Court of Appeal reviews the Standard of proof applicable to a finding of misconduct under Ontario Police Services Act

The Appellant, Constable Jacobs, was found guilty of professional misconduct under the Police Services Act. He argued the wrong standard of proof was applied but the finding was upheld by the Ontario Civilian Police Commission and the Ontario Divisional Court. The Ontario Court of Appeal then allowed his appeal.

Administrative law – Compliance with legislation – Conduct unbecoming – Decisions of administrative tribunals – Disciplinary proceedings – Evidence – Judicial Review – Police – Police Commission – Professional misconduct – Standard of Proof

Jacobs v. Ottawa (City) Police Services[2016] O.J. No. 2431, 2016 ONCA 345, Ontario Court of Appeal, May 10, 2016, J.I. Laskin, C.W. Hourigan and D.M. Brown JJ.A.

The Appellant, Constable Kevin Jacobs, is a police officer employed by the Respondent, Ottawa Police Service. He was found guilty of misconduct relating to his arrest of the Respondent, Mr. Mark Krupa. Constable Jacobs appealed the original finding of misconduct to the Respondent, Ontario Civilian Police Commission (the “Commission”). The Commission affirmed the finding of misconduct. Constable Jacobs then applied for judicial review in the Ontario Divisional Court, but the Court dismissed his application. Constable Jacobs appealed the dismissal to the Ontario Court of Appeal.

The Court of Appeal focused on the discrete issue in the case: the standard of proof applicable to a finding of misconduct under section 84(1) of the Police Services Act. Section 84 includes the following language: “If at the conclusion of a hearing…misconduct…is proved on clear and convincing evidence…”. Constable Jacobs argued the Commission and Divisional Court erred in finding the standard of proof was on a balance of probabilities. He argued the standard was more stringent than a balance of probabilities, but less stringent than proof beyond a reasonable doubt.

In rejecting Constable Jacobs’ position, the Divisional Court relied on the Supreme Court of Canada decision in F.H. v. McDougall, 2008 SCC 53 as rejecting an intermediate standard of proof. The Court of Appeal held the Divisional Court erred in doing so because McDougall did not establish a universal standard of proof. The Court of Appeal emphasized that the legislature has the authority to create a specific standard of proof for a particular statute.

The Divisional Court also declined to follow the Supreme Court of Canada decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. In that case, the SCC addressed the different standard of proof in civil actions and Police Services Act hearings. The Court of Appeal held it was bound by the SCC’s statements in Penner and there was a higher standard of proof applicable to Police Services Act hearings.

The Court of Appeal granted the appeal and set aside the order of the Divisional Court. The matter was remitted to the Commission for further consideration.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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