Application by a police officer for an order quashing or staying disciplinary proceedings against him on the basis they contravened his rights under ss. 7 and 11 of the Canadian Charter of Rights and Freedoms

Administrative law – Decisions of administrative tribunals – Police Services Board – Police – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Investigations – Bias – Compliance with legislation – Charter of Rights and Freedoms – Judicial review

Ontario (Provincial Police) v. Ontario (Provincial) Police Services Board, [2015] O.J. No. 6534, 2015 ONSC 7718, Ontario Superior Court of Justice Divisional Court, December 11, 2015, R.D. Gordon R.S.J., A.M. Molloy and M.A. Sanderson JJ.

The applicant was a constable in the Ontario Provincial Police (“OPP”), who was suspended after it was alleged he had improperly made use of OPP resources and developed inappropriate business relationships.

Disciplinary proceedings were brought against the applicant pursuant to the Police Services Act, R.S.O. 1990, c. P.15. Under that legislation, most complaints made about the conduct of an OPP officer are referred to the Commissioner of the OPP, who may order an investigation. Following the investigation, if the Commissioner believes on reasonable and probable grounds that the officer in question has engaged in misconduct, they are required to convene a misconduct hearing. The Commissioner must designate an individual to act as prosecutor for the purposes of the misconduct hearing, and also must act as the hearing’s adjudicator, or appoint a designated individual to do so. If the Commissioner or their delegate finds misconduct has been proved based on clear and convincing evidence, the officer in question faces the prospect of disciplinary measures including dismissal from the force.

The applicant argued that structuring the misconduct hearing in this way breached his rights to a fair hearing before an independent and unbiased tribunal. In particular, he alleged the procedure outlined above breached his rights under sections 7 and 11 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982(UK), 1982, c. 11 [Charter].

In dismissing the application, the Court, writing per curiam, affirmed the principle that, absent constitutional constraints, the degree of independence required of a particular tribunal is determined by its enabling statutes.

Turning first to the alleged breach of section 11 of the Charter, the Court noted that section applies only to criminal or penal matters and not discipline proceedings. It therefore had no application to the misconduct hearing. The Court also rejected the applicant’s argument that section 7 guaranteed standalone procedural rights absent an interference with life, liberty, or security of the person, as well as his contention that the effects of the stigma associated with disciplinary proceedings were sufficient to engage section 7.

Finally, the Court considered the argument that an individual’s ability to pursue a chosen profession is, or ought to be, a protected right under section 7 such that a disciplinary process affecting that ability without sufficient procedural safeguards amounts to a deprivation of the rights to liberty and security of the person contrary to the principles of fundamental justice.

While it appears the Court found this argument compelling, it held it was bound by the previous decision of the Ontario Court of Appeal in Mussani v. College of Physicians and Surgeons of Ontario, [2004] O.J. No. 5176, in which it was decided there is no constitutional right to practice a profession unfettered by that profession’s applicable rules and standards. The Court did not consider that either of the preconditions for the reconsideration of a binding appellate decision by a lower court set out in Carter v. Canada (Attorney General), [2015] S.C.J. No. 5, was met in this case.

As a result, the Court held that there was no breach of the applicant’s Charter rights and it therefore was without jurisdiction to grant any of the relief sought.

To stay current with the new case law and emerging legal issues in this area, subscribe here.