The Court granted an application for judicial review by a police constable who had been suspended without pay by the respondent police chief. The Court found that the respondent did not have the authority to suspend the applicant without pay, because the applicant had not been “sentenced to a term of imprisonment”, as required by section 89(6) of the Police Services Act, despite a period of pre-sentence custody.

26. January 2010 0

Administrative law – Decisions of administrative tribunals – Police Commission – Police – Disciplinary proceedings – Penalties and suspensions – Criminal record – Judicial review – Compliance with legislation – Jurisdiction – Standard of review – Correctness

Trinaistich v. Crowell, [2009] O.J. No. 4830, Ontario Superior Court of Justice, November 13, 2009, F.R. Caputo, M.R. Dambrot and K.E. Swinton JJ.

The applicant, a police constable, was charged with several offences under to the Criminal Code, including one count of common assault and one count of possession of a restricted weapon. At the conclusion of a bail hearing, the applicant was detained in custody. The applicant ultimately pleaded guilty to the assault and weapons charges and was given a suspended sentence and an order of probation for three years on each of the charges.

The applicant was subsequently charged with having committed two acts of misconduct pursuant to what was then section 74(1), and now section 80(1), of the Police Services Act. Those charges relate to the offences to which the applicant pleaded guilty. The respondent, the Chief of Police, then formally notified the applicant that he was suspended from duty without pay pursuant to the former section 67(6) of the Act.

The applicant sought judicial review of the respondent’s decision to suspend him from duty without pay. The application raised an issue of jurisdiction, requiring the interpretation of the former section 67(6) of the Act. The chief of police has no special expertise in interpreting the law. As a result, his decision did not attract deference, and the standard of review was correctness.

Section 67(6) of the Act allowed for a police officer to be suspended without pay, if “convicted of an offence and sentenced to a term of imprisonment”. The appeal turned on the meaning to be given to the words “sentenced to a term of imprisonment” as they were used in the Act. As those words are not defined in the Act, their meaning is to be found in the statute pursuant to which an officer is sentenced, typically the Criminal Code, and the cases in which the pertinent provisions of that statute have been interpreted.

The respondent argued that, having regard to the pre-trial custody served by the applicant, the sentence imposed on him was “effectively” a sentence of imprisonment. That is, time spent in pre-sentence custody can be considered part of the term of imprisonment imposed at the time of sentence.

The Court rejected the respondent’s argument. It seemed clear from section 719(1) of the Criminal Code that ordinarily, a sentence commences when it is imposed, and from section 719(3) that although pre-sentence custody may be taken into consideration in imposing sentence, it is not part of the sentence. Since the sentence imposed on the applicant by the trial judge did not subject the applicant to imprisonment, it appeared to be clear that the applicant in this case was not sentenced to a term of imprisonment.

No policy underlying the former section 67(6) of the Police Services Act was enhanced by reading the words “sentenced to a term of imprisonment” to include a non-custodial sentence following a period of pre-sentence custody. Indeed, mischief could be done if the provision were read this way.

As a result, while there was no dispute that the respondent had jurisdiction to suspend the applicant from duty pursuant to the former section 67(1) of the Police Services Act, he had no jurisdiction to suspend him without pay.

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