Ontario Civilian Commission on Police Services v. Browne

Ontario Civilian Commission on Police Services v. Browne Collection Decisions of the Court of Appeal Date 2001-11-27 Docket numbers C34908, C34970 Judges Abella, Rosalie Silberman; Charron, Louise Vivianne; Sharpe, Robert J. Subject Civil Decision Content DATE: 20011127 DOCKET: C34970 and C34908 COURT OF APPEAL FOR ONTARIO ABELLA, CHARRON and SHARPE JJ.A. BETWEEN: ) ) ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES ) ) ) Dennis W. Brown, Q.C. for the appellant Ontario Civilian Commission on Police Services Appellant ) ) W. Michael Temple, Q.C. and Lorna E. ) Boyd for the respondent Browne - and - ) ) NEIL BROWNE and the COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE ) ) ) Steven M. Boorne for the respondent Commissioner of the Ontario Provincial Police ) Respondents ) ) ) D. Thomas H. Bell for the appellant, respondent by way of cross-appeal Ontario Civilian Commission on Police Services ) A N D BETWEEN: ) Guy J. Pratte for the appellant, ) respondent by way of cross-appeal ATTALAH SADAKA and MARK MacMILLAN ) ) Chief of Police of the Ottawa-Carleton Regional Police Service ) Applicants (Respondents, Appellants by way of cross-appeal) ) ) ) Allan O’Brien for the respondents, appellants by way of cross-appeal Attalah Sadaka and Mark MacMillan ) - and - ) Ian J. Roland and Marcus A. Knapp for the ) intervener Police Association of Ontario ANDRÉE HOUDE, HÉLÈNE GOULET, THE CHIEF OF POLICE OF THE OTTAWA-CARLETON REGIONAL POLICE SERVICE and ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES ) ) ) ) ) ) ) Respondents (Appellants, Respondents by way of cross-appeal ) ) ) HEARD: March 20, 2001 On appeal from the judgment in Browne v. Ontario (Civilian Commission on Police Services) of the Divisional Court (Justices John O’Driscoll, Stanley Kurisko and Douglas Belch) dated November 9, 1999, reported at [1999] O.J. No. 5359; and On appeal from the judgment in Sadaka v. Houde of the Divisional Court (Justices Douglas Coo, William Somers and Anne Molloy) dated May 9, 2000, reported at (2000), 4 C.C.E.L. (3d) 153. ABELLA J.A.: [1] These are two separate appeals relating to the way public complaints about police conduct are dealt with by the Ontario Civilian Commission on Police Services (the “Commission”). In particular, the appeals relate to the Commission’s duties when it reviews a decision by the Chief of Police not to hold a hearing into the complaint. On judicial review, two differently constituted panels of the Divisional Court quashed the Commission’s decision in each case that a hearing be held, on the grounds primarily that the allegations had been insufficiently particularized by the Commission. These appeals by the Commission are from those two Divisional Court decisions. In Sadaka v. Houde, there was also a cross-appeal concerning the applicability of a regulation of the Police Services Act. [2] Under the Police Services Act, R.S.O. 1990, c.P.15, a member of the public may make a complaint about the conduct of a police officer (s. 56(1)). The chief of police, defined as including the Commissioner of the Ontario Provincial Police, must give the police officer notice of the substance of the complaint (s. 56(7)); determine whether the complaint is about the policies of or services provided by the police force or about the conduct of a police officer (s. 59(1)); review the complaint (s. 61(1)); cause an investigation to be conducted (s. 64(1)); and determine whether a hearing into the complaint should be held (s. 64(7)). [3] If the chief of police decides that a hearing should be held because the officer’s conduct may constitute “misconduct” or “unsatisfactory work performance”, the parties are given reasonable notice of the hearing (s. 69(4)) and a full hearing into the complaint is conducted (s. 64(7)). The parties may appeal the decision to the Commission (s. 70(1)), and may further appeal the Commission’s decision to the Divisional Court (s. 71(1)). [4] If the chief of police determines that a hearing should not be held, he or she notifies the complainant and police officer of this decision (s. 64(6)). The following steps are then prescribed by the Act: 1. The complainant may ask the Commission to review the chief of police’s decision not to hold a hearing (ss. 72(1) and 72(5)). 2. The Commission conducts a paper review within 30 days of the chief of police’s decision (s. 72(7)). 3. The Commission may confirm the chief of police’s decision; overturn the decision and direct the chief of police to process the complaint “as it specifies”; or assign the complaint to another police force (s. 72(8)). 4. If the Commission determines that a hearing should be held, it notifies the chief of police, complainant, and police officer of its decision (s. 72(10)). 5. There is no appeal from the Commission’s decision (s. 72(12)). 6. The chief of police must process the complaint “as specified” by the Commission (s. 72(11)). 7. The parties are given “reasonable notice of the hearing” (s. 69(4)). 8. A full hearing is held to determine whether the complaint is justified. 9. The parties may appeal the decision made after a hearing to the Commission (s. 70(1)). 10. If the decision is appealed by a police officer, the Commission “shall” hold a hearing (s. 70(2)). If the appeal is from a complainant, the Commission “may” hold a hearing (ss. 70(3) and 70(4)). The appeal is based on the record, but new or additional evidence may be received (s. 70(5)). 11. The Commission may confirm, revoke, or substitute its own decision (s. 70(6)). 12. The Commission’s decision may be appealed to the Divisional Court (s. 71(1)). ISSUES [5] Together, the two appeals raise the following issues: 1. What is the scope of the Commission’s duty to specify the basis for a hearing under ss. 72(8) and 72(11) of the Act, including the requirement to provide reasons; 2. Must the conditions in s. 13(3) of Regulation 128/98 (amended to O. Reg. 82/00) of the Police Services Act (the “Regulation”) be satisfied by the Commission before it can order a hearing on the basis of “unsatisfactory work performance”? [6] To better appreciate the issues, the following are the relevant provisions: Police Services Act, R.S.O. 1990, c.P.15 56. (1) Any member of the public may make a complaint under this Part about the policies of or services provided by a police force or about the conduct of a police officer. (2) The chief of police may also make a complaint under this Part about the conduct of a police officer. (7) Where a complaint is about the conduct of a police officer, the chief of police shall forthwith give the police officer notice of the substance of the complaint unless, in the chief of police’s opinion, to do so might prejudice the investigation. 59. (1) The chief of police shall determine whether a complaint is about the policies of or services provided by the police force or the conduct of a police officer and shall ensure that every complaint is appropriately dealt with as provided by section 60. (2) The chief of police shall notify the complainant in writing of his or her determination that the complaint is about the policies of or services provided by the police force or is about the conduct of a police officer and of the complainant’s right to ask the Commission to review the determination within 30 days of receiving the notice. 60. (4) All complaints about the conduct of a police officer, other than a chief of police or deputy chief of police, shall be referred to the chief of police and dealt with under section 64. 61. (1) Subject to subsections 59 (3), (4) and (5), the chief of police shall review every complaint that is made about the policies of or services provided by a municipal police force and shall take any action, or no action, in response to the complaint as he or she considers appropriate. (2) The chief of police shall submit a written report to the board, as may be requested by the board, respecting every complaint about the policies of or services provided by the police force, including a complaint disposed of under subsection 59 (3), (4) or (5), and his or her disposition of the complaint. (3) The chief of police shall notify the complainant, in writing, of his or her disposition of the complaint and of the complainant’s right to request that the board review the complaint if the complainant is not satisfied with the disposition, and the chief of police shall do so within 60 days after the later of, (a) the expiry of the 30-day period in which the complainant may ask the Commission to review a decision, as set out in a notice under subsection 59 (2) or (6); and (b) notification of the Commission’s decision after conducting the requested review. (4) If the chief of police decides to take no action with respect to the complaint, he or she shall provide the complainant with reasons for the decision. 64. (1) Subject to subsections 59 (3), (4) and (5), the chief of police shall cause every complaint made about the conduct of a police officer, other than the chief of police or deputy chief of police, to be investigated and the investigation to be reported on in a written report. (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. (7) Subject to subsection (11), 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 police officer’s conduct may constitute misconduct, as defined in section 74, or unsatisfactory work performance, he or she shall hold a hearing into the matter. 69. (4) The parties to the hearing shall be given reasonable notice of the hearing and each party may be represented by counsel or an agent. 70. (1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held under subsection 64 (7) or 65 (9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based. (2) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a police officer. (3) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a complainant if the appeal is from the finding that misconduct or unsatisfactory work performance was not proved on clear and convincing evidence. (4) The Commission may hold a hearing, if it considers it appropriate, upon receiving a notice under subsection (1) from a complainant with respect to an appeal other than an appeal described in subsection (3). (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. (6) The Commission may confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police or board, as the case may be. 71. (1) A party to a hearing under section 70 may appeal the Commission’s decision to the Divisional Court within 30 days of receiving notice of the Commission’s decision. 72. (1) If a complainant disagrees with the decision of a chief of police to deal with his or her complaint as a complaint about the policies of or services provided by the police force or as a complaint about the conduct of a police officer, the complainant may, within 30 days of receiving notice under subsection 59 (2), ask the Commission to review the decision. (5) If a complainant has been notified under subsection 64 (6) or (12) or 65 (8) or (14) that his or her complaint is unsubstantiated or that the conduct he or she complained of has been determined to be not of a serious nature, the complainant may, within 30 days of such notification, ask the Commission to review the decision. (6) The request for a review must be in writing. (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. (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. (9) If the Commission assigns the review or investigation of a complaint or the conduct of a hearing in respect of a complaint to a police force under subsection (8), the police force in respect of which the complaint is made shall pay the costs of the review, investigation or hearing incurred by the police force to which the matter is assigned. (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). (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. (12) The Commission’s decision under subsection (8) is final and binding and there is no appeal therefrom. Section 13(3) of Regulation 123/98 (amended to O. Reg. 82/00) 13. (3) Before the chief of police may make a complaint against a police officer of unsatisfactory work performance, (a) the police officer’s work performance shall have been assessed in accordance with the established procedures; (b) the chief of police shall advise the police officer of how he or she may improve his or her work performance; (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; (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 (e) the chief of police shall give the police officer a reasonable opportunity to improve his or her work performance. Statutory Powers Procedure Act, R.S.O. 1990, c.S-22 8. Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto. BROWNE v. ONTARIO (CIVILIAN COMMISSION ON POLICE SERVICES), [1999] O.J. No. 5359 (Div. Ct.) (Justices John O’Driscoll, Stanley Kurisko and Douglas Belch). (a) Facts [7] On November 20, 1997 Douglas and Eilidh McBryde were involved in a motor vehicle accident with another vehicle driven by Brian Lee. Constable Neil Browne was one of the Ontario Provincial Police (“OPP”) officers who investigated the accident. After the investigation, the McBrydes complained to the OPP under s. 56(1) of the Act, listing the following eight separate allegations about Constable Browne’s conduct of the investigation: · Constable Browne, without reason, neglected to demand a breath sample. · He personally knew Mr. Lee. · He was evasive and uncooperative regarding Mr. Lee’s driver’s licence. · He neglected his duty when he did not take a statement from Mrs. McBryde. · He took a statement from Mr. McBryde over the telephone, rendering this statement inadmissible. · He failed to inquire about the injuries to Mr. and Mrs. McBryde. · Constable Browne failed to keep the McBrydes apprised of court proceedings. · The accident report completed by him was not correct. [8] In compliance with s. 64(1) of the Act, the complaint was investigated by the Professional Standards Bureau of the OPP (the “Bureau”). The Bureau sent the McBrydes a copy of the final report on March 30, 1998. On June 5, 1998, the Superintendent of the Bureau sent the McBrydes a letter confirming that no further action would be taken. His reasons were based on a review of each of the allegations: Constable Browne, without reason, neglected to demand a breath sample. . . The only evidence of alcohol consumption was the ambulance attendant’s observation of a moderate odour of alcohol as he was treating Mr. Lee; however, his injuries would not make a breath test possible. There is no evidence to support a finding of a misconduct against Constable Browne regarding this allegation. Constable Browne personally knew Mr. Lee. There is no evidence to support this allegation. Constable Browne was evasive and uncooperative regarding Mr. Lee’s driver’s licence. Constable Browne states that he did not have the accident report in front of him at the time he spoke to Mr. McBryde. He could not recall the exact reason for Mr. Lee’s licence violation. It has been noted that the accident report indicates that Mr. Lee was charged with not having a driver’s licence and that he was not a suspended driver. There is insufficient evidence to support a finding of misconduct against the officer regarding this allegation. Constable Browne neglected his duty when he did not take a statement from Mrs. McBryde. Constable Browne states that he did not take a statement from Mrs. McBryde as there was no doubt as to who the at fault driver was. He also did not want to subject Mrs. McBryde to further trauma by having her relive the accident. There is no legal requirement that would require a statement be obtained from Mrs. McBryde. There was no misconduct by the officer regarding this allegation. Constable Browne took a statement from Mr. McBryde over the telephone, rendering this statement inadmissible. The practice of interviewing witnesses by phone does not make their statements inadmissible in court. The statement would be taken so that the Crown Prosecutor would know what evidence that witness could give in court. It would be necessary for the witness to attend and give evidence in person during a trial. There was no misconduct on the part of the officer when he interviewed you by telephone. Constable Browne failed to inquire about the injuries to Mr. and Mrs. McBryde. Constable Browne states that he contacted the Kingston Hospital numerous times regarding your condition but hospital staff would not release the information. The officer indicates he did speak with a family member and was advised of your condition. . . There is insufficient evidence to support the allegation that Constable Browne failed to make inquiries about your injuries. Constable Browne failed to keep the McBrydes apprised of court proceedings. Constable Browne indicated that he did advise you that Mr. Lee had been charged. Mr. Lee’s first court appearance was not until February 3, 1998 which is a date after this allegation was made. Witnesses are not normally subpoenaed to a first court appearance as the accused must make his plea at that time. If a trial is required, witnesses would be subpoenaed at that time. There is no evidence to support a finding of misconduct regarding this allegation. The accident report completed by Constable Browne was not correct. Constable Browne agreed that he did make an error on the report and corrected same when it was brought to his attention. Such an error does not constitute a misconduct. [9] The Bureau concluded that Constable Browne “conducted himself appropriately and within OPP policies and generally accepted police practices”, that no further action would be taken on the matter, and that the McBrydes had the right to ask the Commission to review the Bureau’s decision. [10] On July 2, 1998, the McBrydes asked the Commission to review the Bureau’s decision. On August 31, 1998, the Commission advised the McBrydes by letter of its decision that the matter should be remitted to the OPP for a hearing under s. 64(7) of the Act. The Commission also sent a copy of its letter to the Bureau and to Constable Browne. The Commission’s letter stated in part: . . . 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. 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. [11] On October 5, 1998, the Superintendent of the Bureau sent the Commission a letter requesting advice on what the Commission felt the subject of a hearing should be, given that eight separate allegations of misconduct had been raised in the complaint. The Bureau stated that a detailed response was necessary from the Commission before it could formulate a Notice of Hearing as it was required to do pursuant to s. 69(4) of the Act. [12] On October 9, 1998, the Commission wrote to the Bureau explaining that it believed that “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.” [13] On October 14, 1998, the Superintendent of the Bureau again wrote to the Commission requesting “detailed information that supports that the officer failed to “vigorously pursue any and all investigative avenues available to him”. He reiterated that since the Commission’s decision did not identify which of the eight allegations of misconduct were the subject of its order to hold a hearing, the basis of the Commission’s decision was open to speculation. He therefore asked the Commission to confirm in writing the issue it found problematic, sought clarification about why Constable Browne’s conduct was now being characterized as “unsatisfactory work performance” rather than “misconduct”, and stated that he was “unable to issue a Notice of Hearing to Constable Browne without specifics of the alleged conduct the Commission finds offensive”. [14] His obvious frustration is reflected in the following excerpt from his letter to the Commission: 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”. 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 Browne neglected to demand a breath sample; · Constable Browne neglected to take a statement from Mrs. McBryde; · Constable Browne 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. I am also surprised to see that your letter of October 9, 1998 now characterizes Constable Browne’s conduct as “unsatisfactory work performance” rather than “misconduct”. Will you please advise me why it is now specifically identified in that manner. As I indicated in my previous correspondence, I am unable to issue a Notice of Hearing to Constable Browne without specifics of the alleged conduct the Commission finds offensive. The lack of specifics will render a Notice of Hearing invalid. [15] On October 26, 1998, the Commission responded that it would request more explicit direction from the original review panel. As a result of this further inquiry, the Commission sent the Bureau a letter on November 17, 1998. It stated that the Superintendent of the Bureau was directed to charge Constable Browne with either misconduct or unsatisfactory work performance and to convene a hearing. The grounds were that there was sufficient evidence to allege that Constable Browne’s actions were “of such a nature so as to attract the sanction found in s. 64(7) of the Police Services Act”, particularly because of “the officer’s failure to attempt to obtain a warrant to obtain a blood sample from the impugned driver”. That letter also stated that: . . . 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. [16] On December 8, 1998, counsel for the OPP sent the Commission a letter requesting that the Commission exercise its common law power of reconsideration in connection with its decision to direct a hearing into Constable Browne’s actions, submitting that the failure to obtain a warrant to seize blood samples could not constitute misconduct, since Constable Browne did not have the requisite reasonable grounds to seize them. He submitted to the Commission, among other things, that: . . . alleging neglect of duty or unsatisfactory work performance for the failure to obtain a warrant to seize blood cannot amount to misconduct as the statutory preconditions for the obtaining of a warrant did not exist at the time of this incident. Further, compelling P.C. Browne to attempt to obtain a warrant without the necessary reasonable grounds would amount to a violation of the warrant provisions of the Criminal Code, an unreasonable seizure under the Charter of Rights and Freedoms, and is tantamount to imposing a duty on this police officer to lie under oath to a justice. This decision of the Commission ought to be reconsidered as it undermines the integrity of the police disciplinary scheme, and is unfair to the police officer, the employer, and the complainant. . . . It is not disputed in this case that the admission by Mr. Lee to the ambulance attendant that he had consumed four beers, and the smell of alcohol on his breath provided “reasonable suspicion” for either P.C. Browne, or P.C. Bowles, the other officer at the scene, to make an ALERT demand further to s. 254(2). The question in this case is whether or not P.C. Browne had the “reasonable and probable grounds” to take the next step in the process – to make a demand that Mr. Lee submit to a breathalyzer test, or provide samples of his blood under s. 254(3). [17] On January 25, 1999, the Commission replied to this letter from the OPP’s counsel, stating that “[w]ithout 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.” The Commission therefore requested that the matter proceed to hearing as originally directed. [18] On April 9, 1999, Constable Browne applied to the Divisional Court for judicial review of the Commission’s decision to direct a hearing. (b) Divisional Court Decision [19] On November 9, 1999, the Divisional Court allowed the application for judicial review and quashed the Commission’s order to hold a hearing. [20] The Court held that s. 72(8) imposed a “statutory obligation of specificity” on the Commission. That section states: s. 72(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. [21] The Court referred to the Oxford English Dictionary definition of “specify”, and found that the Commission was obliged to “specify with particularity the substance and the form of the contents of the Notice of Hearing” when it exercised its authority under 72(8) of the Act. The Court stated: . . . 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. 72(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. 72(8)] of the Act constitutes the actual charge for the hearing under [s. 72 (11)] and constitutes, when transmitted to those who require notice, adequate notice under [s. 72 (10)]) of the Act. [Emphasis added] [22] In the Divisional Court’s view, none of the Commission’s letters, individually or collectively, satisfied its statutory obligation of specificity, and the Commission had thereby improperly purported to delegate its duties to specify the complaint to the Bureau Superintendent. Further, the Commission’s mention of the term “unsatisfactory work performance” in its November 17, 1998 letter added uncertainty to the grounds for a hearing because of the wording of s. 13(3) of the Regulation concerning the assessment of police officers’ work performance. That provision states: s. 13(3) Before the chief of police may make a complaint against a police officer of unsatisfactory work performance, (a) the police officer’s work performance shall have been assessed in accordance with the established procedures; (b) the chief of police shall advise the police officer of how he or she may improve his or her work performance; (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; (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 (e) the chief of police shall give the police officer a reasonable opportunity to improve his or her work performance. [23] Because the Court found that the Commission had not fulfilled its statutory obligation of specificity, and because it held that this obligation is a prerequisite for the valid issuance of an order to the OPP to hold a hearing, the Commission was found to have exceeded its jurisdiction. [24] The Divisional Court also held that when the Commission reverses the chief of police’s decision and orders a hearing, “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.” However, the Court stated that the absence of reasons was not the basis of its decision to intervene. SADAKA v. HOUDE (2000), 4 C.C.E.L. (3d) 153 (Div. Ct.) (Justices Douglas Coo, William Somers and Anne Molloy). (a) Facts [25] On April 3, 1998, Andrée Houde and Hélène Goulet parked their minivan on a street in Ottawa and went out for the evening. During the evening, Constable Mark MacMillan and another undercover police officer saw the minivan parked in an unlit area. After noticing damage to the door and the ignition cylinder, the officers called the communications department to see if the minivan had been reported stolen. Although the licence plate check did not indicate a theft, the officers nonetheless suspected that the owner did not yet know that the vehicle was stolen. No other preliminary investigation was conducted, but six other undercover officers were contacted and surveillance was set up, according to the police officers, about 100 to 150 yards away. [26] At around 10:55 p.m., Ms. Houde and Ms. Goulet returned to the minivan and drove away. When they approached the intersection ahead, unmarked police cars blocked the vehicle. As they were about to pass these vehicles, three or four men ran towards the minivan, screaming at the women to open the door and banging on the windows. Ms. Houde and Ms. Goulet saw that one of the men had a gun. [27] The complainants did not realize the men were police officers, believed that they were being attacked, and, terrified, attempted to escape. (The police report states that the officers yelled “stop police” and that their jackets had “police” marked on the side.) The complainants reversed the minivan, hitting a car that was blocking them from the rear, swerved onto the sidewalk, and drove past the car that was blocking them from the front. A police officer fired his gun at the tires of the minivan in an attempt to immobilize it. [28] A few blocks away, Ms. Houde and Ms. Goulet noticed a marked police car, flashed the headlights of their minivan to attract the police’s attention, stopped the minivan and waved down the police. When the police car had stopped, Ms. Houde and Ms. Goulet noticed that some of the men who had “attacked” the minivan were present in the police car. It was only then that they realized that the men who had “attacked” the minivan were police officers. [29] On April 14, 1998, Ms. Houde and Ms. Goulet made a complaint to the chief of police under s. 56(1) of the Act, alleging misconduct against the five police officers involved in the vehicle take-down. The complaint was categorized as a complaint about the conduct of the named officers, the policies and services of the Ottawa-Carleton Regional Police Service (“OCRPS”), and the media releases concerning the incident. [30] In accordance with s. 64(1) of the Act, the chief of police called for an investigation into the matter, which resulted in a report dated June 18, 1998. The report found that the complaints regarding the policies and services of the OCRPS and the media releases concerning the incident were substantiated and identified areas for improvement. However, the report also concluded that the complaints regarding the conduct of the named officers were unsubstantiated, and that “while errors in judgment were made, such errors do not constitute misconduct as defined in the Police Services Act”. The chief of police undertook to bring these matters to the attention of the officers and take remedial steps such as further training to improve their performance. [31] After receiving the chief of police’s decision, Ms. Houde and Ms. Goulet asked the Commission to review it. On October 9, 1998, the Commission sent a letter to the chief of police stating that there was sufficient evidence to allege unsatisfactory work performance “against Acting Sergeant Sadaka owing to his responsibilities as a supervisor during the whole of the incident” and “against P.C. MacMillan, in deciding not to effect a contact with the registered owner of the vehicle and for being responsible in establishing a “stake-out” position some 197 yards from the target vehicle”. The letter to the chief of police stated in part: . . . The review has been allowed in part. The Commission has concluded that charges of unsatisfactory work performance as against two of your officers should proceed to a hearing before an adjudicator appointed from another police service. Specifically, the Commission believes that there is sufficient evidence to allege unsatisfactory work performance as against Acting Sergeant Sadaka owing to his responsibilities as a supervisor during the whole of the incident. Secondly, there is sufficient evidence against P.C. MacMillan, in deciding not to effect a contact with the registered owner of the vehicle and for being responsible in establishing a “stake-out” position some 197 yards from the target vehicle, to also allege unsatisfactory work performance. There has been some discussion between your counsel and commission staff regarding the operation of s. 13 of O. Reg. 123-98 and s. 64(7) of the Police Services Act. The Commission has taken the view that given that this matter arises in the context of a public complaint, there is nothing in this Regulation that would preclude these matters proceeding to a hearing. [32] On the same day, October 9, 1998, the Commission sent a letter to Ms. Houde and Ms. Goulet with copies to Sergeant Sadaka, Constable MacMillan and the chief of police, confirming that the conduct should be dealt with in accordance with s. 64(7) of the Act as a complaint of “unsatisfactory work performance of a serious nature” and that a hearing should be held by an adjudicator from another police service: Upon review, the Commission made the following determinations: 1. With respect to your complaint regarding the news release, the Commission confirms the decision of the Chief, particularly in light of the proposed changes to the policy concerning news releases. 2. With respect to your complaint regarding the conduct of P.C. Fitzgerland, the Commission has confirmed the decision of the Chief. 3. With respect to other involved officers, the Commission has determined that the actions of Acting Sergeant Sadaka as well as P.C. MacMillan should be dealt with in accordance with s. 64(7) of the Police Services Act as a complaint of unsatisfactory work performance of a serious nature. Further, the Commission has determined that the hearing should be conducted by an adjudicator appointed from another police service. Be advised pursuant to s. 72(12) of the Police Services Act, the decision of the Commission is final and there is no appeal therefrom. [33] After telephone conversations between the staff of the chief of police’s office and the staff working with the Commission, the Superintendent of the OCRPS sent the Commission a letter on October 28, 1998 seeking clarification and guidance, and expressing concern that the charges of unsatisfactory work performance might be vulnerable to a challenge on the basis of vagueness, deficiency, and the lack of a specific statutory reference. He requested the Commission’s input on the specific aspects of the supervisory function that Sergeant Sadaka failed to perform and the specific reference in the Act or Regulation that the Commission relied on. [34] The Commission responded with a telephone message and a letter dated November 4, 1998, stating that it would be inappropriate for the Commission to comment on any possible wording of an allegation of unsatisfactory work performance of a serious nature. It noted that the Superintendent had already been provided with the areas of concern to the Commission, and that since the Commission is the appellate body for any disciplinary decision flowing from the Act, it was unable to assist the Superintendent any further. [35] On March 5, 1999, Sergeant Sadaka and Constable MacMillan brought an application to the Divisional Court for judicial review of the Commission’s decision to hold a hearing. The Chief of Police of the OCRPS and the intervener Police Association of Ontario supported the application. (b) Divisional Court Decision [36] On May 9, 2000, the Divisional Court allowed the application for judicial review and quashed the Commission’s order to hold a hearing. The basis for the Divisional Court’s decision was that although the Commission had jurisdiction to order a hearing on the basis of “unsatisfactory work performance”, it had not set out the grounds for holding a hearing with the requisite degree of precision or detail, thereby exceeding its jurisdiction. [37] Justice Coo held that the Commission could direct a hearing regarding “unsatisfactory work performance” even if the chief of police had not previously taken the remedial steps required by s. 13(3) of the Regulation. The Commission’s position is that independent of any condition precedent to a hearing based on a Chief’s complaint under section 56(2), the Commission has the statutory authority under section 72(8) to direct a hearing, just as the Chief had a right found in the words of section 64(7), in the case of a complaint by a member of the public, to hold a hearing if he or she is of the opinion on the basis of investigation and review of the written report called for, that the officer’s conduct may constitute misconduct or unsatisfactory work performance. The argument of the Commission on this point is unanswerable. It does no violence to the labour relations aspects of the legislation, nor does it in effect read out of sections 25 and 64(7) that which is clearly there. The term ‘unsatisfactory work performance’ is used in various contexts in the statute, including ones in which there was clearly no intent to incorporate the procedures set out in the Regulation. . . . As part of this interpretive process it is worth remembering that the Commission is given first instance power to inquire into and conduct a hearing about misconduct or unsatisfactory work performance of an officer, and if it concludes that either existed to exercise the alternative disciplinary steps listed in section 68 that are also available to a chief of police after a hearing directed by him or her. There is nothing in section 25 to suggest that the labour relations steps set forth in the Regulation must be applied at any stage of its procedures. [38] However, the Court concluded that based on the requirements set out in Browne, the Commission had failed to set out the reasons and allegations with sufficient particularity. [39] The Divisional Court held that while there may not be a strict obligation to provide reasons, the absence of reasons is significant given the statutory requirement of specificity set out in s. 72(8) and the barring of a right of appeal in s. 72(12). The Court also held that since there is no defined standard to be applied to cases involving allegedly unsatisfactory work performance, fulfilling the specificity requirements set out in Browne was even more important. Because the Commission did not satisfy these requirements, the Divisional Court quashed the Commission’s order to hold a hearing. THE APPEAL [40] In both cases, the Commission appealed the Divisional Court’s decision quashing its orders to hold a hearing. [41] In Sadaka, Sergeant Sadaka, Constable MacMillan and the Chief of Police of the OCRPS cross-appealed on the issue of the Commission’s jurisdiction to order a hearing on the basis of unsatisfactory work performance without first complying with s. 13(3) of the Regulation. Based on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, they argued that the appropriate standard of review was “reasonableness” and that the Commission’s decision was unreasonable. The Police Association of Ontario intervened in support of this position. [42] In the alternative, the cross-appellants submitted that even if the Commission was not bound by the preconditions in s. 13(3), the Commission must abide by the distinction between misconduct and unsatisfactory work performance established in the Act. The term “unsatisfactory work performance” must be interpreted to refer only to those matters where the necessary steps have been taken and performance has not improved. Hence, an isolated instance of wrongdoing must be considered “misconduct” rather than “unsatisfactory work performance”. Without evidence to support a finding that the police officers engaged in improper conduct over time, the Commission acted unreasonably in directing a hearing into allegations of unsatisfactory work performance. [43] In his cross-appeal, the Chief of Police of the OCRPS argued that only the chief of police can determine that a public conduct complaint involves allegations of unsatisfactory work performance. He submitted that since the chief of police must fulfill the preconditions in s. 13(3), complaints initiated by members of the public should be similarly dealt with. ANALYSIS 1. What is the scope of the Commission’s duty to specify the basis for a hearing under s. 72(8) of the Act, including the requirement to provide reasons? [44] Contrary to the view of the Divisional Court, I do not think the Commission should be expected to draft the allegations with “such particularity that the allegation framed by the Commission constitutes the actual charge for the hearing”. The imposition of a duty to frame the actual charge also risks impairing the Commission’s impartiality as the body hearing appeals from decisions made at a hearing. [45] In Browne and Sadaka, the Divisional Court held that the Commission had a duty to specify the grounds for a hearing under ss. 72(8) and 72(11). In Browne, the Court held that the Commission must specify “with particularity the substance and the form of the contents of the Notice of Hearing” and that since the hearing is “to air the Commission’s allegation of impropriety”, the Commission must set out the allegation with such particularity that the allegation framed constitutes both the actual charge for the hearing under s. 72(11) and adequate notice under s. 70(10). In Sadaka, the Divisional Court adopted the above requirements. In both cases, the Divisional Court held that the Commission did not satisfy this duty of specificity. [46] The duty of specificity flows from the statutory scheme, particularly the Commission’s jurisdiction to direct the hearing of a complaint and the chief of police’s duty to process that complaint as the Commission specifies. The sufficiency of those directions therefore depends on whether they provide enough information to permit the chief of police to process the complaint. That in turn requires an analysis of the duties in s. 72(8) and s. 72(11) of the Act, which state: s. 72(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. s. 72(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. [47] The Act does not define the terms “specify” or “specified”. It is therefore necessary to consider the Commission’s duties when it processes public complaints. [48] The Statutory Powers Procedure Act applies to the actual hearing held by the chief of police. Section 8 of the SPPA entitles a party to a proceeding whose “good character, propriety of conduct or competence is an issue”, to be furnished with “reasonable information of any allegations”. Under s. 69(4), the parties are entitled to “reasonable notice” of the hearing. [49] Because the chief of police is obliged under s. 72(11) to process the complaint “as specified” by the Commission, it follows that the Commission must clearly provide the information necessary for the chief to comply with his or her statutory duty. But compliance does not require elaborate particularity from the Commission; rather, what is required is sufficient information to permit the chief of police reasonably to inform the police officer of the case he or she will be required to meet. [50] The adequacy of the information’s content, not the degree of formal delineation, governs the determination whether the requirement has been satisfied. [51] In both Browne and Sadaka the Commission responded to requests for information by sending letters containing further details. In Browne, the Commission advised the Bureau in its November 17, 1998 letter (which is the only letter on which the Commission relied) that “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”. The Commission also advised the Bureau that its concerns “arose around the officer’s failure to attempt to obtain a warrant to obtain a blood sample from the impugned driver”. [52] In Sadaka, the Commission advised the chief of police in its October 9, 1998 letter that there was sufficient evidence to allege unsatisfactory work performance “against Acting Sergeant Sadaka owing to his responsibilities as a supervisor during the whole of the incident” and “against P.C. MacMillan, in deciding not to effect a contact with the registered owner of the vehicle and for being responsible in establishing a “stake-out” position some 197 yards from the target vehicle”. [53] While the Commission’s letters in both appeals do not formally particularize the grounds for a hearing, they comply sufficiently with the statutory duty to specify found in s. 72(8). [54] The chief of police did not need further particulars from which to draft a Notice of Hearing as it would be the same information already contained in the police file. The chief of police must have been aware of the allegations since he would have already reviewed the investigative report and the complainant’s case before making a determination on whether the complaint warranted a hearing. There was no further information he needed to enable him to comply with his statutory duties. [55] The investigation conducted at the request of the chief of police by the police culminated in a report. The police officers in this case had access to the report. Further, the report and any information the police and complainant have are sent to the Commission if a complainant requests a review of the chief of police’s decision under s. 72(1). As stated in s. 72(7), the Commission is to conduct the review of the chief of police’s initial determination by taking into account “any material provided by the complainant or the chief of police”. This information was furnished by the police and included in the police file sent to the Commission. [56] With respect, therefore, it is my view that in both cases under review, the Divisional Court erred in concluding that the Commission had insufficiently specified the grounds for the hearing. [57] There is, however, a caveat in connection with Browne. In Browne, the only clear reference was to “the officer’s failure to attempt to obtain a warrant to acquire a blood sample from the impugned driver”. The Commission’s direction that there may be “other areas of concerns within the file” falls far short of any specificity requirement. I would therefore read the Commission’s direction that a hearing be held, as one ordering a hearing only on the ground of the officer’s failure to obtain a warrant. [58] Although there is a statutory duty to direct a hearing “as specified”, which carries with it the duty to sufficiently set out the basis of that hearing, in my view the actual decision to order - or not order - a hearing requires no reasons beyond a properly specified basis for a hearing. [59] The Commission’s decision whether to order a hearing is explicitly exempt from compliance with the Statutory Powers Procedure Act by s. 22(3) of the Act, which states: 22. (3) The Statutory Powers Procedure Act does not apply to the Commission, except to a hearing conducted by the Commission under subsection 23(1), 25(4), (4.1) or (5), 39(5), 47(5), 65(9), 70(2), (3) or (4) or 116(1). [60] Under s. 72(7), the Commission is required to conduct a paper review of the chief of police’s decision without convening a hearing, and to do so within 30 days of receiving the request for a review. The Commission’s decision that a hearing should be held is not a determination of the merits or strength of the complaint, but rather of the fact that there is sufficient material to justify a hearing. The nature of the decision being made by the Commission - a screening function rather than a determination of the merits - and the informality of the process set out in the Act, argue for diminished procedural requirements. [61] Moreover, as discussed earlier, the Commission’s role as the appellate body from decisions made after a hearing into complaints, may be unduly compromised by the obligation to provide any reasons at this gatekeeping stage. Given the statutory scheme, it could in any event be taken as implicit that the Commission’s decision is based on its view that the allegations raised either are or are not sufficiently serious to warrant a hearing. Beyond this, reasons are neither necessary nor appropriate at this stage. [62] These factors, in combination with the exemption from the Statutory Powers Procedure Act, persuade me that there is no common law duty to provide reasons for the decision to confirm or overturn the decision of the chief of police. 2. Must the conditions in s. 13(3) of the Regulation be satisfied by the Commission before it can order a hearing based on “unsatisfactory work performance”? [63] The cross-appellants argued that s. 13(3) of the Regulation applies to the Commission primarily on the grounds that an illogical distinction is otherwise made between complaints of unsatisfactory work performance initiated by the public and those internally initiated by the chief of police. I find nothing illogical in such a distinction. I therefore agree with the reasons of the Divisional Court in Sadaka that s. 13(3) of the Regulation does not apply to the Commission’s decision to order a hearing into unsatisfactory work performance. [64] The language of s. 13(3) of the Regulation restricts its application to a complaint of unsatisfactory work performance initiated by the chief of police. The legislature could easily have so worded this section to apply to public as well as internal complaints. Instead, it reserved the conditions precedent only to circumstances where the chief of police, not a member of the public, complains of unsatisfactory work performance. [65] The Act draws a clear demarcation between public and internal complaints in other provisions of the Act as well. Section 56(1) provides that “any member of the public may make a complaint” and s. 56(2) provides that “the chief of police may also make a complaint”. If there were no distinction between public and internal complaints, these separate subsections would be redundant. Similarly, where a member of the public withdraws a complaint, s. 56(5) provides that the chief of police “may continue to deal with the complaint”. If there were no distinction between public and internal complaints, this explicit statutory authority would similarly be superfluous. [66] The purpose of the Act is found in its Declaration of Principles in s. 1, which provides: Police services shall be provided throughout Ontario in accordance with the following principles: 1. The need to ensure the safety and security of all persons and property in Ontario. 2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code. 3. The need for co-operation between the providers of police services and the communities they serve. 4. The importance of respect for victims of crime and understanding of their needs. 5. The need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario society. 6. The need to ensure that police forces are representative of the communities they serve. [67] The legislative purpose is demonstrably to increase public confidence in the provision of police services, including the processing of public complaints. That confidence is further protected legislatively by assigning to the Commission, under s. 72(8), responsibility for reviewing the decision of a chief of police regarding complaints from the public. [68] The distinction between public and internal complaints flows logically from the policy of the Act. In the case of internal complaints, the chief of police brings a complaint directly against a police officer. Since he or she is the officer’s employer and has the power to order the police officer’s dismissal or suspension, among other possible sanctions under s. 68(1) [1] , the graduated discipline found in s. 13(3) of the Regulation provides necessary and appropriate safeguards in the vulnerable relationship between an employer and employee. [69] In the case of public complaints, on the other hand, different considerations apply. The public may well feel that the police response will be more protective when a member of the public makes a complaint against an officer than when it is the chief of police himself or herself who complains. The public needs to feel confident in the complaints process. This means that its complaints justify different - and more transparent - processes than those internally driven. Requiring the Commission to first satisfy the steps in s. 13(3) of the Regulation before ordering a hearing on the basis of unsatisfactory work performance would undermine the public’s ability to have its valid complaints openly considered. This in turn would undermine the perceived integrity of the process and, therefore, the objectives of the legislation. [70] This does not mean that every complaint from the public creates an automatic entitlement to a hearing. There still needs to be a determination that the allegation is sufficiently serious to warrant a hearing, a determination left by statute to the Commission as final arbiter. [71] There is accordingly no obligation on the part of the Commission to satisfy the conditions precedent in s. 13(3) of the Regulation before it has jurisdiction to order a hearing on the basis of unsatisfactory work performance. [72] Similarly, there is no statutory or policy basis for restricting the Commission’s ability to direct a hearing into unsatisfactory work performance to those circumstances where there has been a continuing course of improper conduct. The Commission decides whether the complaint warrants a hearing into an officer’s conduct based on misconduct or unsatisfactory work performance. There is nothing in the Act that would preclude directing a hearing based on only one incident under either category. Whether or not the impugned conduct amounts to “unsatisfactory work performance” is a question to be determined at the hearing. [73] The cross-appellants in Sadaka argue in either event that the Commission’s decision to order a hearing was “unreasonable”. The Commission, on the other hand, submitted that its decision should be accorded curial deference. In my view, the applicable standard of review of the Commission’s decision to order a hearing is patent unreasonableness. The privative clause in s. 72(12), which states that the Commission’s decision under s. 72(8) of the Act is “final and binding and there is no appeal therefrom”, confirms the legislature’s intention that the decision to order - or not to order - a hearing into an officer’s conduct should be protected from review and is entitled to deference. [74] In addition, the specialized expertise of the tribunal cannot be doubted, as the range of its assigned statutory duties demonstrates. Under the Act, the Commission is empowered to hear appeals; suspend or remove the chief of police or members of the board; disband the police force; appoint an administrator to perform specified functions; conduct investigations; conduct inquiries under the direction of the Lieutenant Governor in Council; conduct inquiries on its own motion; conduct reviews under s. 72; and make recommendations regarding the policies or services of a police force. [75] The combination of the purpose of the Act, the privative clause, and the designated and specialized expertise of the Commission call for patent unreasonableness as the guiding standard of review. In my view, the Commission’s decision in Sadaka to order a hearing cannot be said to be patently unreasonable, particularly given the serious nature of the allegations. [76] The parties in Browne acknowledged that the basis of the judicial review was not the merits of the decision to order a hearing, but the sufficiency of the grounds. The applicability of the standard of review therefore does not arise in Browne. CONCLUSION [77] I would therefore allow both appeals, dismiss the cross-appeal in Sadaka, set aside the orders of the Divisional Court, and dismiss the applications for judicial review. In the circumstances, I would make no order for costs. Signed: “R. S. Abella J.A.” “I agree Louise Charron J.A.” “I agree Robert J. Sharpe J.A.” RELEASED: NOVEMBER 27, 2001 “RSA” [1] 68. (1) The chief of police may, under subsection 64 (10), (a) dismiss the police officer from the police force; (b) direct that the police officer be dismissed in seven days unless he or she resigns before that time; (c) demote the police officer, specifying the manner and period of the demotion; (d) suspend the police officer without pay for a period not exceeding 30 days or 240 hours, as the case may be; (e) direct that the police officer forfeit not more than three days or 24 hours pay, as the case may be; or (f) direct that the police officer forfeit not more than 20 days or 160 hours off, as the case may be.