Police Newsletter

December 2016


OCPC Appoints Administrator to Oversee Governance at Peterborough Police Services Board

In the latest development in the ongoing governance issues relating to the Peterborough Police Services Board (the “PPSB”), on December 13, 2016, the Ontario Civilian Police Commission (the “OCPC”) appointed an administrator to ensure that the Board carries out its statutory mandate under the Police Services Act (the “PSA”).

On March 8, 2016, the Ontario Minister of Community Safety and Correctional Services requested that the OCPC investigate the PPSB’s ability to discharge its statutory responsibilities, in light of its continuing struggle to do so. The OCPC’s investigation revealed that the PPSB suffered from an “ongoing dysfunction”, which it described in the following terms:

The current and ongoing investigation has produced a body of reliable evidence that the PPSB has been, almost from its formation in 2015, in a state of perpetual crisis. The ill will between some members of the PPSB, some members of council and the Peterborough Police Service is palpable and has been present for some time. It shows no signs of abating. The situation in Peterborough over the past few years has been characterized by highly public disputes.  Examples include disputes related to the dissolution of the former Peterborough-Lakefield Community Police Service, a dispute triggering a lengthy hearing by the OCPC into the conduct of the Mayor, and, most recently, a very public contractual dispute between the PPSB and the Chief and Deputy Chief of Police, followed by a civil suit by the City of Peterborough against the Chief and Deputy Chief of Police. Based on the information collected, the OCPC is of the opinion that the PPSB has failed to comply with a number of statutory and regulatory responsibilities under the PSA. The PPSB has been unable to complete certain simple and routine statutory duties such as the finalization of a business plan.  It has also failed to set priorities and conduct a performance evaluation of the Chief and the Deputy Chief of Police. These failures raise urgent concerns about the PPSB’s ability to handle its broader responsibilities and to ensure that the public has confidence in the delivery of police services in the community.

The dysfunction of the PPSB amounted to an “emergency” for the purposes of section 24(1) of the PSA. That section permits the OCPC to, amongst other things, make an interim order appointing an administrator to perform specified functions with respect to police matters in the municipality for a specified period where such an emergency exists.

Accordingly, the OCPC appointed Mark Sandler, a criminal defence lawyer, as administrator of the PPSB for the period from December 16, 2016 to July 1, 2017. The administrator was vested with a number of functions, including: maintaining compliance with the PSA and its regulations; changing PPSB processes; establishing best practices for relations between the PPSB, the City of Peterborough and the Peterborough Police Service; and advising the PPSB about governance issues.

As reported in previous newsletters, and recognized in the OCPC order, the PPSB’s malaise has manifested itself in myriad ways, including its refusal in 2015 to pay contractual severance payments to the Chief and Deputy Chief, despite being ordered to do so by an arbitrator, as well as the OCPC’s decision earlier that year to remove Mayor Daryl Bennett as a PPSB member for misconduct. It is to be hoped that the appointment of Mr. Sandler as administrator will mark a shift towards better governance at the PPSB.


Human Rights Tribunal Rejects Claim that Police Services Board Discriminated Against Job Applicant on the Basis of Race and Age

In Hussain v Ottawa Police Services Board, the Human Rights Tribunal of Ontario dismissed a claim from an unsuccessful job applicant that he had been discriminated against on the basis of, amongst other things, his race and age. The Tribunal held that the police services board had put forth acceptable reasons demonstrating why it had selected the successful candidate for appointment.   

Syed Hussain was a former police officer with around 20 years’ experience as a senior officer in Pakistan, who also held graduate degrees in business administration and criminology. In August 2011, Mr. Hussain applied for the position of Evaluation and Research Co-ordinator with the Ottawa Police Service. Along with five other candidates, Mr. Hussain was interviewed before a three-member panel, and undertook a practical exercise that entailed delivering a presentation.

Mr. Hussain was not successful. The panel’s scores for the top three candidates were, however, very close: the successful candidate had a total score of 70.52, compared to Mr. Hussain’s score of 70.36 and the third-place candidate’s score of 69.29. The successful candidate was younger than Mr. Hussain, and was white, while Mr. Hussain was Asian. One area in which Mr. Hussain scored markedly lower than the successful candidate was fluency in spoken English.

After being rejected for the position, Mr. Hussain brought an application before the Tribunal alleging that the scoring during the interview process was discriminatory on the basis of Mr. Hussain’s race, colour, place of origin, citizenship, ethnic origin, creed and age. 

Following a hearing that extended over several days, Mark Hart, a Tribunal Vice-chair, dismissed Mr. Hussain’s application. Vice-chair Hart found that although Mr. Hussain scored lower in an interview question about using personal connections to obtain results in a business setting, there were legitimate, non-discriminatory reasons why the panel members had scored Mr. Hussain in the way that they did, notably that the successful candidate had described a scenario in which he made use of a greater number of personal connections than that put forward by Mr. Hussain. Vice-chair Hart also held that the panel did not discriminate against Mr. Hussain in its scoring of the presentation: Mr. Hussain’s slightly lower scores were adequately explained by his materials, which contained contradictions and were less clear than those prepared by the successful candidate.

The Tribunal then turned to the question of whether the lower score awarded to Mr. Hussain for fluency in spoken English was discriminatory. Vice-chair Hart declined to consider whether Mr. Hussain’s race played a role in that scoring, noting that even if it did, the score did not affect the result. Even if Mr. Hussain received the same score as the other candidates on that metric, he would still not have had sufficient points to displace the successful candidate.

Finally, the Tribunal dismissed Mr. Hussain’s argument that he was more qualified on paper as being ultimately irrelevant:

The applicant also raised an issue that the respondent’s hiring materials consistently refer to the objective of hiring the “most qualified” candidate, whereas in the applicant’s view, the competition resulted in the respondent [hiring] the “least qualified” candidate, or at least a candidate with [fewer] qualifications on paper than the applicant. There is no doubt that on paper, the applicant had superior academic credentials and police experience than the successful candidate. However, anyone who has been involved in a competition process that includes interview and practical exercise components has experienced situations where candidates with superior qualifications on paper have not performed as well at the interview and/or on a practical exercise. That appears to be what happened here.

This case demonstrates the importance of creating and maintaining detailed reasons underpinning the ranking of candidates in a recruitment or promotion exercise. The Tribunal engaged in minute scrutiny of the panel’s reasons for awarding each candidate’s scores, and ultimately accepted that the successful candidate’s scores were based on legitimate, non-discriminatory reasons. In the absence of sufficient supporting evidence, the employer in this case might have faced an uphill battle in explaining why Mr. Hussain’s application for the position was unsuccessful.

Arbitrator Dismisses Grievances Challenging Requirement That Officers Provide Medical Notes for All Sickness Absences 

In Cobourg Police Association v Cobourg Police Services Board, an arbitrator held that the police services board did not violate the collective agreement after the Chief required officers with a pattern of medical absences to submit medical reports for each further absence for the ensuing 12-month period. The medical note requirement was authorized under the collective agreement, on the basis that the Chief had reasonable concerns about the officers’ pattern of absences.

Constables Richard Ferguson, Larry Davis and Greg McCurdy, and Sergeant Jim Rutherford, were officers with the Cobourg Police Service. In June 2015, the officers were each provided with an e-mail from the Deputy Chief instructing them to provide sick notes on the basis that their sickness absence for the first half of 2015 exceeded the average sickness absence for all members of the Service in 2014.

Article 18 of the applicable collective agreement provided as follows:

18.01 a) A member who is absent from work for more than three consecutive working days shall supply a medical report on the form provided by the Board certifying the provision of medical care, providing a prognosis for return to full-duties and details of any accommodations necessary to permit the member to perform modified duties….
(b) Where the Board is concerned that a member has a pattern of absences from work, the member may be instructed that for all future absences in the next twelve months, he or she must provide a medical report. The report shall be on the form provided by the Board and certify that a doctor saw the member during absence and that in the Doctor's opinion, he or she was ill or injured and unable to attend work.

The Cobourg Police Association lodged a grievance alleging that the imposition of the requirement to provide a sick note in respect of all absences amounted to a violation of the collective agreement. In this regard, the Association contended that the comparison of the first six months of 2015 with the average for 2014 did not establish a sufficient pattern on which to base a legitimate concern about sickness absence.

After receiving the grievance, the Chief of Police rescinded the June 2015 e-mails and issued further letters to each of the officers, re-imposing the requirement to provide a doctor’s note for each instance of medical absence on the basis of a broader analysis of the officers’ attendance against the average for the Service. The Chief’s letter set out each officer’s annual sickness absence against the Service average for the years 2011, 2012, 2013 and 2014, and also identified the proportion of sickness absence taken in conjunction with annual leave, weekends or holidays.

The Association argued that the Board should have exercised its discretion to require medical notes for each absence under section 18.01(b) of the collective agreement on a case-by-case basis, having warned or advised the officers of any concerns about sickness absence. In its defence, the Board maintained that the Chief’s analysis of the officers’ absence statistics prompted legitimate concerns about the cost of sick leave, and established a pattern of sickness absence that furnished the Board with discretion to require sick notes for all absences under the collective agreement.

Arbitrator William Marcotte recalled that the overriding objective in interpreting provisions of a collective agreement is to determine what the parties intended the provision to mean, and that the starting point was to scrutinize the language used in the collective agreement itself. Turning to the words used at Article 18.01(b), the Board had discretion to require an officer to supply a medical report for all future absences in a 12-month period, but only where “the Board is concerned that the officer has a pattern of absences from work”.

On the facts of this case, the Chief harboured a legitimate concern about the rising costs to the Service of absences that were due to illness. Regarding the establishment of a “pattern” of absences, Arbitrator Marcotte agreed with the Association that the June 2015 e-mail, with its comparison of absence data from 2014 and the first half of 2015, did not refer to a time period that was sufficiently long to permit the Service to conclude that a pattern existed. However, the August 2015 letter from the Chief asserted the existence of a pattern based on a four-year timeframe, which was reasonable. Further, it was reasonable to have regard to the fact that, compared to other members of the Service, the officers’ absences were markedly more likely to fall next to a weekend, leave period or holiday. This analysis was consistently applied, and enabled the Chief to conclude in a reasonable manner that the officers in question exhibited a pattern of absence.

Accordingly, the grievances were dismissed.

This case exemplifies the approach to be taken in exercising an employer’s discretion to require sick notes under a collective agreement. Such discretion must be exercised reasonably and in a manner that is consistent with the other provisions of the collective agreement. Employers should ensure that their decisions in this regard are firmly based in relevant and sufficient evidence. In this case, although the June 2015 analysis of absence statistics was somewhat facile, the more sophisticated statistical analysis in the August letter provided a solid basis on which the Chief could reasonably conclude that the officers’ absence gave rise to a concern regarding a pattern of absence.


Nova Scotia Police Review Board Overturns Finding of Misconduct Following Arrest of Couple During Traffic Stop

In MacGillivray (Re), the Nova Scotia Police Review Board reversed a finding of misconduct against a police officer who arrested a couple during a traffic stop along a busy highway. The confrontational behaviour by both members of the couple justified the officer’s actions, which were based on a real perception of danger.

On September 9, 2015, Graham Labonte and Angela Acorn were travelling from their home in Prince Edward Island to a medical appointment in Fall River, a suburban community near Halifax, Nova Scotia. As they approached Fall River, they passed a marked police cruiser occupied by Sergeant Matthew MacGillivray of the Halifax Regional Police Service. Mr. Labonte was driving at a speed of 115 km/h, 15 km/h in excess of the speed limit. Sgt. MacGillivray noted that the speeding car was from outside the province and decided to advise the driver of the applicable speed limit. He therefore pulled Mr. Labonte over.

Sgt. MacGillivray approached Mr. Labonte on the passenger side of his vehicle and stopped next to the rear passenger door, in line with the applicable procedure for traffic stops. When Mr. Labonte asked that Sgt. MacGillivray move closer to the front window, Sgt. MacGillivray declined to do so on safety grounds. At that point, Ms. Acorn exited the vehicle and quickly approached Sgt. MacGillivray, in the hope, she later claimed, of advising him that the roadside stop was dangerous as the stopped cars were in the path of highway traffic.

As Ms. Acorn approached him, Sgt. MacGillivray feared for their safety and ordered her, twice, to return to the vehicle. When she refused to do so, Sgt. MacGillivray ordered her to stop approaching him, and when she again refused to comply, he arrested her, employing an “empty hand control” technique. Ms. Acorn resisted noisily, prompting Mr. Labonte to exit the vehicle and approach Sgt. MacGillivray in an angry manner. Feeling threatened by the much larger Mr. Labonte, Sgt. MacGillivray backed away from Mr. Labonte to maintain distance between them. Eventually, Sgt. MacGillivray released the first retention hood on his holster, after which Mr. Labonte complied with Sgt. MacGillivray’s request to get back.

Sgt. MacGillivray then called for backup. When other officers arrived on the scene, Mr. Labonte and Ms. Acorn were subdued and eventually released. They filed a complaint against Sgt. MacGillivray under the Nova Scotia Police Act and, following disciplinary proceedings, Sgt. MacGillivray was found to have committed discreditable conduct, and to have been discourteous to, and to have used unnecessary force on, a member of the public. Sgt. MacGillivray was demoted to the rank of first class constable for 12 months.

Sgt. MacGillivray appealed the disciplinary decision to the Nova Scotia Police Review Board, which overturned the finding of misconduct after a five-day hearing. The Board found that Sgt. MacGillivray’s conduct did not, at any point, cross the line into misconduct. His approach to the Labonte vehicle was in line with police training. Ms. Acorn’s refusal to return to her vehicle, and her continued rapid advance towards Sgt. MacGillivray, created a very dangerous situation that justified her arrest and the use force to halt her advance. Further, the empty hand control technique was at the low-force end of the available options for restraining her. The Board observed that although there may have been other options open to Sgt. MacGillivray, it was not immediately obvious what those options were. In any event, the Board quoted with approval the remarks made by the Ontario Court of Appeal in R v Golub:

Often, the officer's decision must be made quickly, in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same sort of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

Similarly, Sgt. MacGillivray’s treatment of Mr. Labonte, including his release of the retention hood on his holster, was justifiable on the basis that he was plainly very agitated and posed a threat to the officer’s safety.

Accordingly, the Board found that Sgt. MacGillivray’s actions did not amount to misconduct and dismissed the complaint.
This case provides an illustration of the deference that will be shown to officers who use force against members of the public in good faith and on the basis of reasonable apprehension of a threat to safety. Sgt. MacGillivray’s conduct occurred in the setting of a busy highway, against members of the public who were clearly agitated and who were putting their own safety, and Sgt. MacGillivray’s, at risk. Although other means of de-escalating the situation may, with hindsight, have been available in theory, the Board refused to condemn Sgt. MacGillivray for not having considered every possible action in the context of a highly pressurized situation. 


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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