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Police - Freedom of Expression. 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. . Zarabi-Majd v. Toronto Police Service
In Zarabi-Majd v. Toronto Police Service (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer-brought JR, this against a dismissed appeal by the Ontario Civilian Police Commission, that against a TPS discipline hearing finding that the applicant "was found guilty of four counts of discreditable conduct and four counts of insubordination, and was dismissed from the TPS".
Here the court consider an administrative Charter s.2(b) ['freedom of expression'] by a police officer professional:c. The Commission’s finding that Ms. Zarabi-Majd’s dismissal is a proportionate limit on her freedom of expression is reasonable.
[50] Having found that the Commission was correct that ss. 7 and 15 were not engaged, the remaining question is whether the Commission’s decision upholding Ms. Zarabi-Majd’s dismissal is reasonable. To be reasonable, the decision must reflect a “proportionate balancing” of her Charter rights and the statutory objectives of the Police Services Act: Commission scolaire francophone at para. 67. The decision must also show that the Commission meaningfully considered the impact its decision might have on others: Vavilov, at paras. 128 and 133.
[51] The Commission made no error in finding that the objectives of the Police Services Act are to ensure transparency and enhance public confidence in policing: Figueiras v. (York) Police Services Board, 2013 ONSC 7419 at para. 54. The restrictions in the TPS Policy and Standards of Conduct on the use of social media by officers are consistent with the objectives of the Police Services Act. The Commission found that Ms. Zarabi-Majd was aware of the limits placed on her social media use by the TPS Policy and Standards of Conduct when she took oath to become a police officer.
[52] The Commission also made no error in finding that Ms. Zarabi-Majd was not punished for her use of social media generally. Rather, Ms. Zarabi-Majd was punished only for those posts that violated the TPS Policy and Code of Conduct, and undermined public confidence in the TPS. Under the Police Services Act, an officer cannot be disciplined for misconduct while off duty unless there is a connection between the conduct and “the occupational requirements for a police officer or the reputation of the police force”: Police Services Act, R.S.O. 1990, c. P.15, s. 80(2).
[53] Despite finding that ss. 7 and 15 were not engaged in this case, the Commission fully considered Ms. Zarabi-Majd’s argument that her Twitter posts were intended to raise awareness about the TPS work environment and expose TPS wrongdoing. The Commission considered and rejected Ms. Zarabi-Majd’s argument that her Twitter posts had significant public value that were intended to promote the objectives of the Police Services Act, including maintaining public confidence in policing. The Commission found that Ms. Zarabi-Majd’s argument was an attempt to relitigate the factual findings made by the Hearing Officer.
[54] The Commission also rejected Ms. Zarabi-Majd’s argument that she had no way other than Twitter to address her concerns about misconduct within the TPS. That finding was reasonable.
[55] Finally, the Commission considered and rejected Ms. Zarabi-Majd’s argument that punishing her for her Twitter posts would discourage other TPS employees from reporting harassment within the Service. The Commission found that, given the “exceptional circumstances” of Ms. Zarabi-Majd’s matter, including the content and volume of her posts as well as the very public nature of her criticisms, her dismissal from the TPS would not impact the reporting of harassment through appropriate channels.
[56] In the end, the Commission found that Ms. Zarabi-Majd’s dismissal was proportionate. On the one hand, the Commission found that Ms. Zarabi-Majd’s dismissal from the TPS would not have a chilling effect on the expressive rights of other officers beyond the limits imposed by the Police Services Act and the TPS policies. On the other hand, the Commission found that the findings of misconduct and Ms. Zarabi-Majd’s dismissal were “necessary to protect public confidence in policing.”
[57] We see no basis to interfere with the Commission’s conclusion that the penalty was a proportionate limit on the values underlying freedom of expression in light of the objectives of the Police Services Act. . Zarabi-Majd v. Toronto Police Service
In Zarabi-Majd v. Toronto Police Service (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer-brought JR, this against a dismissed appeal by the Ontario Civilian Police Commission, that against a TPS discipline hearing finding that the applicant "was found guilty of four counts of discreditable conduct and four counts of insubordination, and was dismissed from the TPS".
Here the court considers a police policy regarding professional freedom of expression:[46] The TPS Policy governing social media use by its members permits officers to make public comments about political, community and social issues in their personal capacity. However, the policy prohibits officers from posting information that “may compromise the integrity and good reputation of the Service.” The TPS Standards of Conduct prohibit its members from making public comments that “amount to criticism of the Service or the Board” or that “amount to a personal attack on the character or integrity of an individual.”
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