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Charter - s.2(c) Freedom of Peaceful Assembly. Brisco v. Ontario Civilian Police Commission
In Brisco v. Ontario Civilian Police Commission (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer's JR, here against "a decision of the Ontario Civilian Police Commission, which upheld a hearing officer’s finding that he engaged in misconduct for making a donation to what the hearing officer found to be illegal protests in Ottawa and Windsor" and related penalty.
Here the court briefly deals with the applicant's Charter s.2(c) 'freedom of association' argument:[2] In January and February 2022, vehicles from across Canada arrived in downtown Ottawa in a protest related to the COVID-19 pandemic that became known as the “Freedom Convoy”. In early February, the Prime Minister and Ottawa Chief of Police made statements that the protests were becoming illegal and that the police did not have enough resources to control them. By February 7, 2022, protestors were blockading the Canada-US border crossing at the Ambassador Bridge in Windsor.
[3] At the time of the Freedom Convoy, Mr. Brisco was on an unpaid leave of absence because of his refusal to comply with a mandatory COVID-19 vaccination policy.
[4] On February 8, 2022, after the blockade of the Ambassador Bridge, Mr. Brisco donated $50 to support the Freedom Convoy through a fundraising website. Mr. Brisco made the donation anonymously from his personal computer. A computer hacker obtained and publicized a list of donors to the website. The Ontario Provincial Police received the list and advised the WPS of Mr. Brisco’s donation.
[5] Mr. Brisco was then charged with one count of discreditable conduct under the Code of Conduct, Ontario Regulation 268/10 under the Police Services Act, R.S.O. 1990, c. P.15 (the Act).[1] After a six-day hearing, a hearing officer found Mr. Brisco guilty of discreditable conduct. Following a further hearing, the hearing officer imposed a penalty of forfeiture of 80 hours of remuneration.
[6] Mr. Brisco appealed to the Commission, which dismissed the appeal. The Commission accepted the hearing officer’s finding that the protests were “illegal” at the time Mr. Brisco made his donation and declined to interfere with the hearing officer’s decision to accept media and police reports about the protests into evidence. The Commission also declined to consider Mr. Brisco’s argument that the investigation and prosecution amounted to an abuse of process because the issue was not raised before the hearing officer.
[7] Finally, the Commission agreed that, even though the analysis under Doré v. Barreau du Quebec, 2012 SCC 12, [2012] 1 S.C.R. 395 was not squarely raised before the hearing officer, he ought to have been alive to the need to balance Charter[2] values. The Commission itself undertook the Doré balancing and concluded any limitation on Mr. Brisco’s s. 2(b) Charter right to freedom of expression was outweighed by the public interest in enforcing the Act’s objectives.
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[9] .... Finally, the Commission was not required to consider the Charter value of freedom of assembly.
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Did the Commission err in failing to recognize and consider the Charter value of freedom of peaceful assembly?
[29] There is no merit to Mr. Brisco’s submission that the Commission erred in recognizing and considering the s. 2(c) Charter value of freedom of peaceful assembly. Mr. Brisco did not raise s. 2(c) rights before either the hearing officer or before the Commission. Nonetheless, he relies on Commission scolaire to say the Commission had an obligation to recognize and consider s. 2(c) in the balancing exercise.
[30] Mr. Brisco does not submit his own s. 2(c) rights were engaged. Instead, he argues that the Commission was required to consider the s. 2(c) rights of the Freedom Convoy protest participants. An administrative decision-maker is not required to consider a Charter value that is not relevant for the purpose of its decision: Commission scolaire, at para. 66. Here, there was no record before the hearing officer or Commission about the protesters’ s. 2(c) rights. Mr. Brisco also does not explain how a finding of professional misconduct against him engages the s. 2(c) rights of non-party protesters. There was no requirement for the Commission to address this issue.
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