COURT FILE NO.: FC-20-621
DATE: 2021/10/06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JESSE HEWITT, Applicant
-and-
KRISTINA DOYLE, Respondent
BEFORE: D. Summers J.
COUNSEL: Yanik S. Guilbault, for the Applicant
Katherine A. Cooligan and Brad Yaegar, for the Respondent
HEARD: September 28, 2021
Ruling on a motion at the opening of trial
Overview
[1] The respondent mother (Ms. Doyle) brings this motion at the opening of trial asking the court to determine the scope of evidence that she can adduce at trial considering without offending provisions under Part V of the Police Services Act [^1] that render certain witnesses non-compellable, certain documents inadmissible, and certain information privileged. More specifically, she wants to know whether certain facts will be admissible at trial as they relate to Mr. Hewitt’s misconduct as an Ottawa police officer, the complaint made against him, the charges laid, his ultimate guilty plea, the decision rendered and the penalty sought.
[2] The motion is in the context of the application commenced by the father (Mr. Hewitt) under the Divorce Act[^2]. The primary issues in dispute are decision-making, the parenting schedule, and Ms. Doyle’s request to relocate with the children. The case is high conflict.
[3] In her factum, Ms. Doyle framed the issue in this way:
(a) Are the following facts admissible at trial considering the provisions of the Police Services Act?
(i) the fact that Mr. Hewitt was charged under the Police Services Act, and the nature of those charges;
(ii) the facts underlying those charges, as admitted by Mr. Hewitt in the context of the Police Services Act hearing;
(iii) the fact that Mr. Hewitt pled guilty to all 10 charges against him, and that the Ottawa Police Services sought his termination as a result.
[4] Mr. Hewitt takes the position that he is not required to answer any questions that pertain to any aspect of his misconduct or the resulting disciplinary proceedings. He says the provisions in Part V of PSA[^3] create all encompassing and absolute privilege around the use of related documents and information in a civil proceeding.
[5] Ms. Doyle also asks the court to determine whether the character reference letters found in Mr. Hewitt’s Book of Documents at tabs D through U of Volume 4, are admissible at trial under the PSA[^4]. Mr. Hewitt agrees that he will not seek to introduce any letters speaking to his character that were prepared for purposes of his disciplinary hearing. He identifies those documents as those found at tabs F and H through U. Accordingly, I make that order. Mr. Hewitt says the remaining letters at tabs D, E and G, were prepared for purposes of this proceeding, in particular, the motion on parenting issues heard in May 2020 and, therefore, do not offend the provisions of the PSA.[^5] Having reviewed those documents, I find the letter at tab G is problematic. It bears an August 2020 date and speaks of Mr. Hewitt in a professional capacity only. I conclude that letter was prepared for purposes of the disciplinary process under the PSA[^6] and is not admissible at trial. To the extent that the admissibility of the remaining two letters may attract objection, it is a matter best addressed in the normal course at trial.
[6] In answer to the first question posed by Ms. Doyle above, I find no reason to conclude that the charges against Mr. Hewitt are not provable facts at trial, however, neither Mr. Hewitt nor any other person involved in the disciplinary process can be compelled to testify to that event or to the nature of the charges laid. Moreover, the charging documents are not admissible.
[7] With respect to the second question, I conclude that Ms. Doyle may question Mr. Hewitt and otherwise lead evidence about the behaviour and circumstances leading up to the complaint against him but not with respect to the admissions made at the hearing. As with the first question above, I find no reason to conclude that the fact of the admission itself is not a provable and admissible fact at trial provided the proffered evidence does not offend the limiting provisions of the PSA[^7] or any other rule of evidence.
[8] My answer to the third query is the same as given to the first. The guilty plea and penalty sought may be provable facts at trial, but no person involved in the disciplinary process including Mr. Hewitt can be compelled to testify nor can any related documents be admitted.
[9] These are my reasons.
Contextual Facts
[10] Mr. Hewitt and Ms. Doyle separated on February 25, 2020 after a seven-year marriage and a ten-year cohabitation. They have two young children, ages three years and one year. They currently reside with their mother and have parenting time with their father three times a week.
[11] Both parties are police officers with the Ottawa Police Service.
[12] Mr. Hewitt commenced this application in April 2020.
[13] In May 2020, following complaints of misconduct, the Ottawa Police Service suspended Mr. Hewitt from duty. Charges were laid in September 2020 and the hearing was held in June 2021. On the last day of the hearing, Mr. Hewitt signed an Agreed Statement of Facts and pled guilty to all charges. Sentencing was scheduled for November 2021.
[14] In August 2021, Mr. Hewitt resigned, effective October 15, 2021. That act brought the disciplinary process to an end.
The Legal Framework
[15] The parties agree that ss. 83(7), 83(8), and 95 (formerly ss. 69(8), 69(9) and 80) as found in Part V of the PSA are the provisions relevant to this motion. They read as follows:
Non-compellability
s. 83(7) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties under this Part, except at a hearing held under this Part.
Inadmissibility of documents
s. 83(8) No document prepared as the result of a complaint made under this Part is admissible in a civil proceeding, except at a hearing held under this Part.
Confidentiality
s. 95 Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,
(a) as may be required in connection with the administration of this Act and the regulations;
(b) to his or her counsel;
(c) as may be required for law enforcement purposes; or
(d) with the consent of the person, if any, to whom the information relates.
[16] In Rizzo & Rizzo Shoes Ltd. (Re)[^8], the Supreme Court of Canada set out the correct approach to statutory interpretation. It said:
21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, 1997 318 (SCC), [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., 1997 377 (SCC), [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, 1996 186 (SCC), [1996] 3 S.C.R. 550; Friesen v. Canada, 1995 62 (SCC), [1995] 3 S.C.R. 103.
[17] The Ontario Court of Appeal decision in M.F. v. Sutherland, [^9] is often cited for the principle that professional disciplinary proceedings and civil proceedings should be kept separate. That case concerned the application of s. 36(3) of the Regulated Health Professions Act[^10] that provides that a document prepared for a professional discipline proceeding against a doctor is inadmissible in a civil action. Although similar in purpose, the language of the section is more precise than the language used in the PSA.
[18] Laskin J.A., writing for the majority, said,
The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action.
Section 36(3) is one of a number of legislative provisions whose broad objective is to keep College proceedings and civil proceedings separate. Section 36(1) provides for the confidentiality of information that comes to the knowledge of College employees; and s. 36(2) provides that College employees cannot be compelled to testify in civil proceedings about matters that come to their knowledge in the course of their duties.
In my view, the purpose of s. 36(3) is to prevent not just patients but all participants in College proceedings from using documents generated for those proceedings in civil proceedings, in short to keep the two proceedings separate.[^11]
[19] In Andrushko v. Ontario,[^12] the Divisional Court set aside the order of the motion judge directing that the officer’s personnel file be produced to the court so the court could, in turn, review the file and determine what information from the file documents could be provided to the plaintiff in the civil action for damages. In making that order, the motion judge concluded that while certain documents were inadmissible under s. 69(9) of the PSA[^13], the prohibition did not extend to the information contained in the inadmissible documents. On appeal, the Divisional Court found that the motion judge had not read the provision in context and said when ss. 69(8), (9) and (10) were read together with s. 80, (now ss. 83(7), 83(8), and 95), it was clear that confidentiality extended to the use of information as well as documents in civil proceedings. It was held that sections 69(8) and 80 “combine to create a statutory privilege for information acquired in the course of duty under Part V unless captured by one of the exceptions set out in s. 80 itself.”[^14] The court was clear. The prohibition against the communication of information obtained in the course of a person’s duties under Part V is complete, but for the statutory exceptions.
[20] The decision in Hume v. Ghadban,[^15] is authority for the proposition that there remains an important distinction between documents and information insofar as documents are inadmissible whereas information is merely privileged and subject to exceptions. In relation to the consent exception under s. 95(d), the court points out that Andrushko[^16] did not address the question of whether consent can be implied and holds that it can be. The court in Hume[^17] concluded that waiver under the PSA[^18] can be implied and deemed to be consent under s. 95(d) when a party relies on information from the disciplinary process to defend themselves in a civil proceeding that is privileged but does not consist of inadmissible documents, such as the subject officer did in that case.
Analysis
[21] This motion turns on the interpretation of the PSA[^19] provisions identified above. The answer, in turn, will guide the scope of the evidence that Ms. Doyle can present in this trial in relation to Mr. Hewitt’s professional misconduct and disciplinary proceedings. It is a decision that I anticipate revisiting in the specific circumstances of this trial, as they arise.
[22] Ms. Doyle asks the court to pay close attention to the language in each particular section in issue, adopt a common-sense approach, and give the words their ordinary meaning in the overall context of the Act, as required by Rizzo[^20]. She submits the PSA[^21] does not operate to prohibit her from questioning Mr. Hewitt about the events leading up to and underlying the disciplinary action and the fact of the outcome nor, she says, do they prevent her from seeking to prove in this application, the same facts that were established in the PSA[^22] proceeding. She asserts that much evidence came to light in the disciplinary proceeding that is relevant to this case – evidence about Mr. Hewitt’s character and judgment that she says is relevant to his abilities as a parent and this court should have that evidence before it when considering the best interest of the children. Ms. Doyle says it would be unjust if Mr. Hewitt can introduce evidence of good character, as he seeks to do, while restricting her ability to bring forth evidence to the contrary simply because it was also evidence in the disciplinary proceeding. She submits that interpreting the Act in that manner would allow Mr. Hewitt to insulate himself from material evidence. Moreover, Ms. Doyle says credibility is a significant issue in this trial. Each party has a very different version of events including their parenting history, their respective abilities to meet the best interest of the children, and the circumstances relating to the relocation issue.
[23] Mr. Hewitt sees the PSA[^23] differently. He says the law is settled and the answer is clear. No further interpretation is needed. He argues that the confidentiality provisions are absolute and all encompassing, that all discussion of his conduct, the complaint, the process, and the outcome, is out of bounds in any civil proceeding including this application even though it does not arise out of the same facts as the disciplinary proceeding. In short, he says that he cannot be compelled to answer any question, produce any document, or provide any information whatsoever that is in any way connected to the disciplinary process.
[24] Moreover, Mr. Hewitt contends that his conduct as a police officer is not relevant to his ability to meet the needs of his children. He says such evidence only speaks to his behaviour in the high stress environment of policing. I disagree and consider that, in general, evidence of a caregiver’s character and judgment is relevant to parenting issues and consideration of a child’s best interests.
[25] As I understand Ms. Doyle’s position, she agrees that Andrushko[^24] settled the issue that the statutory privilege given to documents under the PSA extends to information in those documents. It is the scope of the privilege that she seeks to flesh out for purposes of this proceeding. Put another way, she questions at what point in the discipline process is privilege engaged and to whom does it apply? Does it protect the officer who is the subject of the complaint or only third parties such as investigators who acquire information in the course of their duties? Does the privilege capture the officer’s conduct leading up to the complaint and the complaint itself? What Ms. Doyle wants is to ask questions of Mr. Hewitt about the fact of the misconduct, the fact of the complaint itself, the fact of the disciplinary proceeding and the outcome, such that this court can draw its own conclusions.
Section 87(3) – Non-compellability
[26] Ms. Doyle contends that this section and the prohibition against compelling testimony in civil proceedings does not apply to Mr. Hewitt. She submits that it applies only to third parties involved in the process such as investigators and others who acquire information in the course of their duties under the PSA[^25] and not Mr. Hewitt. She says if it were otherwise, the section would operate to insulate police officers from any civil law consequences related to their professional misconduct such as liability in tort or, as is the case here, evidence of misconduct that may impact parenting issues. She says it cannot have been the legislature’s intention to provide officers with civil immunity from their actions.
[27] I turn to the language of s. 83(7) that opens with the words “No person….”. In my view, the ordinary meaning of that phrase captures everyone, all unspecified individuals with information acquired under Part V – including the subject officer. It is all-encompassing. Moreover, I am satisfied that to conclude otherwise would be contrary to the purpose of those sections in the PSA[^26], that is to keep disciplinary and civil proceedings separate. In that regard, I do not accept that the protections have the effect of clothing officers with immunity from the civil law consequences of their actions. I have not been directed to any authority that would support that submission nor do I read the section as shielding the officer from evidence of what may be provable facts in a civil proceeding. The protections afforded relate to the source of the evidence insofar as it cannot come from a person who acquired it in the performance of his or her duties under Part V. The provisions do not otherwise proscribe evidence of events or circumstances that pre-date or give rise to the disciplinary process such as evidence of the alleged misconduct itself. In other words, there is no immunity, in my view, when there is scope to prove facts necessary to a civil claim without reliance on evidence produced in another proceeding. Accordingly, I find that Ms. Doyle can adduce evidence from Mr. Hewitt, or others, with respect to the events leading up to the complaint, in an effort to establish facts in this proceeding from which the court may draw its own conclusion.
Section 83(8) – Inadmissibility of Documents
[28] Here, Ms. Doyle submits that the section does not capture the complaint itself when it says that no document prepared as the result of a complaint [emphasis added] made under this Part is admissible in a civil proceeding whereas Mr. Hewitt contends that no document in any way related to the disciplinary proceeding is admissible. In my view, the complaint, by definition, must precede documents that are prepared as a result of it indicating that the complaint document falls outside the statutory protection, however, that conclusion risks putting s. 83(8) at odds with ss. 83(7) above and 95 discussed below as both protect “all information obtained by a person in the course of his or her duties”. Reconciling the sections in light of the purpose of the provisions, leads me to conclude, as Laskin J.A. suggested in M.F.[^27], that there may be a distinction between the fact that there was a complaint made to trigger the disciplinary process and the written complaint itself. The former may be provable at trial, but the written complaint itself is not admissible at trial. Only in that way is s. 83(8) consistent with ss. 83(7) and 95 and the protections afforded there to all information obtained in the course of a person’s duties under Part V.
Section 95 – Confidentiality
[29] Ms. Doyle also questions the scope of this section. She asks whether the duty of secrecy imposed on every person engaged in the administration of Part V with respect to all information obtained in the course of their duties under Part V, operates to protect the officer who is the subject of the complaint from answering any questions whatsoever related to the disciplinary proceeding or does it only apply to third parties such as investigators, staff and others who play a role in administering the process? Ms. Doyle submits the privilege belongs only to the latter. She says if Mr. Hewitt’s interpretation is correct, and the privilege applies to him, she reiterates the argument above – that the result would be to insulate the officer against questions directed to what may be the civil consequences for the same actions underlying the disciplinary process. For reasons already given, I disagree.
[30] Further, Ms. Doyle argues that the obligation of secrecy under s. 95 with respect to all information obtained in the course of duties under Part V of the PSA[^28] cannot be reconciled with the provisions in the Act that stipulate hearings are open to the public[^29] and require that decisions be made public.[^30] She says the tension between confidentiality and openness creates a circle that cannot be squared. I disagree. In my view, the provisions are designed to deliver balance between what is the open court principle in matters of importance between the public and the police force responsible for protecting it and safeguarding complainants and police officers against the use of evidence in a civil action that was obtained in the course of a Part V disciplinary proceeding. In this way, the PSA[^31] ensures the purpose of the Act is met – that is to encourage the reporting of complaints of professional misconduct and ensure that those complaints are fully investigated and fairly decided without any participant in the proceeding fearing that evidence in the disciplinary proceeding can be used in a civil action. In my opinion, there is no conflict between limiting the subsequent use of evidence and statutory provisions that require open hearings and the publication of decisions. The purpose of each is different. The privilege speaks to how the evidence cannot be used. That is not inconsistent with the public knowing what the evidence is.
[31] Ms. Doyle further argues that the admissibility and confidentiality provisions of the PSA[^32] were intended to apply to civil cases arising out of the same facts or parallel proceedings, if you will, but not unrelated civil proceedings such as this divorce application. In that regard, she says this situation is unique. I do not disagree with her characterization insofar as this proceeding does not involve the same parties or facts. Nor is her goal one of civil liability but rather to put evidence before this court as she says it relates to the best interests of the children. Nevertheless, this is a civil proceeding captured by the language of Part V, the purpose of which remains the same. It is not for this court to parse out sub-categories of civil proceedings to which the protections do not apply.
[32] Ms. Doyle makes two further arguments in the alternative. The first is that Mr. Hewitt waived privilege. The second turns on the doctrine of paramountcy. She says that to the extent that the provisions of the PSA[^33] conflict with the provisions of the Divorce Act[^34] the doctrine of paramountcy prevails to prefer the Divorce Act[^35]as federal legislation over provincial legislation.
[33] First, with respect to the privilege over information set forth in s. 95, Ms. Doyle says Mr. Hewitt, by his own actions, waived privilege under subsection (d). She relies on his statements to the custody and access assessor to argue implied waiver and referred me to three paragraphs in an assessment report released in May 2021. The first two paragraphs are found on page 33. They read:
Mr. Hewitt suspected that Ms. Doyle was involved in leaking the investigation to the media, which led to his suspension as well as harassment emails and calls. He indicated that the charges were unfounded, and he expected the charges to be dropped. The hearing was scheduled for June 2021. Mr. Hewitt was confident that he would return to work. In the event that he would not be able to return to policing, he indicated that he could potentially work in surveillance for the Canadian government.
Mr. Hewitt responded to a number of allegations made about him at work, including that he negatively impacted the environment and morale of the platoon he was in. He stated that these statements were made by people who were biased and who were close to Ms. Doyle. He denies all those allegations and stated that the organization involves complex “cliques” who speak negatively about each other. He also stated that instances of use of unnecessary force were unfounded and that his actions were taken out of context. Mr. Hewitt reiterated that he has been thanked and commended by civilians and high-ranking officers.
[34] The next passage in the report that Ms. Doyle refers to is found on page 66. It reads:
Mr. Hewitt is currently undergoing a workplace investigation. Given the investigation is underway, no solid conclusions can be drawn from the charge against him. Ms. Doyle and Mr. Hewitt have very different predictions of the outcome of this investigation. There are both negative and positive reports of Mr. Hewitt’s character at work, with most of the ones being provided during this assessment as being positive. At this time, with the information available, there are no indications of a link between this investigation and his parenting capacity.
[35] Ms. Doyle says it was open to Mr. Hewitt to not comment on any aspect of the disciplinary process, however, he instead chose to assert his innocence and by doing so, waived privilege. Mr. Hewitt denies that he waived privilege and distinguishes his actions from those of the officer in Hume[^36] who put specific and otherwise confidential information about the hearing officer’s not guilty finding in front of the court in the civil proceeding. That was not so here. Mr. Hewitt says doing nothing more than asserting his innocence cannot constitute implied waiver. I agree. He did not reveal or purport to rely on any specific confidential information or documents from the disciplinary proceeding. In the circumstances of this case, considering the provisions of the PSA[^37] in issue, I cannot conclude that Mr. Hewitt waived privilege.
[36] On the issue of paramountcy, Ms. Doyle submits that the Divorce Act requires this court to consider all factors related to the circumstances of the child including those set out under s. 16(3)[^38] when determining the best interests of the child that must, in turn, give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. In particular, she points to s. 16(3)(k) that speaks to consideration of “any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.” Ms. Doyle submits that the language in (k) is sufficiently broad to capture administrative proceedings such as those brought under the PSA[^39] and further emphasizes that the factors listed under (3) are not exhaustive. As I understand her position, she contends that the court cannot discharge its obligation under s. 16 if the provisions of the PSA[^40] serve to prevent it from hearing certain evidence and to the extent of that conflict, this court should declare those provisions to be of no force and effect in this proceeding. In my view, the two Acts are not in conflict and I decline to make the order sought. Simply because one statute deems certain evidence to be privileged and inadmissible does not put it in conflict with another statute. Without question, the Divorce Act requires a thorough and comprehensive approach to determining the child’s best interests, however, that determination must be based on admissible evidence. The requirement to consider all relevant factors does not override the rules of evidence or undermine the application of the PSA[^41] in the context of a divorce proceeding when the Divorce Act[^42] does not purport to occupy the same legislative area.
Costs
[37] Costs of the motion will be addressed in the cause.
Justice D. Summers
Date: October 6, 2021
COURT FILE NO.: FC-20-621
DATE: 2021/10/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: JESSE HEWITT, Applicant
-and-
KRISTINA DOYLE, Respondent
BEFORE: D. Summers J.
COUNSEL: Yanik S. Guilbault, for the Applicant
Katherine A. Cooligan, for the Respondent
RULING on a motion at the opening of trial
D. SUMMERS J.
Released: October 6, 2021
[^1]: R.S.O. c. P.15. [^2]: R.S.C. 1985, c. 3 (2nd Supp.). [^3]: Supra at note 1. [^4]: Ibid. [^5]: Ibid. [^6]: Ibid. [^7]: Ibid. [^8]: 1998 837 (SCC), [1998] S.C.J. No. 2 (S.C.C). [^9]: 2000 5761 (ON CA). [^10]: S.O. 1991, c. 18. [^11]: Ibid, at para. 29, 31 and 36. [^12]: [2011] O.J. No. 3693 (Div. Ct.). [^13]: Supra, at note 1. [^14]: Supra, at note 12, para. 24. [^15]: 2011 ONSC 6396. [^16]: Supra, at note 12. [^17]: Supra, at note 15. [^18]: Supra, at note 1. [^19]: Supra, at note 1. [^20]: Supra, at note 8. [^21]: Supra, at note 1. [^22]: Ibid. [^23]: Ibid. [^24]: Supra, at note 12. [^25]: Supra, note 1. [^26]: Ibid. [^27]: Supra, at note 9, para. 45. [^28]: Supra, at note 1. [^29]: Supra, at note 2, s. 83; and Statutory Powers Procedure Act R.S.O. 1990, c. S.22, s. 9. [^30]: Supra note 2, s. 86. [^31]: Supra, at note 1. [^32]: Ibid. [^33]: Ibid. [^34]: Supra, at note 2. [^35]: Ibid. [^36]: Supra, at note 15. [^37]: Supra, at note 1. [^38]: Supra, at note 2. [^39]: Supra, at note 1. [^40]: Ibid. [^41]: Ibid. [^42]: Supra, note 2.