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Police - Misconduct. 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.
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