that the Commission erred in its treatment of the fresh evidence of private communication between the Hearing Officer and the WPS’s Deputy Chief. This proposed evidence related to the proper method for calculating the three-month demotion period.

Applicant’s position at OCPC hearing and Commission’s findings

[36] Sergeant Gannon’s fresh evidence motion was brought pursuant to s. 87(5) of the PSA, which provides:

Appeal on the record

87(5) A hearing held under this section shall be an appeal on the record, but the Commission may receive new or additional evidence as it considers just.

[37] Before the Commission, Sergeant Gannon argued that the requirements for admission of fresh evidence were met. That included the requirement in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 that the private communication “affected the result” since the communication affected the penalty “to be imposed”: OCPC Decision, para. 8. The Commission rejected that submission, noting that the private communication could not have affected the penalty since the communication occurred after the Penalty Decision was released.

[38] In dismissing the fresh evidence motion, the Commission further found the proposed new evidence to be “irrelevant to the issues in the appeal”: OCPC Decision, at para. 11. In its analysis, the Commission quoted the test for admission of fresh evidence set out in Palmer, the fourth element of which requires that the evidence, if believed and when taken with the other evidence, “could reasonably… be expected to have affected the result”: OCPC Decision, at para. 6. The Commission also cited Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.), leave to appeal ref’d, [1980] 2 S.C.R. viii (note). In that case, the court indicated that in “rare and exceptional circumstances”, fresh evidence may be admitted by a reviewing court “to show a complete absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record”: OCPC Decision, at para. 7.

[39] Sergeant Gannon also submitted that he was prejudiced by the private communication. He argued it had the effect of “[expanding] the penalty to include sick time taken during the period of demotion”: OCPC Decision, at para. 9. The Commission rejected that submission, at para. 10:

We do not agree. The penalty imposed did not change as the result of the communications. There was no amendment made to the Penalty Decision and no addendum issued by the Hearing Officer. The Hearing Officer’s comments to the effect that annual leave includes sick time was made after the Penalty Decision was issued and has no impact on the effect of the Penalty Decision.

[40] Sergeant Gannon also challenged the propriety of the private communication without his presence, on the basis that it constituted a breach of natural justice or a reasonable apprehension of bias, and it was also in breach of s. 83(12) of the PSA. Section 83(12) provides that “the person conducting the hearing shall not communicate directly or indirectly in relation to the subject matter of the hearing with any person, unless the parties receive notice and have an opportunity to participate.”

[41] At para. 10 of their decision, the Commission rejected that submission, stating:

We also find that the proposed evidence of a conversation that occurred after proceedings had concluded and the hearing officer was functus does not disclose a breach of natural justice or an apprehension of bias on the part of the Hearing Officer.

Applicant’s position on judicial review

[42] Before this court, Sergeant Gannon in substance repeats the submissions he made unsuccessfully before the Commission. He submits that the proposed fresh evidence established the timing of the WPS’s Deputy Chief’s disclosure that he had private communication with the Hearing Officer, the disclosure occurring after the Penalty Decision was released. He argues that the proposed new evidence does not establish that the communication itself occurred after the Penalty Decision, as the Commission implied at para. 8.

[43] Sergeant Gannon also submits that it was unreasonable for the Commission to conclude that he was not prejudiced by the private communication. He challenges the finding that the communication did not have the effect of expanding the penalty to include sick time taken during the period of demotion. As well, he repeats his submission that the private communication constituted a breach of natural justice or a reasonable apprehension of bias on the part of the Hearing Officer and was in breach of s. 83(12) of the PSA.

Discussion and conclusion

[44] I conclude that Sergeant Gannon has not established that the Commission erred in its treatment of private communication between the Hearing Officer and the WPS’s Deputy Chief in its consideration of the fresh evidence motion. The OCPC Decision relating to the fresh evidence motion is reasonable and entitled to deference.

[45] It is well established that tribunals that have authority to control their own processes are owed considerable deference on procedural decisions. This is because administrative tribunals, including the Commission, have experience and expertise balancing the need to ensure fair participation by all parties with the expeditious determination of the proceeding on its merits: see Baker, at para. 27. Exercising the discretion to grant or dismiss a motion to introduce fresh evidence falls squarely within the Commission’s control of process: see PSA, ss. 87(5), 22(3); SPPA, ss. 25.0.1, 25.1; and OCPC Rules of Practice, rr. 3-4.

[46] In the OCPC Decision, the Commission explained the rationale for dismissing the fresh evidence motion. The reasons are consistent with the applicable law and the submissions the WPS made to the Commission. They should also be read in accordance with the Supreme Court’s instructions for conducting reasonableness review: see Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 16-18; Vavilov, at para. 91.

[47] As noted previously, the Commission correctly set out the test for the admission of fresh evidence in Palmer and Keeprite: OCPC Decision, at paras. 6-7. The Commission explained that the evidence was irrelevant for two principal reasons:

a. The penalty imposed did not change as a result of the communication; and

b. There was no apprehension of bias or breach of natural justice, noting that the Hearing Officer was functus officio at the time of the communication.

[48] The Commission considered and rejected Sergeant Gannon’s argument that the communication between the WPS’s Deputy Chief and the Hearing Officer expanded the penalty imposed. As previously noted, to succeed on the fresh evidence motion, the applicant bears the onus of establishing that the test set out in the case law was met, including that the proposed evidence “could reasonably…be expected to have affected the result.” At para. 10, the Commission found otherwise, holding that the Penalty Decision did not change as a result of the communication. That was a reasonable finding of fact that was open to the Commission. It is entitled to significant deference. There was no evidence before the Commission that the manner in which the penalty was imposed changed as a result of the communication.

[49] Further, if there is a breach of natural justice or procedural fairness, the matter need only be returned to the decision maker for reconsideration where the breach had an impact on the decision: Maini v. College of Physicians and Surgeons of Ontario, 2022 ONSC 3326 (Div. Ct.), at paras. 30-31; Al-Kazely v. College of Physicians and Surgeons of Ontario, 2022 ONSC 44 (Div. Ct.), at paras. 47-51. At para. 10 of the OCPC Decision, the Commission found that the Penalty Decision was not impacted by the communication. Therefore, even if a breach of procedural fairness occurred (which the WPC contests), there would be no basis for reconsideration.

[50] In any case, the Commission set aside the Penalty Decision on other grounds, rendering moot the issue of whether the penalty changed as a result of the communication.

[51] To the extent that Sergeant Gannon is raising the issue of bias, there is a high bar to establish reasonable apprehension of bias and to displace the presumption of impartiality. That bar has not been met in this case.

[52] The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:

[T]he 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. In the words of the Court of Appeal, 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.”

[53] There is a “strong presumption” in favour of the impartiality of an adjudicative decision maker. As the Supreme Court has observed, that presumption is “not easily displaced.” An allegation of a reasonable apprehension of bias is a serious allegation. It calls into question the personal integrity of the adjudicator along with the integrity of the administration of justice. Accordingly, the threshold for proving bias has been described as “high”, resting on “serious grounds”, and requiring “substantial” proof of a “real likelihood or probability of bias.” Mere suspicion is insufficient: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 25-26, 30; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at paras. 59, 76.

[54] The strong presumption of impartiality has not been rebutted in this case. At para. 10, the Commission held that the proposed evidence “does not disclose … an apprehension of bias on the part of the Hearing Officer”, noting that the private communication “occurred after proceedings had concluded [when] the hearing officer was functus”. As previously noted, it was open to the Commission to find that the communication occurred after the Penalty Decision was released. The onus was on the applicant to demonstrate that the Commission erred in reaching that conclusion. Sergeant Gannon has not met that onus. The Commission did not err in concluding that Sergeant Gannon did not establish a reasonable apprehension of bias on the part of the Hearing Officer while acting in their adjudicative capacity. A decision maker is functus officio when they make a final decision in respect of the matter before them: Chandler v. Alberta Association of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848, at p. 861; Stanley v. Toronto (City) Police Service, 2020 ONCA 252, at para. 46, leave to appeal refused, [2020] S.C.C.A. No. 185.

[55] In reaching the conclusion that Sergeant Gannon did not establish that the Commission erred in its analysis, I considered the caselaw that his counsel relied on, including Timms-Fryer and Amherstburg Police Service and Challans, 2015 ONCPC 17 and Hunt v. Strata Plan LMS 2556, 2018 BCCA 159. I conclude that those cases do not assist Sergeant Gannon.

[56] In Timms-Fryer, the OCPC considered a motion by the respondent police service to admit three affidavits in response to the appellant/complainant’s fresh evidence motion. These affidavits alleged breaches of natural justice and procedural fairness in the context of a police disciplinary hearing. The affiants were the Hearing Officer, the Chief and Deputy Chief of the respondent police service, and the prosecutor at the hearing. To support his position, Sergeant Gannon’s counsel referred the court to para. 14 of Timms-Fryer:

We also share the Appellant’s concern that it is improper for the Hearing Officer to swear an affidavit in cooperation with the Service’s law firm. The Hearing Officer must be and appear to be independent of the parties. Swearing an affidavit in cooperation with the [police] Service’s law firm calls this independence into question.

[57] That is not the basis for the OCPC’s decision to dismiss the motion, however. In Timms-Fryer, citing Keepright, the OCPC refused to admit the three responding affidavits, confirming its earlier ruling that the complainant’s allegations of fairness breaches “could be [argued and] determined by reference to the record”, without the proposed fresh evidence: Timms-Fryer, at paras. 9-10. In these circumstances, I do not see how Timms-Fryer is of any significant assistance to Sergeant Gannon.

[58] I reach the same conclusion about the B.C. Court of Appeal’s decision in Hunt. In that case, the lawyer for the successful party on an arbitration had undisclosed communications on four occasions with a member of the arbitration panel while the arbitration was proceeding. In those circumstances, the court found a reasonable apprehension of basis that justified setting aside the arbitral decision: Hunt, at para. 138. I find Hunt to be distinguishable since, unlike in the matter before us, the communication took place on multiple occasions while the arbitration was proceeding, rather than after the final decision on penalty was released.

[59] That being said, there is no doubt that it is important for a decision maker (whether administrative or judicial) to maintain both the appearance and reality of independence from the parties, as stated in Timms-Fryer. For that reason, the private communication that occurred between the Hearing Officer and the WPS’s Deputy Chief was inadvisable, even after the release of the Penalty Decision. However, I conclude that the communication did not meet the high threshold of demonstrating a reasonable apprehension of bias in the circumstances of this case.

[60] Accordingly, I conclude that Sergeant Gannon has not established that the Commission erred in its treatment of private communication between the Hearing Officer and the WPS’s Deputy Chief in considering the fresh evidence motion.

B. Use of precedents

[61] Sergeant Gannon submits that the Commission erred in its treatment of the Hearing Officer’s use of precedents.

Applicant’s position at OCPC hearing and Commission’s findings

[62] Before the Commission, Sergeant Gannon challenged the Hearing Officer’s practice of copying and pasting passages from his own unrelated prior decisions, without attribution, into the Hearing Decisions. As set out in para. 21 of the OCPC Decision, Sergeant Gannon argued that passages copied and pasted into the Misconduct Decision (being two passages that Sergeant Gannon identified in his factum provided to the Commission) contained “facts that were materially different” than the facts of the matter before the Hearing Officer. He argued that when making his decision, the Hearing Officer “relied on those inapplicable facts.” As the Commission stated at para. 21, “[t]he implication is that the Hearing Officer did not put his mind to the issues and did not make a decision based on the evidence” before him.

[63] The Commission rejected those submissions, finding that the Hearing Officer did not make reversible errors in his use of passages from his previous decisions: OCPC Decision, at paras. 25-26, 30. In its analysis, the Commission cited the Supreme Court of Canada in Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, the leading case in this area.

[64] In Cojocaru, the Supreme Court considered the circumstances in which a decision should be set aside because the reasons incorporate materials from other unacknowledged sources. The concern raised in that case was that “the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions”: Cojocaru, at para. 10. At para. 13, the court noted that judges “are sworn to carry out their duties impartially and independently.” At para. 15, the court continued:

Judicial decisions benefit from a presumption of integrity and impartiality - a presumption that the judge has done her job as she is sworn to do. This reflects the fact that the judge is sworn to deliver an impartial verdict between the parties, and serves the policy need for finality in judicial proceedings.

[65] There is no dispute that administrative tribunals, as statutory decision makers, have corresponding duties and obligations. They also have the benefit of the same presumption of integrity and impartiality: see Ontario Provincial Police Commissioner v. MacDonald, 2009 ONCA 805, at paras. 41-44; Mulligan (No. 2) v. Ontario Provincial Police, 2018 ONCPC 5, at para. 30.

[66] In Cojocaru, at para. 22, the Supreme Court set out the framework that applies when a decision is challenged for failure to decide a case in accordance with the decision maker’s sworn duties:

The basic framework for assessing a claim that the judge failed to decide the case independently and impartially may be summarized as follows. The claim is procedural, focussing on whether the litigant's right to an impartial and independent trial of the issues has been violated. There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.

[67] In Cojocaru, at paras. 37-48, the court went on to consider previous caselaw in Canada and elsewhere regarding the permissibility of judicial copying. At para. 42, the court noted that previous cases in Canada “support the view that copying does not in itself establish procedural unfairness, and that the question is whether the copying shows that the trial judge did not consider the evidence and issues and render an impartial, independent decision.” At para. 49, the court concluded:

In summary, courts in Canada and elsewhere have held that copying in reasons for judgment is not, in itself, grounds for setting the judge's decision aside. However, if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.

Applicant’s position on judicial review

[68] Before this court, Sergeant Gannon submits that the Commission erred in its treatment of the Hearing Officer’s use of precedents in the Hearing Decisions. He repeats his position that was before the Commission that the Hearing Officer erred in copying and pasting passages from his own unrelated decisions without attribution into the Hearing Decisions. He disputes the Commission’s conclusion that the passages copied into the Misconduct Decision did not result in significant errors that called into question whether the Hearing Officer made an independent and impartial decision. He also faults the Commission for considering only the passages that were copied into the Misconduct Decision and failing to also consider passages he identified that were copied and pasted into the Penalty Decision.

[69] Applying the principles set out in Cojocaru, Sergeant Gannon submits that a reasonable person, apprised of all the relevant facts, including the Hearing Officer's rampant pattern of copying and pasting passages from his unrelated decisions into the Hearing Decisions, would conclude that the Hearing Officer had not put his mind to the evidence and the issues, and had not made an independent, impartial decision based on the evidence and the law.

Discussion and conclusion

[70] As set out in Cojocaru, it is not improper for a decision maker to include language from applicable precedents, the decision maker’s own previous decisions. Decisions by statutory decision makers have the benefit of a strong presumption of integrity and impartiality. The party seeking to set aside a decision because the reasons incorporated material without attribution bears the burden of showing that that strong presumption is rebutted. Sergeant Gannon has not met that burden.

[71] In the OCPC Decision, at paras. 19-20, the Commission correctly stated the law with respect to judicial copying as outlined in Cojocaru. At paras. 24 and 27, the Commission acknowledged that the Hearing Officer engaged in judicial copying in the Misconduct Decision by using as a precedent two passages from a previous decision he had authored. Both passages were used in the Commission’s reasons relating to the charge of Unlawful or Unnecessary Exercise of Authority. For both passages, the Commission noted that the Hearing Officer used the same or similar language in the Misconduct Decision. It separately considered each passage, before concluding that there were no reversible errors.

[72] The first copied passage included language stating that the complainants “were assaulted and handcuffed. Their injuries were minor, but unnecessary” (emphasis added): OCPC Decision, at para. 23. Sergeant Gannon argued that there was a significant error since, although the complainants were handcuffed, there was no evidence they were “assaulted” or “injured”: OCPC Decision, at para. 24. The Commission rejected that submission, finding that the copying “does not show that the Hearing Officer did not put his mind to the issues or make an independent decision”: OCPC Decision, at para. 25. Among other things, the Commission disputed Sergeant Gannon’s submission that those terms could not be applied to the events involving the complainants, noting that the complainants were “physically restrained and placed in handcuffs”: OCPC Decision, at para. 26. I see no error in the Commission’s analysis.

[73] As explained in para. 27 of the OCPC Decision, the second passage stated that (i) “Unlawful or Unnecessary Exercise of Authority consists principally of two issues: unlawful or unnecessary arrest, and unnecessary force” and (ii) the Hearing Officer considered the cases presented by counsel which, “while not always on point”, he found to be “instructive” (emphasis added). Sergeant Gannon argued that copying was “not insignificant” because the cases he provided were on point and the offence in question covered more than just unlawful or necessary arrest and unnecessary force: OCPC Decision, at para. 28. The Commission rejected that submission, again finding that Sergeant Gannon had not demonstrated that the Hearing Officer had not put his mind to the issues and had not made an independent decision: OCPC Decision, at para. 29. In doing so, the Commission disputed that the quoted passage was inaccurate since (i) the Hearing Officer had used “principally” to qualify his statement about the element of the offence, and (ii) the Hearing Officer was entitled to disagree as to whether the cases cited to him were “entirely on point”. Once again, I see no error in the Commission’s reasoning.

[74] I also see no merit in Sergeant Gannon’s submission that the Commission erred in considering only the passages that were copied into the Misconduct Decision and failing to also consider passages in the Penalty Decision.

[75] Sergeant Gannon’s factum before the Commission on appeal of the Hearing Decisions included submissions relating to passages copied and pasted into both the Hearing Decisions. While the Commission referred in detail to his submissions relating to the passages copied into the Misconduct Decision, it did not also refer to the corresponding submissions related to the Penalty Decision.

[76] I see no error in the Commission’s doing so. Even though the Commission did not refer to the latter submissions, it does not mean that they were not considered and taken into account. As the Supreme Court of Canada stated in Vavilov, at para. 128:

Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfound Nurses, at paras. 25) or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (Newfound Nurses, at paras. 16).

[77] I find that passage to be of particular relevance in this case, given the obvious lack of merit in Sergeant Gannon’s submissions relating to the passages in the Misconduct Decision, which the Commission considered in detail. In that regard, it cannot be said that the Commission failed to “meaningfully grapple with key issues or central arguments raised by the parties” that would “call into question whether the decision maker was actually alert and sensitive to the matter before it”: Vavilov, at para. 128. It is also relevant that the Commission decided to set aside the Penalty Decision on other grounds, providing further justification for not addressing the individual passages in the Penalty Decision that Sergeant Gannon disputed.

[78] Accordingly, I am not satisfied that Sergeant Gannon established that the Commission erred in its treatment of the Hearing Officer’s use of precedents.

C. Treatment of Notice of Hearing

[79] Sergeant Gannon submits that the Commission erred in its treatment of the Notice of Hearing.

Applicant’s position at OCPC hearing and on judicial review

[80] Sergeant Gannon’s submissions on this point relate to the Commission’s reasons for confirming the Hearing Officer’s finding of guilt on Count #1, being the charge of Unlawful or Unnecessary Exercise of Authority. Count #1 of the Notice of Hearing stated:

COUNT #1

IT IS ALLEGED that on December 20, 2019, at approximately 9:30 am, without good and sufficient cause made an unlawful or unnecessary arrest.

The Complainants alleged that they were placed in custody and were realized not to be the intended targets. The Complainants remained in handcuffs and the detention became arbitrary and unlawful.

Your actions may constitute Unlawful or Unnecessary Exercise of Authority contrary to Section 2(1)(g)(i) of the Code of Conduct….

[Emphasis added.]

[81] As he did before the Commission, Sergeant Gannon submits that in finding him guilty of “unlawful or unnecessary arrest” under s. 2(1)(g)(i), the Hearing Officer erred by disregarding the second paragraph of Count #1 of the Notice of Hearing, which provided particulars of the alleged misconduct. The particulars alleged that the complainants “remained in handcuffs” once it was realized that they were not the intended targets, at which time their “detention became arbitrary and unlawful” (emphasis added). Sergeant Gannon notes that unlawful “detention” (as opposed to arrest) is addressed in s. 2(1)(g)(i.1) of the definition of Unlawful or Unnecessary Exercise of Authority, which relates to “an unlawful or unnecessary physical or psychological detention” (emphasis added). Sergeant Gannon was charged (and found guilty) under s. 2(1)(g)(i), not s. 2(1)(g)(i.1). He submits that it was clear from the particulars in the Notice of Hearing that he was being asked to respond to the allegations relating to his role in the complainants’ continuing detention, not their arrest. On that basis, Sergeant says that he was misled by the Notice of Hearing as to the case he had to meet.

[82] Sergeant Gannon also submits that when determining whether his conduct constituted unlawful or unnecessary arrest under s. 2(1)(g)(1), the Hearing Officer was required to focus on whether the impugned conduct fell within the definition of the charge laid: see Mulville and Azaryev and York Regional Police Service, 2017 19496 (ON CPC), at paras. 37-47. He characterizes the Notice of Hearing as the jurisdictional document that set out the particulars of the alleged misconduct. He says that those particulars, which relate to the complainants’ continuing unlawful detention, are not rationally connected to the charge of unlawful or unnecessary arrest. He also argues that the Hearing Officer erred in finding him responsible for the complainants’ arrest, which he says occurred before he arrived on the scene.

[83] The Commission rejected Sergeant Gannon’s submissions, finding the Hearing Officer made “no legal error or unreasonable factual findings” in reaching his conclusions: OCPC Decision, at para. 40. Sergeant Gannon argues that the Commission erred in this finding.

Discussion and conclusion

[84] Sergeant Gannon’s argument that the Commission failed to address the contents of the Notice of Hearing is without merit. The Commission provided transparent and intelligible reasons justifying its decision in paras. 31-40 of the OCPC Decision.

[85] At para. 37, the Commission rejected Sergeant Gannon’s submission that the Notice of Hearing did not inform him of the case to meet:

With respect to the suggestion that the particulars in the Notice of Hearing for Count 1 only alleged detention and were not sufficient notice that the Appellant was being charged with falsely arresting the Appellant, we disagree. The Notice of Hearing specifically alleges that the Appellant “without good and sufficient cause made an unlawful or unnecessary arrest” contrary to s. 2(1)(g)(i) of the Code of Conduct. It then goes on to describe the particulars of that arrest as consisting of the PC remaining in handcuffs whereby the “detention became arbitrary and unlawful”. This was sufficient for the Appellant to know the case to meet.

[86] As set out in para. 37, the Commission acknowledged that one of the purposes of the Notice of Hearing is to give the defending party notice of the case to meet. The Commission held that the Notice of Hearing satisfied that requirement. This finding was reasonable and justified by the Commission’s reasons.

[87] At para. 38, the Commission noted that the Notice of Hearing explicitly stated that Sergeant Gannon was charged with Unlawful or Unnecessary Arrest and referenced s. 2(1)(g)(i) of the Code of Conduct. The particulars in the Notice of Hearing put Sergeant Gannon on notice that the alleged misconduct arose from the act of keeping the complainants in handcuffs after it was realized that they were not the intended targets. There was no suggestion prior to the misconduct hearing that Sergeant Gannon was not aware of the offence he was charged with or the case he had to meet.

[88] In any case, it is not necessary to prove each allegation in the statement of particulars contained in a Notice of Hearing to sustain a finding of misconduct: Susan Mancini and Constable Martin Courage of the Niagara Regional Police Service, 2004 76810 (ON CPC), at para. 98. In the Misconduct Decision, the Hearing Officer found that the requisite elements of the offence were proven as alleged in the Notice of Hearing: (i) Sergeant Gannon, without good and sufficient cause, made an unlawful arrest; (ii) the complainants were placed in custody then realized not to be the intended targets; (iii) the complainants remained in handcuffs after the misidentification became known; and (iv) Sergeant Gannon contravened s. 2(1)(g)(i), of the Code of Conduct. The Commission agreed and provided rational justification for doing so. The Commission’s decision is reasonable.

[89] I also see no error in the Commission’s finding that Sergeant Gannon was guilty of unlawful or unnecessary arrest under s. 2(1)(g)(i) despite not being present when the complainants were initially arrested and placed in handcuffs.

[90] At para. 39, the Commission noted that the Hearing Officer’s finding that Sergeant Gannon was responsible for the complainants’ arrest was based on his not immediately removing the handcuffs and “unarresting” the complainants when their misidentification became known to him and no reasonable or probable grounds existed to continue the arrest. The Hearing Officer’s decision was supported by the evidentiary record. His reasons demonstrate a rational chain of analysis to which the Commission was required to show deference.

[91] In the Misconduct Decision, the Hearing Officer correctly stated the law with respect to the test for lawful arrest as outlined by the Supreme Court of Canada and relied on in OCPC jurisprudence: see R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251; Vogelzang v. Ontario Provincial Police, 2013 ONCPC 2, at para. 72. An officer must have reasonable and probable grounds for an arrest to be lawful. Those grounds must be subjectively held by the officer and must be reasonable: Misconduct Decision, at p. 11.

[92] An arrest is not a momentary act consisting only of taking a person into custody. In R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, the Supreme Court of Canada held that an arrest is a continuing act. It starts with the arrestor taking a person into custody by actions or words, restraining the arrestee from moving anywhere beyond the arrestor’s control. The arrest continues until the person restrained is either released from custody or is remanded into custody: Asante-Mensah, at para. 33. Therefore, multiple officers may be responsible for the arrest between the time the arrestee is taken into custody and the time they are either released or remanded. An officer who takes custody of an arrestee from another officer must have reasonable and probable grounds to continue the arrest: Atkinson v. Niagara Regional Police Service, 2019 ONSC 4589, at para. 97. Therefore, an officer need not be the initial arresting officer to be guilty of unlawful or unnecessary arrest under s. 2(1)(g)(i): see Rose v. Toronto Police Service, 2016 84144 (ON CPC), at paras. 34-49.

[93] The Hearing Officer’s decision set out the basis for his finding that Sergeant Gannon was responsible for the unlawful arrest. While Sergeant Gannon did not apply the handcuffs to the complainants, the arrest was lawful when it was initially made by the ETFU. The Hearing Officer found that the arrest became unlawful when it was clear that the arrested parties were misidentified. At that time, Sergeant Gannon was required to remove the handcuffs from the arrested parties, which he did not do: Misconduct Decision, at p. 14.

[94] In the OCPC Decision, at paras. 39-40, the Commission agreed with the Hearing Officer that Sergeant Gannon should have directed the removal of the complainants’ handcuffs and that the arrest became unlawful when he failed to do so. Therefore, he is responsible for the unlawful arrest. The Commission rejected his position that only the officer who initially places a person under arrest can be responsible for making an unlawful arrest, an arrest being a continuing act. The Commission’s confirmation of the Hearing Officer’s finding that Sergeant Gannon was responsible for the complainant’s unlawful arrest was reasonable and should not be disturbed.

[95] Accordingly, Sergeant Gannon has not established that the Commission erred in its treatment of the Notice of Hearing.

D. “Good and sufficient cause” analysis

[96] Sergeant Gannon submits that the Commission erred in its treatment of the “good and sufficient cause” analysis.

Applicant’s position at OCPC hearing and Commission’s findings

[97] It is common ground that to establish an unlawful or unnecessary arrest under s. 2(1)(g)(i) of the Code of Conduct, the decision maker must be satisfied that the arrest was (i) unlawful or unnecessary, and (ii) made ‘without good and sufficient cause”: OCPC Decision, at para. 41.

[98] As set out at para. 42 of the OCPC Decision, Sergeant Gannon argued before the Commission that the Hearing Officer erred with respect to the second element of the offence:

According to the Appellant the Hearing Officer did not consider whether or not there was proof of “without good and sufficient cause” and that he ignored the evidence that there was “good and sufficient cause” for the arrest. The Appellant argues that the good and sufficient cause arose from the Appellant’s evidence that, even after learning the PC was not the target of the arrest, he had to continue the investigation to ensure the PC and his brother were not associated with the intended target and whether the warrant for the residence should be executed.

[99] As stated at para. 45 of the OCPC Decision, Sergeant Gannon also “points to evidence which might provide a basis for an investigative detention of the PC and argues that the Hearing Officer should have considered that evidence in the circumstances.”

[100] At para. 44, the Commission cited previous OCPC decisions that held that “depending on the totality of the evidence, a separate analysis of whether an officer had good and sufficient cause to make the arrest is not required, where a finding that an arrest has been unlawful or unnecessary has been made”.

[101] At paras. 46-47, the Commission found:

46. In our view, in the circumstances of this case and based on the totality of the evidence, a separate analysis of whether the appellant had good and sufficient cause to make the arrest is not required. Here, there can be no good and sufficient cause to continue an arrest where the subject of the arrest is found to have been mistakenly identified as the person who was intended to be arrested. In other words, in the circumstances of this case, there could be no good and sufficient cause to place under arrest someone the officer knows is not the person that they are intending to arrest.

47. The Hearing Officer found that the PC remained under arrest after the grounds for that arrest were no longer reasonable on any objective or subjective analysis. Therefore, in the circumstances of this case, the failure of the Hearing Officer to conduct a good and sufficient cause analysis is immaterial to the determination that the arrest was unlawful.

[Emphasis added.]

Applicant’s position on judicial review

[102] Sergeant Gannon submits that the Commission erred in upholding the Hearing Officer’s finding that in the circumstances of this case he was not required to do a separate analysis of whether Sergeant Gannon had “good and sufficient cause” to make an arrest.

[103] Sergeant Gannon argues that in addition to his submissions to the Commission referred to in paras. 42 and 45 of the OCPC Decision, he specifically submitted to the Hearing Officer that there was good and sufficient cause for not removing the complainants’ handcuffs. Among other things, Sergeant Gannon said that the evidence provided grounds for concern that if the complainants were released, they would tip off the intended target, which would endanger officer safety, jeopardize a search warrant, and lead to the destruction of evidence. Sergeant Gannon submits that the Hearing Officer was required to address the evidence showing good and sufficient cause in his reasons.

[104] In his submissions before this court, Sergeant Gannon also parses each sentence of paras. 46-47 of the OCPC Decision and argues that they disclose significant errors that justify setting aside the OCPC Decision. The substance of his submissions is that the Commission (i) erred in law by failing to recognize that s. 2(1)(g) by its terms required the Hearing Officer to separately consider the requirement that the arrest be “without sufficient cause”, and (ii) erred by failing to find that the Hearing Officer was required, in the circumstances of this case, to address the evidence before him that showed good and sufficient cause for Sergeant Gannon’s conduct. He submits that failing to address “good and sufficient cause” had the effect of “writing out” that element of the offence and turning s. 2(1)(g)(i) into an absolute liability offence that did not engage the subjective belief of the defending party: see Monaghan v. Toronto (City) Police Service (2005), 2005 11796 (ON SCDC), 198 O.A.C. 59 (Div. Ct.), at paras. 28, 30; Ardiles and Toronto Police Service, 2016 2434 (ON CPC), at paras. 33, 36.

Discussion and conclusion

[105] I conclude that the Commission did not err in finding that the Hearing Officer was not required to conduct a separate analysis of “good and sufficient cause” in the circumstances of this case. The Commission was reasonable in reaching that conclusion.

[106] As previously noted, the Commission correctly held at para. 41 of the OCPC Decision that the Hearing Officer correctly set out the two-part test for misconduct under s. 2(1)(g)(i) of the Code of Conduct. The arrest must be (i) unlawful or unnecessary, and (ii) made without good and sufficient cause.

[107] The Commission previously confirmed the Hearing Officer’s finding that the arrest became unlawful when Sergeant Gannon failed to direct the removal of the misidentified complainants’ handcuffs. At para. 46, the Commission went on to find that the Hearing Officer was not required to conduct a separate analysis of whether there was good and sufficient cause to make the arrest “in the circumstances of this case and based on the totality of the evidence.” Contrary to his submissions, I do not agree that Sergeant Gannon has established that the Commission misstated the law or erred in its application.

[108] The Commission’s conclusion that a separate analysis of good and sufficient cause was not required in all circumstances was consistent with previous OCPC decisions, including Wowchuk & Bernst v. Thunder Bay Police Service, 2013 ONCPC 11. In Wowchuk, at para. 78, the Commission stated:

In the context of the Hearing Officer’s specific findings and conclusions on whether there were “reasonable and probable grounds” for the arrest, and in the absence of any other evidence which might have somehow [have] given the Appellants good and sufficient cause to make the unlawful and unnecessary arrest, a separate and more detailed analysis of “good and sufficient cause” was not required.

[109] The Commission cited para. 78 of Wowchuk with approval in Rose, Arcand, Liburd, Correa, Fuller v. Toronto Police Service, 2018 ONCPC 2 (“Correa OCPC”), at para. 31; aff’d Correa v. Ontario (Civilian Police Commission), 2020 ONSC 133 (Div. Ct.). In Correa OCPC, at para. 30, the Commission recited the two-part test for establishing unlawful or unnecessary arrest under s. 2(1)(g) and noted that the Hearing Officer “did not deal with the second criteria.” After quoting para. 78 of Wowchuk, the Commission went on to find that even though the defending police officer had not made submissions on “good and sufficient cause” before the Hearing Officer, the Commission considered the issue on appeal and declined to interfere with the Hearing Officer’s finding of guilt. The Commission found that “we cannot see any basis for the argument that [the officer] had good and sufficient cause”: Correa OCPC, at para. 34. The Divisional Court dismissed the defendant’s application for judicial review of that decision. In the review decision, at para. 44, the court also cited with approval Wowchuk, at para. 78.

[110] In the OCPC Decision, at paras. 44 and 46, having correctly stated the law, the Commission went on to find that a separate analysis of whether Sergeant Gannon had “good and sufficient cause” to arrest the complainants was not necessary. The Commission found doing so unnecessary “in the circumstances of that case and on the totality of the evidence” in this case “where the subject of the arrest is found to have been mistakenly identified as the person who was intended to be arrested.” In making this finding, the Commission deferred to the Hearing Officer’s findings of fact or mixed fact and law in determining that Sergeant Gannon was guilty of unlawful or unnecessary arrest under s. 2(1)(g) of the Code of Conduct. It was reasonable for the Commission to do so.

[111] I also considered the submission that the Hearing Officer erred in failing to address in his reasons Sergeant Gannon’s submission on good and sufficient cause beyond what is set out in paras. 42 and 45 of the OCPC Decision. This further submission from Sergeant Gannon related to concerns that the complainants would tip off the intended target of the drug investigation if they were released. I do not find that submission persuasive. It is clear that the Commission was aware that there were submissions and evidence before the Hearing Officer relating to good and sufficient cause arising from the complainants’ possible association with the intended target. I am not persuaded that the Hearing Officer’s failure to specifically address those submissions and evidence in his reasons is indicative of reversible error: Vavilov, at para. 128.

[112] Accordingly, I conclude that Sergeant Gannon has not established that the Commission erred in its treatment of the “good and sufficient cause” analysis relating to the finding of Unlawful or Unnecessary Exercise of Authority.

E. Approach to detention

[113] Sergeant Gannon submits that the Commission erred in its treatment of the Hearing Officer’s approach to detention.

Applicant’s position at OCPC hearing and Commission’s findings

[114] Before the Commission, Sergeant Gannon argued that the Hearing Officer erred in law by failing to consider the principle that the lawfulness of arrest is not impacted by the continuation of an investigation. Sergeant Gannon said he was entitled to detain PC for investigation “if he had reasonable grounds to suspect [PC] may be connected to criminal activity and that honest or mistaken belief may be sufficient for an arrest or a detention”: OCPC Decision, at para. 48. In support of that submission, he relied on the Supreme Court of Canada’s decision in Storrey.

[115] The Commission rejected that submission. At paras. 49-51, the Commission explained:

In our view there is no merit to this ground of appeal. With respect to the lawfulness of an arrest and the continuation of an investigation, that depends on the arrest being lawful to begin with. There is no merit to the suggestion that an unlawful arrest might become lawful if the arresting officer continues an investigation. The Appellant’s reference to the holding in R. v. Storrey, 1990 125 (SCC), [1990] 1 SCR 241 that an ongoing investigation following a lawful arrest does not render the initial arrest unlawful is inapposite. In this case, the moment the Appellant was fixed with the knowledge the PC had been misidentified as the target of the warrant, the grounds for the arrest had no basis; it was plain to all involved there had been an unlawful arrest. As of the moment the misidentification became known, there was no good and sufficient cause to continue the arrest itself to further investigate the PC.

The issue before the Hearing Officer was not whether any ongoing detention was or was not arbitrary. This is not the issue the Hearing Officer had to decide based on the Notice of Hearing. It may have been that the further detention of the PC was lawful, given the dynamics of the particular investigation. However, the only issue for the Hearing Officer to decide was whether the continued arrest of the PC, after the point the misidentification became known, was necessary or lawful. The Hearing Officer found it was not necessary or lawful, and in the Commission’s view that was a reasonable finding.

With [respect] to the entitlement to detain the PC for investigation, as noted above, we have determined that the Hearing Officer reasonably concluded that the PC was unlawfully arrested and not detained. Further, this is not a case of honest or mistaken belief leading to an arrest, but a case where it was reasonably found by the Hearing Officer that the Appellant knew the PC was mistakenly identified and had no belief that there were reasonable grounds for arrest at the time, let alone an honest or mistaken one.

Applicant’s position on judicial review

[116] Sergeant Gannon submits that the Commission erred in its approach to detention. He alleges significant errors in virtually every sentence of paras. 49-51 of the OCPC decision.

[117] In support of his position, he further relies on Storrey. In that case, the ultimate issue for determination related to whether it was lawful for the police, under s. 9 of the Charter (right not to be arbitrarily detained or imprisoned), to continue a criminal investigation after the accused was arrested and before he was formally charged with a criminal offence: Storrey, at p. 251. The court stated, at p. 254:

[I]t has long been the rule in Canada and the United Kingdom that the police can continue their investigation subsequent to an arrest.

An arrest which is lawfully made does not become unlawful simply because the police intend to continue their investigation after the arrest. To repeat, in the case at bar the police had reasonable and probable grounds on which to base their decision to arrest the appellant. Further, there was nothing improper about the police intention to continue their investigation of the crime after they had made the arrest. Neither that intention nor the continued investigation made the arrest unlawful. [Emphasis added.]

[118] Sergeant Gannon takes issue with the Commission’s statement, at para. 49 of the OCPC Decision, that the lawfulness of an arrest and continuation of an investigation “depends on the arrest being lawful to begin with.” Sergeant Gannon says there was no issue about whether the ETFU’s arrest of the complainants was lawful. He notes that in the Misconduct Decision, at p. 14, the Hearing Officer found that the ETFU’s arrest of the complainants (believing PC to be the intended target) was “necessary”. Sergeant Gannon argues that this misidentification did not call into question the ETFU’s grounds for arresting the complainants or create an unlawful arrest. He also takes issue with the Commission’s statement, at para. 49, that once the misidentification became known, there was no longer any good or sufficient cause to continue the arrest. Sergeant Gannon says that conclusion does not automatically follow. He argues that it ignores the evidence of real officer safety and evidence destruction concerns relating to the tipping off of the intended target, a violent offender.

[119] Sergeant Gannon also submits that the Commission erred in finding, at para. 50, that the “issue before the Hearing Officer was not whether any ongoing detention was or was not arbitrary.” He says that this statement ignores the particulars stated in the Notice of Hearing, which alleged that the complainants “remained in handcuffs and the detention became arbitrary and unlawful” (emphasis added). He submits that the Commission erred in holding that “[t]his is not the issue the Hearing Officer had to decide based on the Notice of Hearing”. He says that it explicitly was. He also takes issue with the Commission’s statement, at para. 50, that it “may have been that the further detention of the PC was lawful, given the dynamics of the particular investigation.” He argues that this finding itself establishes good and sufficient cause, calling into question the finding that he was guilty of unlawful or unnecessary arrest. He challenges the Commission’s statement, at para. 50, that “the only issue for the Hearing Officer to decide was whether the continued arrest of the PC, after the point the misidentification became known, was necessary or lawful.” He argues that this finding was unreasonable since (i) the particulars in the Notice of Hearing alleged that the complainants “remained in handcuffs and the detention became arbitrary and unlawful”, and (ii) the requirement in s. 2(1)(g)(i) for proof of “without good and sufficient cause” was not addressed.

[120] With respect to para. 51 of the OCPC Decision, Sergeant Gannon challenges, among other things, the Commission’s statement that “this is not a case of honest or mistaken belief leading to an arrest, but a case where it was reasonably found by the Hearing Officer that the Appellant knew the PC was mistakenly identified and had no belief that there were reasonable grounds for arrest at the time, let alone an honest or mistaken one.” Sergeant Gannon submits that the question of whether there was an honest or mistaken belief leading to the complaints’ arrest was irrelevant because there was no issue about that. The Hearing Officer accepted that it was “necessary” for the ETFU officers to arrest the complaints and that there were grounds to do so. Sergeant Gannon says that this was a case of “continued detention” (per the Notice of Hearing particulars), where “good and sufficient cause” was in issue, as to whether there was an honest or mistaken belief as to the grounds to continue to detain the complainants.

Discussion and conclusion

[121] I conclude that the Commission did not err in its approach to detention in finding that Sergeant Gannon was guilty of misconduct under s. 2(1)(g)(i) of the Code of Conduct. The Commission’s approach was reasonable.

[122] I see no error in the OCPC Decision relating to the application of R. v. Storrey. As previously noted, Sergeant Gannon relies on the statement in that case, at p. 254, that an arrest that is “lawfully made does not become unlawful simply because the police intend to continue their investigation after the arrest.” He submits that the Commission made a finding of unlawful and unnecessary arrest that was inconsistent with this principle, given that there was no issue that the ETFU had sufficient grounds to arrest the complainants before Sergeant Gannon arrived on the scene. He says that the Commission erred in concluding that the ETFU’s arrest became unlawful based on Sergeant Gannon’s failure to remove the complainant’s handcuffs to allow him to continue the investigation, which the Supreme Court found not to be unlawful in Storrey, at p. 254.

[123] The flaw in Sergeant Gannon’s reasoning is that the propriety of the ETFU’s arrest of the complainants was not the issue for determination before the Hearing Officer and the Commission. Rather, the issue was whether Sergeant Gannon’s failure to remove the handcuffs constituted an unlawful or unnecessary arrest when he learned that PC was not the intended target. The Commission did not find that the “arrest” became unlawful because Sergeant Gannon continued his investigation, which would have been inconsistent with Storrey, at p. 254. Rather, the Commission reasonably found that the Hearing Officer did not err in concluding that Sergeant Gannon’s failure to remove the handcuffs was the act that gave rise to the finding that he was responsible for their unlawful or unnecessary arrest.

[124] In Storrey, at p. 253, the Supreme Court stated that “an otherwise unlawful arrest cannot be justified on the grounds that it was necessary in order to further the investigation of the crime.” Applying that principle, Sergeant Gannon’s unlawful or unnecessary arrest of the complainants by failing to remove the handcuffs cannot be justified on the grounds that it was necessary to allow him to continue the investigation, as he argues. On that basis, I see no error in the Commission’s statement, at para. 49, that Sergeant Gannon’s reliance on Storrey was “inapposite”.

[125] Neither the Hearing Officer nor the Commission held that the lawfulness of the complainants’ arrest was impacted by the continuation of the investigation. Rather, the arrest became unlawful when no reasonable and probable grounds existed. As the Commission reasonably noted at paras. 49-50, whether continuing an investigation might have been permissible is not relevant. Sergeant Gannon continued the unlawful arrest after it became known PC was not the intended target. That arrest was unlawful. That is the basis for the misconduct conviction.

[126] In the Misconduct Decision, at pp. 12-14, the Hearing Officer rejected Sergeant Gannon’s assertion that he did not arrest the complainants and that he did not remove the handcuffs because they were subject to investigative detention. The Hearing Officer held that Sergeant Gannon continued the arrest. He rejected Sergeant Gannon’s submission that (i) he had to keep the complainants in handcuffs and continue the investigation to make sure they were not associated with the intended target, and (ii) he was still considering executing the search warrant.

[127] The Hearing Officer’s analysis was reasonable. A police officer’s authority, or the lawfulness of their action, must be determined having regard to the police power actually exercised and not by reference to some other police power which may have been, but was not exercised: R. v. Stevenson, 2014 ONCA 842, at paras. 55-57, leave to appeal refused, [2015] S.C.C.A. No. 37; R. v. Whitaker, 2008 BCCA 174, at para. 65, leave to appeal refused, [2008] 3 S.C.R. x (note). The Hearing Officer was required to determine whether the arrest was lawful, not whether Sergeant Gannon may have been entitled to subject the complainants to investigative detention.

[128] The Commission was required to show deference to the Hearing Officer’s application of the law to the facts. There is a clear line of analysis in the Commission’s reasons for upholding the Hearing Officer’s conclusion that Sergeant Gannon was responsible for the unlawful arrest. I conclude that the Commission was reasonable in finding that the Hearing Officer did not err in his analysis and conclusions.

[129] Sergeant Gannon has not established that the Commission erred in its treatment of the Hearing Officer’s approach to detention.

F. Evidence issues

[130] Sergeant Gannon submits that the Commission erred in its treatment of evidence before the Hearing Officer.

Applicant’s position at OCPC hearing and Commission’s findings

[131] Before the Commission, Sergeant Gannon cited numerous examples of evidence that he said the Hearing Officer had ignored or misstated: OCPC Decision, at paras. 53-55. His position was that the Hearing Officer’s failure to consider that evidence or properly address it in the Misconduct Decision affected the hearing’s outcome, including the finding of unlawful or unnecessary arrest. The Commission rejected those submissions, concluding that it was “not satisfied that the errors alleged by the Appellant are ones which in any way impact the Hearing Officer’s Misconduct Decision as a whole or any of the central issues in dispute”: OCPC Decision, at para. 56.

Applicant’s position on judicial review

[132] Before this court, Sergeant Gannon submits that the Commission erred in its treatment of the evidence before the Hearing Officer, alleging that he misstated or ignored relevant evidence. With respect to “ignored” evidence from other involved police officers and from PC during his cross examination, Sergeant Gannon submits that it was readily apparent from his factum and oral argument how that evidence was “related to the central issues in the hearing or what conclusions the Hearing Officer should have drawn from that evidence”, which he says is contrary to the Commission’s finding: OCPC Decision, at para. 53. He submits that the “ignored” evidence was directly relevant to (among other things) (i) why PC was not given his rights to counsel, (ii) why PC was kept in handcuffs, and (iii) why the detention was not arbitrary or unlawful.

[133] With respect to “ignored” evidence relating to the ongoing investigation that occurred after it was determined that PC was not the intended target, Sergeant Gannon also contests the Commission’s statement that it was “unclear how that evidence could have made a difference to the outcome of the hearing or why it was necessary that the Hearing Officer grapple with that evidence”: OCPC Decision, at para. 54. He submits the “misstated” evidence relating to the ongoing investigation was directly relevant to (among other things) (i) whether there was good and sufficient cause, (ii) the particulars in the Notice of Hearing that alleged that the complainants “remained in handcuffs and the detention became arbitrary and unlawful”, and (iii) whether there was clear and convincing evidence of unlawful or unnecessary arrest under Count #1.

[134] With respect to the alleged incidents of “misstated” evidence, Sergeant Gannon takes issue with the Commission’s statement, at para. 55, that “[m]ost of the misstated evidence appears to be with respect to the investigation leading up to the PC’s arrest or the investigation of the events surrounding the arrest which led to the charges against the Appellant.” He submits that it is clear that such misstatements were themselves significant. He also says that there was other misstated evidence related to the reason for the continued detention of PC, which he says is central to whether his actions amounted to misconduct under Count #1. He submits that there are so many errors relating to the evidence that the Hearing Officer’s reasons could not be described as reasonable, transparent, or intelligible.

Discussion and conclusion

[135] I conclude that the Commission did not err in its treatment of evidence before the Hearing Officer.

[136] At para. 52 of the OCPC Decision, the Commission correctly stated that the Hearing Officer is not required to “refer to, let alone analyze and weigh, every piece of evidence in considering the key issues in dispute”: Siriska v. Ontario Provincial Police, 2022 ONCPC 8, at para. 32. That statement is consistent with instruction from appellate courts that a decision maker is not required to grapple with, or even acknowledge, every disputed fact or issue extraneous to its decision: Wells v. Cornwall (City) Police Service, 2022 ONSC 5460 (Div. Ct.), at para. 8; Vavilov, at para. 128.

[137] At paras. 53-56, the Commission provided cogent reasons relating to whether it was necessary for the Hearing Officer to “grapple with” the evidence allegedly ignored. In short, the Commission determined that there was no need to do so because the evidence could not have made a difference to the outcome of the hearing. As well, contrary to Sergeant Gannon’s submissions, the Hearing Officer addressed his evidence regarding the reason for his continued detention of the complainants.

[138] In his evidence, Sergeant Gannon gave various explanations for keeping the complainants in handcuffs. These reasons included that (i) he was continuing to investigate, (ii) he was still considering executing the search warrant after the misidentification became known, and (iii) by releasing the complainants, he had officer safety concerns. The Hearing Officer’s reasons demonstrate that he rejected Sergeant Gannon’s evidence on this point. In the Misconduct Decision, at p. 14, the Hearing Officer held that PC was twice misidentified as the intended target (once during surveillance and once on the day of his arrest). Based on the misidentification, the Hearing Officer found that the grounds to execute the search warrant no longer existed. The same was true of grounds for the arrest. Therefore, the Hearing Officer concluded that Sergeant Gannon was required to remove the handcuffs from the complainants. The Commission agreed with the Hearing Officer’s analysis. As indicated above, the Commission’s reasons for doing so justify that decision in an intelligible manner: OCPC Decision, at para. 49.

[139] The Hearing Officer’s findings with respect to the central issues were supported by the evidentiary record. In his decision, the Hearing Officer identified the essential elements of the offence and found that the offence had been proven based on the evidentiary record before him. The evidence that Sergeant Gannon points to does not contradict those findings or render the decision as a whole unreasonable. The Commission was required to show significant deference to the Hearing Officer’s findings of fact. The Commission did not err in doing so.

[140] I conclude that Sergeant Gannon has not established that the Commission erred in its treatment of evidence before the Hearing Officer.

G. New hearing for Neglect of Duty

[141] Sergeant Gannon submits that the Commission erred in ordering a new hearing relating to the charge of Neglect of Duty.

Commission’s findings in OCPC Decision

[142] In the Misconduct Decision, the Hearing Officer found it was Sergeant Gannon’s responsibility to inform PC of his rights to counsel upon his arrest. Since Sergeant Gannon did not do so, the Hearing Officer found him guilty of Neglect of Duty under s. 2(1)(c)(i) of the Code of Conduct, as alleged in Count #2 of the Notice of Hearing. In the OCPC Decision, the Commission allowed the appeal of that conviction. The Commission revoked the finding of Neglect of Duty (together with the Penalty Decision). The Commission ordered a new hearing relating to the charge of Neglect of Duty and the penalty before a new hearing officer: OCPC Decision, at paras. 74-75.

[143] In the OCPC Decision, at para. 67, the Commission set out the test for establishing Neglect of Duty, which requires that:

“[T]he Hearing Officer must be satisfied on clear and convincing evidence that the Appellant was required to perform a duty, that without lawful excuse the duty was either wilfully not performed or was not performed diligently or promptly. The negligence must be more than a mere performance issue to amount to misconduct…” [Citations omitted]

[144] In the OCPC Decision, at para. 68, the Commission found that the Hearing Officer did not set out the test for Neglect of Duty, did not appear to turn his mind to the elements of the test, and did not make findings with respect to those elements. The Commission found that in doing so the Hearing Officer made an error of law.

[145] At para. 69, the Commission also found that even though the Hearing Officer found that Sergeant Gannon had a duty to give the rights to counsel to the complainants, “he relied on his own experience as an officer for another police service when that experience was directly contradicted by the evidence at the hearing.” At para. 63, the Commission found that a “review of the evidence presented at the hearing demonstrates that the [ETFU] had the responsibility, as the arresting team, to give the rights to counsel and that the Appellant was not informed that had not been done when he arrived at the scene.” At para. 64, the Commission also noted Sergeant Gannon’s evidence at the hearing that he did not give rights to counsel because he believed that the ETFU had already done so.

[146] The Commission concluded that “the Hearing Officer erred in law when he applied his own experience rather than the uncontradicted evidence at the hearing when determining whether the duty to give rights to counsel rested with the Appellant rather than the [ETFU]”: OCPC Decision, at para. 69. The Commission also found that “the Hearing Officer provides no analysis of whether the failure of the Appellant to give rights to counsel was without lawful excuse, or whether it amounted to more than a mere performance issue” and he “failed to make a finding with respect to that part of the test”: OCPC Decision, at para. 70. The Commission concluded that the Hearing Officer erred in law by failing to give adequate reasons for the finding of Neglect of Duty.

Applicant’s position on judicial review

[147] Sergeant Gannon submits that the Commission correctly revoked the finding of guilt of Neglect of Duty but erred in ordering a new hearing on the charge. He asks the court to set aside the order for a new hearing and instead enter an acquittal on that charge.

[148] He argues that in light of the Commission’s findings that led to the revocation, acquittal is inevitable and remitting the matter for a new hearing would serve no useful purpose. He also notes that the Commission failed to consider (among other things) that this matter has been ongoing since 2019. He submits a new hearing would not be an effective use of time or public resources given the evidence and the Commission’s findings. The authorities that Sergeant Gannon cites in support of his submissions include Vavilov, at para. 142; R. v. Strongeagle, 2023 ABCA 5, at para. 11; and Monaghan, at para. 30.

Discussion and conclusion

[149] I do not agree that there are grounds in this case that would justify interfering with Commission’s order for a new hearing on the charge of Neglect of Duty.

[150] In Vavilov, at paras. 139-42, the Supreme Court addressed one aspect of a court’s remedial discretion on judicial review. The question the court considered was “whether a court that quashes an unreasonable decision should exercise its discretion to remit the matter to the decision maker for reconsideration with the benefit of the court’s reasons”: Vavilov, at para. 139. At para. 140, the court stated that the factors to be considered include “the recognition by the reviewing court that the legislature has entrusted the matter to the administrative decision maker, and not to the court”, but also recognizing that “the question of remedy must also be guided by concerns related to the proper administration of the justice system, the need to ensure access to justice and ‘the goal of expedient and cost-efficient decision making, which often motivates the creation of specialized administrative tribunals in the first place’….” (citation omitted).

[151] At paras. 141-42, the court continued:

141. Giving effect to these principles in the remedial context means 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. In reconsidering its decision, the decision maker may arrive at the same, or a different, outcome….

142. However, while courts should, as a general rule, respect the legislature's intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended…. An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining 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…. Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court's discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed….

[Citations omitted.] [Emphasis added.]

[152] I agree with Sergeant Gannon that when an appellate administrative tribunal decides to set aside a subordinate body’s decision (in this case after a fulsome process that provided the defending party, represented by counsel, with the opportunity to defend himself before the subordinate body), the principles set out in Vavilov provide useful guidance as to whether the remedy should be to remit the matter to the subordinate body or for the appellate tribunal to decide the matter itself. Subject to any statutory limitations, whether the appellate tribunal remits or decides the matter itself is in the appellate tribunal’s discretion, weighing the considerations referred to in Vavilov. However, consistent with Vavilov, at para. 141, it is reasonable to conclude that it would “most often be appropriate to remit the matter to the decision maker to have it reconsider the decision” except in the “limited” circumstances referred to in para. 142.

[153] I am not satisfied that Sergeant Gannon has demonstrated that the Commission erred in ordering that the charge of Neglect of Duty be remitted for a new hearing.

[154] The basis of the charge of Neglect of Duty set out in Count #2 of the Notice of Hearing was the allegation that the complainants were not informed of their rights to counsel under the Charter. Police officers are “duty bound” to inform a person of their rights when a person “has been arrested or detained.” As previously noted, the Hearing Officer found that Sergeant Gannon was guilty of Neglect of Duty on the basis that (i) he had a duty to give rights to counsel when the continuing arrest of the complainants became unlawful as a result of his failure to direct removal of the handcuffs when he became aware that PC was not the intended target, and (ii) he did not at that point give the complainants their rights to counsel.

[155] The Commission set aside the finding of Neglect of Duty, but did not make a finding that Sergeant Gannon had no duty to give rights to counsel to the complainants. Rather, the Commission concluded that the finding of Neglect of Duty was based on (i) the Hearing Officer’s failure to turn his mind to and address the elements of the offence, and (ii) his reliance on his own experience (to the exclusion of contrary hearing evidence) relating to whether Sergeant Gannon was able to rely on his belief that the ETFU had given rights to counsel when the complainants were initially detained.

[156] In all the circumstances, I am not satisfied that Sergeant Gannon has demonstrated that it was not open to the Hearing Officer to find Sergeant Gannon guilty of Neglect of Duty by properly applying the law to findings of fact based on the evidence before the Hearing Officer. Therefore, contrary to Sergeant Gannon’s submissions, I am not satisfied that an acquittal at a new hearing on the charge of Neglect of Duty would be inevitable or that remitting the matter to a new hearing officer would serve no useful purpose.

[157] In making that determination, I have considered Sergeant Gannon’s other submissions, including the resulting allocation of public resources and dislocation arising from the fact that this matter has been outstanding since 2019, with a multi-day hearing occurring in 2023 and appeal hearing in 2024. I do not consider those factors to tip the balance in favour of interfering with the Commission’s remedial discretion on judicial review. However, I recognize that those considerations may be relevant to the prosecutorial decision as to whether to continue to pursue the charge of Neglect of Duty, given that this court is declining to interfere with the Commission’s confirmation of the finding of guilt on the charge of Unnecessary or Unlawful Exercise of Duty.

[158] I also considered the other cases that Sergeant Gannon relied on but found them of little assistance. The exercise contemplated in Vavilov involves weighing the relevant factors, which vary from case to case. Taking into account the relevant factors, I do not consider the current matter to be one of the limited universe of cases where an acquittal on judicial review is warranted.

V. Disposition

[159] For the above reasons, I would dismiss the judicial review application. As the parties agreed, there will be no costs order.

___________________________ Lococo J.

___________________________ Firestone R.S.J.

___________________________ Shore J.

Date: February 12, 2026

[^1]: Canadian Charter of Rights and Freedoms, 1982, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.