Late last week, the provincial government tabled Bill 175, the Safer Ontario Act, which contained extensive provisions to overhaul policing in Ontario. The Bill makes changes to a number of pieces of legislation, including the Police Services Act, which had been in place for twenty-seven years.  The proposed legislation includes changes to the civilian oversight regime, allows for police officers to be suspended without pay in certain circumstances, provides for greater SIU powers of investigation, and provides for the creation of the Ontario Policing Complaints Agency and the Ontario Policing Discipline Tribunal (hereinafter the “Discipline Tribunal”) to replace the Office of the Independent Police Review Director (OIPRD) and Ontario Civilian Police Commission (OCPC) respectively.

The 417-page proposed legislation emerged from extensive public consultation and is aligned with the recommendations put forward by the Honourable Michael H. Tulloch in his March 31, 2017 Report of the Independent Police Oversight Review.  Justice Tulloch’s recommendations, as well as the proposed legislation, purports to be a balance between the public’s interests and the interests of police services, police service boards, and police officers.

In my review of the proposed legislation, I was interested to see if the legislative drafters would alter the “clear and convincing” standard for officer misconduct in the current Police Services Act. As a workplace investigator who conducts human rights investigations using the lower balance of probabilities standard, I was curious as to whether or not the higher standard of clear and convincing would be changed for police officers.

Background on Clear and Convincing in Policing

Under the current Police Services Act, the OCPC, the chiefs of police, or the police board has the authority to impose a penalty if they conclude on clear and convincing evidence that an officer’s actions were misconduct or unsatisfactory work performance (Sections 25 (4), 84(1), 84(2), 84 (3)). The legislation also specifies that misconduct or unsatisfactory work performance can only be documented on an officer’s employment record if the clear and convincing standard has been met (Section 85 (9) (a)).  The phrase “balance of probabilities” does not appear anywhere in the current legislation.

This “clear and convincing” wording was examined by the Ontario Court of Appeal in Jacobs v. Ottawa (Police Service), 2016 ONCA 345 (hereinafter Jacobs). The Court of Appeal overturned three previous levels of adjudication: the guilty decision of the Ottawa Police Hearing Officer, the OCPC decision that reviewed and agreed with the Hearing Officer’s decision, and the Divisional Court decision that reviewed and agreed with the OCPC decision. The Court of Appeal overturned the Divisional Court decision and made a determination that police officers were held to a standard of proof that is somewhere between the criminal standard of beyond a reasonable doubt and the balance of probabilities in civil proceedings.  As per Hourigan J.A.:

“In my view, we are bound by the Supreme Court’s statement in Penner that the standard of proof in PSA hearings is a higher standard of clear and convincing evidence and not a balance of probabilities.”

The Supreme Court of Canada dismissed an appeal of the Jacobs decision.  Starting in May 10, 2016, the Court of Appeal decision was the common law.

Difficulties with the Jacobs decision and the Application to Human Rights Investigations in Police Services

The Court of Appeal decision in Jacobs made it difficult to know which was the appropriate standard of proof in human rights investigations within the Ontario policing sector. While typical human rights investigations require that findings of harassment or discrimination be made on a balance of probabilities, the concern was the application of the higher standard of proof endorsed in the Jacobs decision. The primary concern was that a factual finding reached on the balance of probabilities under the human rights standard might not meet the clear and convincing standard under the direction required from Jacobs.  It was confusing for investigators to know which standard to apply if they were not certain whether or not the matter would end up in the Police Services Act disciplinary process which required the clear and convincing standard.

Changes to the Standard of Proof in the Draft Legislation

The draft legislation put forward last week has provided some resolve to this issue.   The phrase “clear and convincing” is no longer in the legislation.  Instead, under the proposed changes to the Police Services Act as well as the brand new legislation, the Policing Oversight Act, 2017, the balance of probabilities is the new standard of proof:

1. 1. in section 115 (9) of the proposed Police Service Act changes, with respect to the accommodation of disabled officers, arbitrators are entitled to make a decision on the balance of probabilities as to whether or not the police service board or Commissioner have met their accommodation requirements.
   2. in section 145 (10) of the proposed Police Services Act changes, the new Discipline Tribunal can overturn a disciplinary measure imposed, if the chief of police, police service board or Minister who imposed the measure cannot show on the balance of probabilities that the disciplinary measure was appropriate.
   3. In section 146 of the proposed Police Services Act changes, where a chief of police has applied to the Discipline Tribunal to hold a hearing, and the Discipline Tribunal makes a determination that on the balance of probabilities the chief has shown that the police officer engaged in conduct that constitutes professional misconduct, workplace misconduct or unsatisfactory work performance[1], the Discipline Tribunal may make an order to:
      1. Terminate the police officer’s employment.
      2. Direct that the police officer’s employment be terminated in seven days unless he or she resigns before that time.
      3. Demote the police officer, specifying the manner and period of the demotion.
      4. Impose a disciplinary measure.

1. 1. In section 15 (14) of the proposed Police Services Act changes, the Discipline Tribunal may overturn a decision to impose a suspension without pay if the officer is able to show on a balance of probabilities that the criteria for imposing the suspension without pay were not met.
   2. In Section 87(1) of the new Police Oversight Act, 2017, if the Discipline Tribunal determines on a balance of probabilities that the conduct of the police officer or special constable constitutes professional misconduct, it can impose a number of orders, including reprimand, imposing terms or conditions, suspending the officer’s appointment for up to 24 months, or revoking the appointment.

What this means for workplace investigations in policing

The proposed policing legislation provides clarity that the standard of proof for discipline is the same as the balance of probabilities standard used in human rights investigations. This is good news for workplace investigators who were concerned that their findings in a human rights investigation would not meet the higher “clear and convincing” standard if the matter proceeded to a police discipline hearing.

Jennifer White

About the Author: Ottawa-based lawyer Jennifer White has extensive experience in police labour relations and harassment issues.  Jennifer conducts workplace investigations into allegations of harassment and workplace violence, code of conduct violations, bullying, poisoned work environments, and other problematic workplace behaviour. Jennifer also provides workplace investigation and human rights training to staff at all levels.

[1] The proposed legislation also refers to professional misconduct and workplace misconduct, however these categories are not further defined. Under the current Police Services Act, the Code of Conduct under Regulation 268/10 provides for a number of inappropriate behaviours that would be considered misconduct under the legislation.