Police Newsletter

November 2016


OCPC Upholds Immediate Dismissal of Toronto Constable for Assaulting a Handcuffed Prisoner 

In Gould and Toronto Police Service, the Ontario Civilian Police Commission (the “Commission”) upheld the immediate dismissal of a Toronto Police Service constable who assaulted a member of the public in police custody. Even though the Hearing Officer made a number of errors, the Commission did not see fit to interfere with her decision to impose the most severe penalty possible.

In the early hours of December 29, 2013, Cst. Gould was called to a gas station after an intoxicated man, Christopher Milani, urinated inside the gas station and assaulted one of its employees. Cst. Gould and his partner arrested and handcuffed Mr. Milani, who continued to behave belligerently, kicking the inside of the police cruiser and spitting at the officers. Cst. Gould confronted Mr. Milani, saying “spit in my face, I fucking dare you”. After Mr. Milani obliged Cst. Gould’s request, Cst. Gould entered the police cruiser and hit Mr. Milani several times, including on his face. Cst. Gould subsequently reported the incident to his supervisor.

Cst. Gould pleaded guilty to one count of assault under the Criminal Code in respect his attack on Mr. Milani. He then pleaded guilty to one count of discreditable conduct under the Police Services Act before a Hearing Officer, Superintendent Debra Preston. Supt. Preston acknowledged that Mr. Milani was behaving in a “vile and disgusting” manner before Cst. Gould attacked him, but that even such extremely anti-social behaviour by an aggressive drunk did not displace the officer’s obligation to remain professional and tolerant in the course of his duties. In her words:

I find that [Cst. Gould] does not possess the requisite character attributes necessary to continue to hold a position of public trust and public office. I do not find that he is capable of continuing to protect the public based on his provoked assault of a handcuffed and vulnerable member of the public. There is no room in … law enforcement for anyone who would beat a handcuffed prisoner.

If [Cst. Gould] were allowed to return to work, even with a demotion to 4th Class Constable, it would send a message to other officers that if they assaulted a handcuffed prisoner in their care and control, they can still wear the uniform.

This would send the wrong message to the community.

Supt. Preston dismissed Cst. Gould with immediate effect. Cst. Gould appealed the penalty decision to the Commission, arguing that the Hearing Officer misunderstood or overlooked the evidence and failed to give it proper weight, that that she failed properly to weigh mitigating factors, and that she misapprehended the law on disciplinary penalties.

The Commission accepted that there were a number of errors in Supt. Preston’s decision. She incorrectly stated that Cst. Gould pleaded guilty in a number of proceedings, when the evidence did not support that conclusion. She also attributed a quotation to Cst. Gould that, on review of the evidence, was inaccurate. Supt. Preston also referred to Cst. Gould’s lengthy suspension in respect of an incident involving another officer that did not result in a disciplinary or criminal conviction. The Commission noted that while that suspension should not have played any part in the Hearing Officer’s decision, neither this nor any of the other errors was sufficiently serious to warrant the Commission’s interference with her decision. Rather, the reasoning given by Supt. Preston in imposing the most severe penalty available supported that outcome, and the penalty fell within the range of reasonable responses in all the circumstances. Accordingly, the Commission dismissed Cst. Gould’s appeal and upheld his dismissal.

This case emphasizes the dim view taken by the Commission of police violence against members of the public who are in police custody. As we reported in our March 2016 newsletter, the Commission also upheld the immediate dismissal of an officer for excessive use of force against handcuffed members of the public in Turpin and the Durham Regional Police Service. In that case, as in this one, there was simply no justification for the subject officer’s attack on a prisoner who posed no physical threat. The Commission’s decision in this case also provides a useful illustration of the deference the Commission will show to a Hearing Officer’s reasoning. Despite acknowledging that the Hearing Officer misapprehended elements of the evidence before her, the Commission ultimately concluded that her reasons adequately supported the penalty imposed. 

Human Rights Tribunal Dismisses Claim That Police Service Committed Discrimination in Responding to Domestic Violence Complaint

In Noble-Gresty v Durham Regional Police Services Board, the Human Rights Tribunal of Ontario summarily dismissed a complaint that an officer with the Durham Regional Police Service discriminated against an individual in responding to a complaint by his former partner.

Barry Noble-Gresty’s romantic relationship with his fiancé fell apart in May 2014. Just over a year later, the former fiancé found a letter from Mr. Noble-Gresty on her car at work. The letter demanded the return of several items of property, as well as a sum of money. The former fiancé found the letter to be intimidating and contacted the police, who dispatched Cst. Gordon Dicresce. Cst. Dicresce investigated the matter and informed Mr. Noble-Gresty that although the matters raised in the letter were not a police matter, Mr. Noble-Gresty could face criminal harassment charges if he continued to contact his former fiancé.

Mr. Noble-Gresty brought an application under the Human Rights Code alleging that Cst. Dicresce’s actions amounted to discrimination on the basis of family status and marital status. Johnstone & Cowling LLP, acting for the Service and Cst. Dicresce, sought dismissal of the application at a summary hearing on the basis that there was no reasonable prospect that the application would succeed.

The Tribunal adjudicator, Jennifer Khurana, recalled that for a human rights application to proceed, the applicant must be able to point to some evidence, beyond his or her own suspicions, that could establish a link between detrimental treatment and a protected characteristic under the Code. An applicant’s mere belief or suspicion is not evidence upon which the Tribunal may find that discrimination has occurred, no matter how strongly that belief is held.

Turning to the facts of this case, Mr. Noble-Gresty’s discrimination complaint rested on his contention that the police would have treated him differently had he and his former fiancé been married. Specifically, he argued that the police would not have contacted him if the complainant was his former spouse, rather than an ex-girlfriend. The Tribunal rejected this contention. There was absolutely no evidence that Cst. Dicresce treated Mr. Noble-Gresty differently on the basis of his marital status. Cst. Dicresce was duty-bound to attend to the complaint relating to a domestic incident, and the scope of the Service’s directive on domestic violence was not limited to married persons. There was absolutely no reason to indulge Mr. Noble-Gresty’s “bald and unsupported” allegations. Accordingly, the application was dismissed.

The outcome in this case demonstrates the importance of putting in a robust defence in even the most spurious of human rights claims. The explanation presented to the Tribunal by the Service in this case was obviously persuasive, even though, for the purposes of the summary hearing, the Tribunal accepted the facts as alleged by Mr. Noble-Gresty. This case also demonstrates the Tribunal’s willingness to halt an application in its tracks where there is no reasonable prospect that it will succeed, although it is important to note that not every weak case is weeded out through the summary hearing procedure. 

BC Arbitrator Partially Upholds Order Barring Officer from Continuing Relationship with Former Criminal 

In Abbotsford Police Board v Abbotsford Police Association, an arbitrator upheld, in part, a grievance challenging a police chief’s order that required a police officer to refrain from having any contact with her lover, a former criminal. Although, immediately upon becoming aware of the nature of the relationship, the Chief was justified in imposing a no-contact order while the situation was being investigated, once that investigation was complete, the Chief had a duty to consider less intrusive alternatives to a total ban on conduct, and to consult with the officer before interfering further with her personal life.

Detective B, an accomplished officer with the Abbotsford Police Service in British Columbia, entered into an intimate relationship with A in early March 2015. A had criminal convictions for drug-related offences in the United States, which were linked to organized crime. The organizations with which A was associated were known to resort to violence, and to have corrupted law enforcement officials in the past.

The Service had a policy requiring officers who had security concerns relating to individuals with whom they involved in an intimate relationship to forward those concerns through the chain of command to the corporate services unit. Det. B was not initially aware of this policy. She conducted a background check on A, as she was concerned about his previous criminality, but was reassured when the check disclosed no evidence of continuing unlawful behaviour. Det. B nevertheless made enquiries within the Service and eventually disclosed her relationship with A.

After the Chief Constable became aware of the relationship, he made an order on March 23, 2015 prohibiting Det. B from having any contact with A while the Service conducted an investigation into whether A posed a security concern. The Service carried out the investigation contemplated in the March order and found no evidence that A was still involved in criminal activities. However, the Chief took the view that there was no guarantee that A would lead a permanently crime-free life. On May 2, 2015, the Chief issued a revised order banning Det. B from contacting A on an indefinite basis. The May order stated that Det. B. “does not display the strength of character needed if something goes sideways in this relationship”, and that there was a risk that if A were to revert to criminal behaviour, A could not be relied upon to safeguard the Service’s interests. The May order was premised in part on the fact that Det. B breached the March order by contacting A on a number of occasions.

Det. B continued to breach the May order by contacting A and, following disciplinary proceedings in July 2015, the Chief imposed a penalty of removal of Det. B’s senior detective designation and an attendant reduction in pay of five per cent, as well as 12 days’ unpaid suspension.

The Abbotsford Police Association grieved both the March and May orders and the disciplinary measures that flowed from Det. B’s breach of those orders. The Association argued before Arbitrator Arne Peltz that the orders amounted to an unjustifiable breach of Det. B’s rights to freedom of expression and association under the Canadian Charter of Rights and Freedoms, and that the orders should be revoked and the disciplinary penalties lifted.

Arbitrator Peltz noted that discretionary administrative law decisions must be made in a manner that conforms to the requirements of the Charter. As the Supreme Court of Canada held in Dore v Barreau du Quebec, the test in a constitutional challenge to an administrative decision was “has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right?”.

Turning to the facts of this case, the March order was made in circumstances that were akin to an emergency. The relationship with A, whose past was coloured by associations with corrupt practices, had the potential to strike at the heart of the Service. The discovery of the relationship gave rise to pressing and legitimate concerns. While the March order undoubtedly infringed Det. B’s Charter rights, the infringement was temporally limited to the duration of the investigation. The March order was, therefore upheld.

The May order was, however, a different matter altogether. Once the investigation was complete, the Service was in a position to conclude that the immediate threat had receded, as there was no evidence of continuing wrongdoing on the part of A. Before continuing the order indefinitely, the Chief was required to explore whether less intrusive measures were available. The Chief rejected all such measures on the basis of Det. B’s untrustworthiness, but made no attempt to consult with Det. B or the Association in order to substantiate his concerns about her reliability. Accordingly, the May order was a disproportionate and unreasonable infringement of Det. B’s constitutional rights, and was void.

Turning to the disciplinary measures, because the penalty was based in part on breaches of the void May order, it was excessive. Arbitrator Peltz substituted a five-day suspension, and provided for an automatic restoration of Det. B’s senior detective designation one year after the date it was removed.

This interesting case demonstrates the approach adjudicators will take when assessing the constitutionality of discretionary administrative decisions. Decision makers such as police chiefs will be accorded a degree of deference in carrying out their statutory mandates, but will remain constrained by their obligation not to infringe upon Charter rights in an unjustified or disproportionate manner. Where intrusive measures that affect an officer’s personal life are imposed, police services should be prepared to justify those measures as proportionate responses to legitimate operational concerns. 

Newfoundland Court of Appeal Upholds Lawfulness of Search, Despite Unlawful Investigative Detention

In R v Squires, a majority of the Newfoundland and Labrador Court of Appeal held that although the police violated a suspect’s right to be free from arbitrary detention by using excessive force in carrying out an investigative detention, a search that took place at the time of such detention was nevertheless lawful by operation of the plain view doctrine, and also as a search incident to arrest.

On July 31, 2014, police in St John’s, Newfoundland, received an anonymous tip alerting them that there was a man in a black jeep at a community centre who was in possession of a firearm. An officer arrived at the location in question and saw a man, later identified as John Squires, in a black SUV. The officer drew his gun and demanded that Mr. Squires put his hands outside the car window. Mr. Squires immediately complied. A second officer arrived on the scene, drew her gun, and ordered Mr. Squires to lie down on the ground. She handcuffed him and placed him in her police cruiser. Mr. Squires admitted to the officer that there was a firearm in his SUV.

Meanwhile, the first officer, who did not know about Mr. Squire’s statement to the effect that there was a gun in his car, examined the interior of Mr. Squires’ SUV through the window and saw the gun. The gun was seized, along with ammunition that was also in the car, and Mr. Squires was arrested for unsafe handling of a firearm. He was ultimately charged with a number of firearms offences.

At trial, the judge concluded that Mr. Squires’ detention amounted to breach of section 9 of the Canadian Charter of Rights and Freedoms, which prohibits arbitrary detention, and that the search of his vehicle violated his right to be free from unreasonable search and seizure under section 8. The trial judge excluded the gun and ammunition and acquitted Mr. Squires on account of a lack of admissible evidence.

The Crown appealed Mr. Squires’ acquittal to the Newfoundland and Labrador Court of Appeal, where a majority of the Court reversed the acquittal and ordered a new trial.

Chief Justice Green, writing for three of the four judges in the majority, agreed with the Crown that it was reasonable for the police to effect an investigative detention of Mr. Squires on the basis that he was connected with an alleged firearms crime, and that he matched the description set out in the anonymous tip. However, the Chief Justice recalled that in the context of an investigative detention, the curtailment of the suspect’s liberty must be no more intrusive than what is reasonably necessary to address any risks to the police or public. Although it was reasonably necessary to detain Mr. Squires, it was not necessary to order him to the ground at gunpoint, handcuff him, or place him in a police vehicle, before carrying out a search for weapons. Accordingly, the police used excessive force in carrying out the investigative detention, thereby violating Mr. Squires’ rights under section 9 of the Charter.

Moving on to consider the lawfulness of the search that revealed the gun and ammunition, the majority noted that the search could not be justified as incident to the unlawful investigative detention. However, against the background of the anonymous tip, when the first officer saw the gun through the car window, he acquired reasonable and probable grounds for arrest. The search could therefore be validly characterized as a search incident to arrest, and was therefore lawful under section 8.

Further, the search could also be justified under the plain view doctrine, which holds that when the item in question is in plain sight of the person carrying out the search and seizure, and the item is potentially related to the matter being investigated, the item may be seized without violating section 8. In arriving at his decision that the search was justified, the Chief Justice remarked that it was not a requirement in every case in which the police seek to rely on the plain view doctrine that the evidence be discovered inadvertently. There was a conflict in the Canadian jurisprudence on this point and, in the absence of a clear statement of the law from the Supreme Court of Canada, Chief Justice Green was satisfied that inadvertence was not a strict requirement of the plain view doctrine:

So long as the police are lawfully in a place from where the viewing can take place without invading the suspect’s zone of territorial privacy and the item is in plain view, it may be seized without a warrant. While the fact that discovery is inadvertent may reinforce the genuineness of police assertions supporting plain view, it need not be a stand-alone requirement.

This judgment is not binding outside of Newfoundland and Labrador, but may nevertheless provide persuasive authority where police seek to rely on a less strict application of the plain view doctrine. Notably, in R v LF, the Ontario Court of Appeal also cast doubt on the requirement of inadvertence. It is likely that the Supreme Court of Canada will be called upon to resolve the components of the plain view doctrine at some point, even if the defence does not appeal the Court of Appeal’s judgment in this case. 

This newsletter is for general discussion purposes and does not constitute legal advice or an opinion. For legal advice regarding your particular circumstances, please contact us at 416 546 2103.

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