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Police - Police Services Act - Ontario Civilian Police Commission (OCPC). Kent v. Durham Regional Police Service
In Kent v. Durham Regional Police Service (Ont Divisional Ct, 2025) the Divisional Court dismissed an unusual JR, this against an OCPC "discreditable conduct" finding against a police officer who had used a confidential 'suggestion box' to make "profane, abusive or insulting language to another member of the police force":[2] The underlying allegations arose from submissions that the Applicant made using a virtual suggestion box that had been established to get input about the EDI initiatives of the Durham Regional Police Service. The online welcome page said that the purpose was to seek input, feedback and advice from people at all levels about areas in which the Service could improve and to affect positive change in the Service. It said that it was 100% anonymous and completely confidential. The submission page clearly stated that the suggestion box was not a tool to submit internal complaints or grievances.
[3] Despite the above limit on the use of the suggestion box, the Applicant submitted several comments via the suggestion box that led to allegations of discreditable conduct and insubordination, addressed at a disciplinary hearing.
[4] At the hearing, the Applicant agreed that his submissions to the suggestion box met the definition of discreditable conduct, as profane, abusive or insulting language to another member of the police force. However, he brought an abuse of process motion and argued that his comments were privileged and confidential. After a hearing, the Hearing Officer found that the impugned comments fell outside the purpose of the suggestion box. The Hearing Officer found that the Applicant had engaged in discreditable conduct for using profane, abusive or insulting language to another member of the police force. The allegation of insubordination was dismissed. In the penalty phase, the Applicant was required to forfeit thirty hours of work.
[5] The Applicant appealed to the OCPC, which addressed all the grounds put forward by the Applicant, including those raised again on this application for judicial review. The appeal was dismissed.
[6] The Applicant relies on two grounds for this judicial review and submits that the standard of review is correctness. He submits that the overall process was unfair and an abuse of process because he was entrapped into making the comments and because his communications via the suggestion box were protected by the common law case-by-case privilege.
[7] In lengthy reasons for decision, the Commission addressed the appeal including grounds based on the brevity of the Hearing Officer’s reasons, in light of the entire record. The Commission held that it was clear that the Hearing Officer had turned his mind to the principles governing the abuse of process motion. The Commission found that the entrapment argument was exceptionally weak, noting that the Hearing Officer would have had to accept that the suggestion box was established to offer the Applicant an opportunity to commit misconduct.
[8] On privilege, the Commission referred what the Applicant agrees is the relevant test, as summarized in R. v. National Post, 2010 SCC 16. The Commission found that the Applicant’s comments, which he admitted amounted to profane, abusive or insulting language, bore little to no connection to the purpose of the suggestion box and the relationship that the Service sought to foster with its members by instituting it. The Commission considered the Hearing Officer’s reasons finding that the impugned comments fell outside the purpose of the suggestion box. The second branch of the test was therefore not established.
[9] We are not persuaded that the Commission made a reviewable error with respect to either of the above issues, regardless of the standard of review. The Commission’s reasons for decision on both issues set out the correct legal principles and apply those principles to the Hearing Officer’s decision without error. We adopt those reasons in all material respects. . 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 considers the applicant's freedom of expression argument, which turned on whether the protests were illegal:[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] For the following reasons, I would dismiss the application. The Commission did not err in accepting the hearing officer’s finding that the protests were “illegal”, as described in the notice of hearing. Because Mr. Brisco’s challenge to the Commission’s Charter s. 2(b) balancing rested on his argument that the protests were not “illegal”, the second ground of review also fails. I further conclude the Commission’s decision not to hear the abuse of process argument for the first time on appeal was reasonable. Finally, the Commission was not required to consider the Charter value of freedom of assembly.
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Did the Commission err in finding the WPS had shown the protests were illegal on clear and convincing evidence?
[13] Mr. Brisco submits the Commission erred in upholding the finding that the protests were illegal. He says that the protests could not be “illegal” if only a subset of the activity was illegal. He further submits that they could not be declared illegal by a public official not authorized to make that declaration. In Mr. Brisco’s submission, a protest could only be illegal if determined to be so by a competent decision-maker under a particular law, such as a finding under the Criminal Code, R.S.C. 1985, c. C-46 or a declaration under the Emergencies Act, R.S.C. 1985, c.22 (4th Supp). He submits that to the extent the Commission applied a narrower meaning of illegality, such as that some of the activities forming part of the protests were illegal, the notice of hearing did not provide proper notice of the nature of the allegation.
[14] The Commission did not err in upholding the finding of illegality. The evidence before the hearing officer included evidence of illegal activity within the protests, such as that the protests included violence and that a judge in Ottawa had issued a civil injunction ordering truckers to cease blowing their horns. There was no dispute that the Ambassador Bridge had been blockaded. There was evidence before the hearing officer of a connection between the blockade and the Freedom Convoy.
[15] There was also evidence that these were not a few isolated incidents in the context of largely lawful protests. Instead, there were repeated references in the evidence to the protests becoming an “occupation”. There was also evidence that the Ottawa police did not have enough resources to control the protests.
[16] I do not agree that the only way to find a protest illegal would be if a different decision-maker had made such a declaration. Because of the significant unlawful acts impeding normal functioning in Ottawa and cross-border traffic from Windsor, it was open to the hearing officer to characterize the protests as “illegal”. The Commission did not err in refusing to interfere with the hearing officer’s conclusion.
[17] The Commission also reasonably declined to interfere in the hearing officer’s decision to admit media reports and public statements into evidence. Section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.122 empowers tribunals like the Commission to admit as evidence documents that would be inadmissible in court, such as those that constitute hearsay. Mr. Brisco did not object to the admissibility of the evidence of illegality from the media reports and public statements before the hearing officer. Indeed, he relied on similar evidence to support his position that the protests were largely legal. The Commission also noted that Mr. Brisco did not point to any specific inaccuracy in the reports that he alleges the hearing officer should not have relied on. In these circumstances, it was reasonable for the Commission to uphold the hearing officer’s admission of the documents.
[18] I also reject the submission that Mr. Brisco did not have adequate notice of the allegation against him. Fairness requires that a police officer receive adequate notice of the allegations they will have to defend. In this case, the notice of hearing alleged that Mr. Brisco engaged in discreditable conduct by making “a monetary donation to support the illegal protests and occupations resulting from the Freedom Convoy movement in both Ottawa and Windsor.” Mr. Brisco now suggests that, based on this wording, he was only on notice that the protests were illegal in the sense that another decision-maker had declared them to be illegal. But the notice of hearing does not particularize the meaning of “illegal” in that manner. Further, a notice of hearing does not need to specify the precise route to liability: Barrington v. Institute of Chartered Accountants (Ontario), 2011 ONCA 409, 333 D.L.R. (4th) 401, at paras. 46, and 52.
[19] Mr. Brisco received disclosure of the material that the WPS intended to rely on in advance of the hearing. He would have been aware that the WPS intended to prove illegality through public statements and media reports about the protests. He also did not object to a lack of notice either before or during the hearing. In these circumstances, there was no breach of procedural fairness.
Did the Commission err in concluding the limitation on Mr. Brisco’s freedom of expression was proportionate?
[20] The crux of Mr. Brisco’s submission regarding the Commission’s s. 2(b) balancing is that it placed excessive weight on the finding that the protests were illegal. In his submission, if the protests were not shown to be illegal, the Commission’s weighing becomes unreasonable.
[21] I agree that the Commission’s analysis rests in part on the finding of illegality. The Commission accepted that the professional misconduct finding limited Mr. Brisco’s s. 2(b) rights because the donation constituted political expression. However, the Commission found that his expressive activity undermined the objectives of adequate and effective policing services and maintaining confidence in policing. This was both because the protests were illegal and because, at the time Mr. Brisco donated, the protests had exhausted police resources to control them.
[22] However, as set out above, I would not interfere with the finding of illegality. The Commission appropriately weighed Mr. Brisco’s expressive conduct against the illegality of the protests and the fact that they had exhausted police resources to control them. The Commission’s weighing of the interference with s. 2(b) rights against the objectives of maintaining policing services and confidence in policing was reasonable. . Cudney, #254 v St. Thomas Police Service
In Cudney, #254 v St. Thomas Police Service (Div Court, 2023) the Divisional Court considered the test for 'discreditable conduct' of a police officer:3. Did the facts as found by the Hearing Officer meet the test for discreditable conduct
[32] The OCPC reviewed the test for a finding of discreditable conduct as set out by the Hearing Officer: whether a reasonable member of the community, fully aware of the facts, would find that the conduct would likely discredit the reputation of the St. Thomas Police Service if it were to become public knowledge.
[33] The OCPC noted that the Hearing Officer expressly stated that, in the absence of evidence as to the expectations of the community, he was required to use his own judgment and place himself in the position of a reasonable person fully apprised of the facts to determine if the test had been met.
[34] The OCPC reviewed the Hearing Officer’s application of the test to the facts and his conclusion that the applicant “needlessly used physical force on Cathy and that a reasonable person would agree that this conduct would damage [the] reputation of the St. Thomas Police Service.” The OCPC concluded that “based on the evidence before [the Hearing Officer], this was a reasonable conclusion.”
[35] In my view, given the facts as found by the Hearing Officer and as confirmed by the OCPC on appeal, the OCPC’s decision to confirm the Hearing Officer’s conclusion that the test for discreditable conduct had been met was reasonable. . Cudney, #254 v St. Thomas Police Service
In Cudney, #254 v St. Thomas Police Service (Div Court, 2023) the Divisional Court considered a police discipline JR against an appeal ruling of the Ontario Civilian Police Commission (OCPC). In this quote the court sets out the SOR that applies to OCPC disciplinary sanction decisions:[5] The standard of review to be used by the Divisional Court when reviewing decisions of the OCPC is one of reasonableness on questions of fact, mixed fact and law, and on those questions of law that relate to the interpretation of the Commission’s home statute: Durham Regional Police Service v. Sowa, et. al., 2019 ONSC 1902 at para. 22 citing Ottawa Police Service v. Diafwila, 2016 ONCA 627, at para 52.
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[9] It is settled law that a high degree of deference is owed on judicial review of a tribunal’s choice of penalty. The reasonableness of the OCPC’s decision to confirm the Hearing Officer’s choice of penalty must be assessed considering the deference owed on penalty.
[10] In Dr. Jonathon Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), this court commented at paras. 17-18 on the high threshold for overturning a tribunal’s penalty decision:It is well established that in order to overturn a penalty imposed by a regulatory tribunal, it must be shown that the decision-maker made an error in principle or that the penalty was “clearly unfit”. The courts in the criminal context have used a variety of expressions to describe a sentence that reaches this threshold, including “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases. This high threshold applies equally in the administrative law context. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. [11] Accordingly, this court applies a reasonableness standard to the OCPC’s review of the Hearing Officer’s choice of penalty. In doing so, regard must be had for the high threshold to be met before the OCPC will interfere with a Hearing Officer’s choice of penalty. . Wells v. Cornwall Police Service
In Wells v. Cornwall Police Service (Div Court, 2022) the Divisional Court heard a JR of an appeal decision of the Ontario Civilian Police Commission, here regarding the termination of a police officer for misconduct. This quote deals with the penalty decision:The Disposition
[22] The applicant’s submission on penalty is framed and reframed in several ways with multiple reasons. However, his submissions all come down to an assertion that termination of employment is unreasonable because it is unduly and unnecessarily harsh. He points to mitigating facts and circumstances, the Commission’s failure to specifically address the “ladder” principle, an undue emphasis on a previous misconduct disposition and the Commission’s “rejection” of the Hearing Officer’s conclusion that the public would be “shocked” if Constable Wells were allowed to remain on the police force given his misconduct history.
[23] The applicant acknowledges that the standard of review on penalty sets the bar quite high. Before the Commission, he must demonstrate a “clear error in principle” or that relevant material facts were “not considered”. See Karklins v Toronto (City) Police Service, [2010] ONSC 747 at para. 10. The Commission is not to second guess the Hearing Officer’s decision even if it might have imposed a different penalty, unless the Hearing Officer failed to fairly or impartially apply the considerations listed by both the Hearing Officer and the Commission in their respective decisions. Again, this Court must determine whether the Commission reasonably upheld the penalty decision.
[24] The “ladder principle”, in employment law probably more appropriately labelled as the principle of progressive discipline, does not rule out termination of employment for new misconduct that is less serious than prior misconduct. The Hearing Officer and the Commission both demonstrate in their reasons an understanding that the incidents occurring on this one shift in September 2018 were not so serious as to warrant termination of employment but for the very serious prior misconduct and the penalty imposed for that misconduct. The applicant had been found to have committed serious misconduct in a 2016 decision and he was demoted from Constable Fourth Class to Constable First Class – the most serious penalty short of dismissal. In the present proceeding, problems of honesty, integrity and trustworthiness were regarded as persisting problems.
[25] Though the Commission did “not necessarily agree” with the word “shocked” in the Hearing Officer’s characterization of how the public would perceive the continued employment of Constable Wells, it nevertheless agreed with him that there was a “potential for damage” to the reputation of the Police Service in continuing his employment.
[26] The Commission addressed all the applicant’s other specific challenges to the Hearing Officer’s decision in detail and explained (paras. 49 to 67) its conclusion that “the Hearing Officer did not make such errors in principle that would justify our interfering with the penalty imposed”. It is unnecessary for the court to repeat paras. 49 to 67 of the Commission’s reasons. Suffice it to say the Commission explained why the Hearing Officer’s decision to terminate Constable Wells’ employment was “reasonable”. Its explanation also meets the reasonableness standard and is entitled to deference on judicial review.
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