Counsel:
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W. Michael Temple, Q.C., for the applicant. Steven M. Boorne, for the Commissioner of the Ontario Provincial Police. Dennis W. Brown, Q.C., for the Ontario Civilian Commission on Police Services. |
The judgment of the Court was delivered by
O'DRISCOLL J.:—
I. Nature of Proceedings
¶ 1 The Applicant, a police officer employed by the Ontario Provincial Police (OPP) and stationed at the Cobourg detachment, applies for judicial review and seeks an order quashing the decision, dated August 31, 1998, of the Ontario Civilian Commission on Police Services (Commission). The decision under review directed the Commissioner of the OPP to issue a Notice of Hearing to P.C. Browne under s. 70(11) of the Police Services Act, R.S.O. 1990, c. P.15, as amended (the Act). The Applicant also seeks an order prohibiting the Commissioner of the OPP from proceeding with the issuance of a Notice of Hearing.
¶ 2 On May 21, 1999, Hartt J. stayed the issuance of the Notice of Hearing, as directed by the Respondent Commission, pending the hearing of the judicial review application.
¶ 3 The application succeeds.
II. Chronology
¶ 4 In November 1997, Mr. (Douglas) and Mrs. (Eilidh) McBryde of Warkworth, Ontario were involved in a motor vehicle accident involving another vehicle operated by Mr. Brian Lee. P.C. Browne was one of the OPP officers who investigated the motor vehicle accident.
¶ 5 Subsequently, the McBrydes lodged a complaint with the OPP against the Applicant concerning his investigation of the accident. The complaint was lodged under the provisions of s. 60(4) of the Act.
¶ 6 Under s. 64(1) of the Act, the complaint was investigated by the Professional Standards Bureau of the OPP (Bureau).
¶ 7 The Bureau found that the evidence did not indicate any misconduct on the part of the Applicant.
¶ 8 On March 30, 1998, pursuant to s. 64(6) of the Act, a copy of the final report was sent by the Bureau to the Applicant and to the McBrydes. The Applicant and the McBrydes were advised that the investigative report found that "the evidence does not indicate a misconduct" and no action would be taken against the Applicant. The Bureau commander, as required under s. 64(6) of the Act, advised the McBrydes of their right to ask the Commission to review the decision within thirty (30) days of receiving the notice that no action would be taken.
| s. | 64(6) If, at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the opinion that the complaint is unsubstantiated, the chief of police shall take no action in response to the complaint and shall notify the complainant and the police officer who is the subject of the complaint, in writing, together with a copy of the written report, of the decision and of the complainant's right to ask the Commission to review the decision within 30 days of receiving the notice. |
¶ 9 On April 7, 1998, the Bureau received a letter from the McBrydes; the letter is not part of the Record.
¶ 10 On June 5, 1998, the Bureau Commander wrote to the McBrydes and said, in part:
I have reviewed the investigative report and agree with its findings that the evidence does not indicate a misconduct. |
The Bureau Commander then reviewed, and answered, seriatim, each of the eight (8) allegations of the McBrydes.
The Bureau Commander's June 5, 1998 letter concluded:
After carefully considering all the facts in this case, I am satisfied that the officer conducted himself appropriately and within OPP policies and generally accepted police practices. Therefore, on behalf of Commissioner G.M. Boniface, it is my decision to take no further action in this manner. |
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You may submit a signed, written request within 30 days for a review of this decision to the Ontario Civilian Commission on Police Services (OCCPS), Public Complaints Bureau, 1st Floor, 25 Grosvenor Street, Toronto, Ontario, M7A 1Y6, or by facsimile transmission to 416-314-2036 (Toronto) or, elsewhere in Ontario, 1-888-311-7555 (toll-free). The OCCPS is an agency of the Province of Ontario and not associated with this police service. |
¶ 11 On or about July 2, 1998, the McBrydes requested the Commission to review the decision of the OPP's Professional Bureau of Standards not to proceed with a hearing against the Applicant.
¶ 12 On August 31, 1998, the Commission wrote to the "McBrides" (sic) and said, in part:
Your file came before a Review Panel composed of Commission members who were fully briefed regarding its contents. |
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We reviewed the entire contents of your file including your initial complaint and subsequent submissions, the memobook entries and statement of the involved officer as well as the statements of independent witnesses. Upon reviewing the file, the panel has determined that the matter ought to be remitted to the O.P.P. for a hearing under s. 64(7) of the Police Services Act. |
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The Ontario Provincial Police will take carriage of this matter and we will accordingly, close this file at the Commission. Please be advised that under Part V of the Police Services Act, s. 72(12), the Commission's decision is final and binding and there is no appeal therefrom. |
The author of all Commission letters referred to in these reasons, Sheila Cuthbertson, deposes in her affidavit filed, that she is a barrister and solicitor, a staff member of the Commission assigned to the Complaint Bureau of the Commission.
¶ 12a A copy of the August 31, 1998 letter from the Commission to the McBrydes shows that a copy of the letter was sent to P.C. Browne and a copy to Superintendent K. Christopherson, the Commander of the Bureau. [The Court did not number this paragraph. Quicklaw has assigned the number 12a.]
¶ 13 In his letter, dated October 5, 1998, the Bureau Commander wrote to the Commission and stated, in part:
In your correspondence to the McBryde's you state: "Upon reviewing the file, the panel has determined that the matter ought to be remitted to the O.P.P. for a hearing under s. 64(7) of the Police Services Act." |
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Since this complaint raised 8 separate allegations of misconduct, will you please advise me what "matter" the panel feels should be subject of a hearing under s. 64(7). Your detailed response is required before we can formulate any Notice of Hearing. |
¶ 14 The Commission's letter of October 9, 1998 to the Bureau Commander stated:
... the Commission believes there is sufficient evidence to allege unsatisfactory work performance of a serious nature arising from the failure of the officer to vigorously pursue any and all investigative avenues available to him in the McBryde matter, and should be dealt with in accordance with s. 64(7) of the Police Services Act. |
¶ 15 In his letter of October 14, 1998 to the Commission, the Bureau Commander said:
Further to my letter of October 5, 1998 and your letter of October 9, 1998 I again request detailed information that supports that the officer failed to "vigorously pursue any and all investigative avenues available to him". |
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As I indicated, there were 8 allegations made by the McBrydes and the Commission's decision of August 31, 1998 does not identify which of the 8 are the subject of this order. One could speculate that the Commission found against the officer in any or all of the following allegations: |
| * | Constable Brown neglected to demand a breath sample; |
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| * | Constable Brown neglected to take a statement from Mrs. McBryde; |
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| * | Constable Brown failed to inquire about the injuries to the McBrydes. |
On two occasions you have told me, on the phone, that the Commission felt that the officer was negligent in that he did not "attempt to get a telewarrant" for a blood sample from Mr. Lee. Will you please confirm, in writing, that this is the issue the Commission finds problematic. |
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I am also surprised to see that your letter of October 9, 1998 now characterizes Constable Brown's conduct as "unsatisfactory work performance" rather than "misconduct". Will you please advise me why it is now specifically identified in that manner. |
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As I indicated in my previous correspondence, I am unable to issue a Notice of Hearing to Constable Brown without specifics of the alleged conduct the Commission finds offensive. The lack of specifics will render a Notice of Hearing invalid. |
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I await your response before I proceed. |
¶ 16 In its October 26, 1998 letter to the Bureau Commander, the Commission said:
Thank you for your letter dated October 14, 1998. I will be appearing before the original review panel and will request more explicit direction. I can advise at this time that the review panel was of the view that those allegations enumerated in your correspondence were not substantiated. |
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I expect to re-attend before the Review Panel on November 2, 1998 when the Commission has its monthly meeting. I will contact you after that date. |
¶ 17 In its November 17, 1998 letter to the Bureau Commander, the Commission said:
I am writing to provide you with further information regarding the Commission's directions with respect to the above noted file. I have spoken to the members of the review panel who initially heard this file and they provided me with the following information. |
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The panel was of the view that there was sufficient evidence to allege that the involved officer's actions were of such a nature so as to attract the sanction found in s. 64(7) o the Police Services Act. Accordingly, the Commission directs you to charge the officer with either misconduct (neglect of duty) or unsatisfactory work performance and convene a hearing. |
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I can advise that the Commission's concern arose around the officer's failure to attempt to obtain a warrant to obtain a blood sample from the impugned driver. However, it may be that you see other areas of concerns within the file and accordingly, my recitation of the Commission's concerns should not be considered to be exhaustive. |
¶ 18 On December 8, 1998, counsel to the O.P.P. with respect to this matter, (Steve M. Boorne) wrote to the Chair of the Commission and said, in part:
We are asking the Commission to exercise its common law power of reconsideration and take a second look at its order dated August 31, 1998 directing the O.P.P. to hold a hearing into alleged misconduct by P.C. Browne under s. 64(7) of the Police Services Act. It is our position that a second look at the relevant statutory provisions from the Criminal Code will reveal that to proceed with misconduct allegations in this case will result not only in manifest unfairness to the police officer, but will undermine the integrity of the police disciplinary scheme by seeking to discipline a police officer for not doing something which is both illegal and unconstitutional. |
Mr. Boorne in his nine (9) page letter, reviewed the evidence and the law regarding s. 253, s. 254(2) and (3) and s. 256 of the Criminal Code. The letter concluded:
It is submitted that proceeding with an allegation of misconduct for neglect of duty for failing to obtain a warrant to seize blood samples, in the absence of the requisite grounds cannot constitute misconduct. By seeking to discipline this police officer for refusing to lie under oath and state that he had reasonable grounds when he did not, the O.P.P. would be sending the message to its employees that they should lie when necessary to convict an impaired driver. This is a perverse result which can only undermine the integrity of the police, the disciplinary system, and the administration of justice as a whole. |
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As such, the Ontario Provincial Police is seeking to have the Commission reconsider this matter and confirm the decision of the Commissioner of the O.P.P. that the complaint against P.C. Browne is unsubstantiated. |
¶ 19 The Commission's letter of January 25, 1999 to Mr. Boorne, counsel for the OPP, stated:
I have forwarded your submissions regarding your client's request for reconsideration to the Commission members who originally reviewed the McBryde decision. |
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Without ruling on whether the Commission has the power to reconsider, the panel determined that there was no new evidence or sufficient and compelling reasons to overturn its original decision. |
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Accordingly, we would request that the matter proceed as originally directed. |
¶ 20 On April 9, 1999, this application for judicial review was launched. On May 21,1999, Hartt J. granted a stay of the Commission's decision pending the hearing of this judicial review application.
¶ 21 At no time has the Commission questioned or found fault with the quality or extent of the investigation conducted by the Bureau. There is no suggestion by the Commission that it has additional evidence not known to the Bureau.
| III. | Validity of the Commission's Directions of August 31, 1998 and November 17, 1998 |
¶ 22 The obligations of the Commission on a review are set out in the Act:
| s. | 72(7) Upon receiving a request for a review under this section, the Commission shall review the decision, taking into account any material provided by the complainant or the chief of police, detachment commander or board, and shall endeavour to complete its review within 30 days of receiving the request, but the Commission shall not hold a hearing into the matter. |
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| (8) | Upon completion of the review, the Commission may confirm the decision or may direct the chief of police, detachment commander or board to process the complaint as it specifies or may assign the review or investigation of the complaint or the conduct of a hearing in respect of the complaint to a police force other than the police force in respect of which the complaint is made. |
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| (10) | The Commission shall notify the complainant and the chief of police, detachment commander or board, as the case may be, and the police officer who is the subject of the complaint of its decision and the action taken by it under subsection (8). |
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| (11) | If notified by the Commission that the complaint is to be processed as specified, the chief of police, detachment commander or board shall immediately so process the complaint. |
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| (12) | The Commission's decision under subsection (8) is final and binding and there is no appeal therefrom. |
¶ 23 The compact edition of the Oxford English Dictionary defines the word "specify" as follows:
to describe, mention, note particularly or specifically. |
| 1. | To speak or make relation of some matter fully or in detail |
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| 2. | To mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail. Usually said of persons, but sometimes of an act or document, etc. |
¶ 24 Counsel for the Commission submits that the Commission has no obligation to give reasons why it disagreed and reversed the decision of the Bureau Commander. Mr. Brown submits that under s. 70(11) of the Act, the Commission need only say "Thou shall hold a hearing" and the Commissioner of the OPP must proceed to hold a hearing under s. 64(7) of the Act.
¶ 25 When the Commission reverses the decision of the Chief of Police or Commissioner of the OPP and orders a Notice of Hearing to issue, it would seem that fair play and natural justice demand that the Commission give reasons and explain to the parties and to the public why it is overruling and reversing the officer's employer. In those circumstances, it would seem that an ipse dixit does not suffice.
¶ 26 In his text: Administrative Law, 5th ed., at p. 486, Professor Wade wrote:
The giving of reasons is required by the ordinary man's sense of justice and is also a healthy discipline for all who exercise power over others. |
¶ 27 However, having said that, in this case, the absence of reasons from the Commission need not and does not form any part of my decision.
¶ 28 In its August 31, 1998 letter that was copied to the Bureau Commander and to the Applicant, the Commission said:
Upon reviewing the file, the panel has determined that the matter ought to be remitted to the O.P.P. for a hearing under s. 64(7) of the Police Services Act. |
In its January 25, 1999 letter to Mr. Boorne, counsel for the OPP, with copies to the McBrydes, the Bureau Chief and counsel for the Applicant, the Commission said:
Without ruling on whether the Commission has the power to reconsider, the panel determined that there was no new evidence or sufficient and compelling reasons to overturn its original decision. |
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Accordingly, we would request that the matter proceed as originally directed. |
In my view, neither the letter of August 31, 1998 nor the letter of January 25, 1999, satisfies the statutory obligation of specificity as set out in s. 70(8) of the Act.
¶ 29 When the Commission exercises its authority under s. 70(8) of the Act, it is required to specify with particularity the substance and the form of the contents of the Notice of Hearing. Here, although the proposed hearing would be held under the auspices of the OPP, in reality, the hearing would be to air the Commission's allegation of impropriety. Therefore, when the Commission, pursuant to s. 70(8) of the Act, orders a hearing to be held, the Commission is compelled to set out the allegation(s) with such particularity that the allegation framed by the Commission under s. 70(8) of the Act constitutes the actual charge for the hearing under s. 70(11) and constitutes, when transmitted to those who require notice, adequate notice under s. 70(10) of the Act.
¶ 30 None of the Commission's "letters of instruction" of August 31, 1998, October 9, 1998, November 17, 1998 and January 25, 1999, either individually or collectively, satisfies the Commission's statutory obligations set out in s. 70(8) of the Act. The Commission in its letters purported to delegate to the Bureau Commander the Commission's duties under s. 70(8) to specify the complaint.
¶ 31 Indeed, the mere mention of the phrase "unsatisfactory work performance" in the Commission's letter of November 17, 1998 (supra) adds layers of uncertainty and obscurity to the mix because of the wording of Part IV of Ontario Regulation 123/98:
| 12. | This Part applies to municipal police forces and the Ontario Provincial Police. |
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| 13.(1) | Every chief of police shall establish policies for the assessment of police officers' work performance. |
| (2) | The chief of police shall make the policies available to the police officers. |
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| (3) | Before the chief of police may make a complaint against a police officer of unsatisfactory work performance, |
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| (a) | the police officer's work performance shall have been assessed in accordance with the established procedures; |
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| (b) | the chief of police shall advise the police officer of how he or she may improve his or her work performance; |
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| (c) | the chief of police shall accommodate the police officer's needs in accordance with the Human Rights Code, if the police officer has a handicap that requires accommodation because of handicap, within the meaning of the Human Rights Code; |
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| (d) | the chief of police shall recommend that the police officer seek remedial assistance, such as counselling or training or participation in a program or activity, if the chief of police is of the opinion that it would improve the police officer's work performance; and |
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| (e) | the chief of police shall give the police officer a reasonable opportunity to improve his or her work performance. |
¶ 32 The Commission has not fulfilled its prerequisite statutory obligation under s. 70(8) of the Act that would enable it to issue a valid order to the Commissioner of the OPP "that the complaint is to be processed as specified" (s. 70(11)).
¶ 33 By failing to set out the complaint with the required specificity, the Commission has exceeded its jurisdiction.
IV. Conclusion
¶ 34 The Commission lost jurisdiction when it proceeded without the specificity of complaint required by s. 70(8) of the Act.
V. Result
¶ 35
| (1) | The application for judicial review is allowed. |
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| (2) | The impugned orders of the Commission in its letters of August 31, 1998, October 9, 1998, November 17, 1998 and January 25, 1999 are quashed. |
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| (3) | The Commissioner of the OPP is prohibited from issuing and proceeding with the issuance of a Notice of Hearing directed to P.C. Browne arising from a complaint lodged by Mr. and Mrs. McBryde. |
VI. Costs
¶ 36 Costs of this application and the application before Hartt J. are fixed at $2,500.00 payable by the Respondent Commission to the Applicant.
O'DRISCOLL J.
KURISKO J.
BELCH J.
QL Update: 20000419
cp/d/qlala