Workplace Harassment vs. Breach of Trust/Disclosure of a Private Communication - Decision of the OCJ
In a world that requires social distancing and self-isolation, how can Police Officers still perform their jobs, while keeping themselves and our communities safe? The Police and other first responders will still serve their communities during this challenging time, but what tools are required, in order to assist them in protecting themselves?
These unique circumstances, require that Employers work with Associations to determine the best course of action in protecting their members, as well as the communities they serve. As safety remains the top priority for all Police Services, many have implemented Pandemic Protocols to help monitor this ever-evolving situation. These include new procedures for dealing with the public, as well as their employees, in an effort to keep everyone safe.
Police employers have adjusted the way in which Police Officers and Civilian Members interact with the public in relation to non-emergency situations. A number of police facilities have closed their buildings to the public to help reduce social contact, and where an officer is required to attend a non emergency scene in person, the caller may be asked some non-intrusive screening questions related to the COVID-19 health risks. If an officer attends a scene, they may be wearing gloves or masks upon arrival, which have been provided by their Employer.
In order to limit the contact that officers are having with the public, and to mitigate any potential exposure to COVID-19, some Employers have implemented procedures to process some calls for service over the telephone, in lieu of having an officer physically attend. This process will not be effective for all calls, and as such, each call is assessed on a case-by-case basis.
Associations across Ontario are working with the Services to ensure the safe working conditions for all members. As a result of this, most non-essential services that the Police provide, such as freedom-of-information requests, have been suspended to help protect the members and reduce contact with the public. This also assists in redirecting manpower where it is needed most.
During this unprecedented time, it is imperative that both the Police Associations, as well as the Police Services work collaboratively. Associations have presented a number of recommendations to their Boards which include, mandatory personal protective equipment (PPE) whenever there is an expectation of possible exposure. PPE should not be considered a luxury item, and should be supplied to all Front-Line Police Officers as part of the uniform.
Police Officers must interact with the Public, and it is clear that they need to feel safe and protected while doing their jobs. The Association has voiced its concern over parades also; protocols like this, which require an increased number of individuals to be together in a confined space, should be re-evaluated and possibly eliminated until this Pandemic is over. In addition, Police Employers should consider staggering lunch hours, and the possibility of alternating shifts, in order to limit the number of officers overlapping at any one period of time.
Police Officers frequently accompany both, fire service and emergency medical services when they attend a call. As such, there is an increased risk to our first responders of exposure to COVID-19. It is during this initial interaction with someone that any first responder could be unknowingly exposed. The Ontario Government recognizes this risk; Deputy Premier and Minister of Health Christine Elliot, and Solicitor General Sylvia Jones, announced on April 5, 2020 that the government of Ontario was making an emergency order permitting all first responders access to private health information regarding the COVID – 19 status of individuals. The Deputy Premier stated that this is just one tool that we can give our first responders who put their lives on the line every day to protect Ontarians.
Deputy Premier Elliott stated;
“During this pandemic, it is crucial that our first responders have access to this critical information when they are preparing to respond to an emergency in order to protect themselves and the public and help stop the spread of this virus. Once the declaration of emergency is lifted, this data will be made inaccessible.”
We will continue to advise Associations on this evolving situation, and commend all first responders, and their families, for their continued sacrifice, and commitment to making our communities safer.
The following decision is instructive in demonstrating that the Executive is not insulated from abusing authority. Checks and balances are in place, and the Ontario Civilian Police Commission will act when there are grounds to justify the enforcement of accountability among the top ranks. The Superior Court upholds the Commission's authority to invoke its mandate and investigate the Chief of Police of the Durham Regional Police Service for allegations of misconduct.
A fair and detailed decision outlining the importance of maintaining professionalism and communication between an Association and its members. The threshold for the Duty of Fair Representation remains a high one, with the burden of proof resting on the complainant.
This Award addresses Workplace Harassment as an Employer process; it is not the duty of the Association to investigate.
The Ottawa Police Association provided "Fair and objective consideration to the Complainant's complaint,, was fully engaged in dealing with his complaints, and then took appropriate actions in dealing with those complaints. I find it did not act in an arbitrary manner".
All members should be aware of the decision from the Supreme Court of Canada (Wood vs. Schaeffer., 2013 SCC 71) regarding access to counsel and note-taking of Officers involved in SIU investigations. They should also familiarize themselves with the SIU Protocol established by their Police Associations.
The Directors of each Association will be involved once there is an SIU incident. Association Directors will assess the members involved in the incident. The health and well-being of all involved members will take priority prior to the completion of notes. The notes of all subject officer should be sealed in a separate envelope and not provided to SIU.
Officers involved in an SIU incident, whether as a witness or subject officer, must complete their notes prior to consulting with legal counsel. They should not discuss the incident with the other members involved in the incident, and they will be ‘segregated’, not isolated. Officers involved should NOT provide any statement to anyone other than counsel following the completion of their notes; this includes any members from Professional Standards.
The notes should be an accurate, detailed, comprehensive account of the incident. Counsel will be assigned immediately; once notes are completed officers may then speak with assigned counsel for an explanation of the process and their legal rights. Members need to ensure that they communicate with the assigned counsel in order to provide proper contact information and schedule follow up meetings with them.
Any practice by the Liaison officers within your respective Service to speak to Witness and/or Subject Officers absent representation, either by the Association or by counsel, is a breach of the Police Services Act, and will render the Liaison Officer a Witness Officer, thereby voiding their role to assist the SIU or the member. The role of the Liaison officer is to ensure the well-being of the officers involved, and assist the SIU with contact information for the involved members and their representatives. Period. Subject officers retain the right to remain silent, as this is a criminal investigation. Furthermore, the SIU determines who is designated as a Witness Officer and a Subject Officer. These designations may change, along with the jeopardy of the officer, and as such, no statements should be elicited from any of the involved members.
Involved officers should provide the preamble below should any members of PSS or Liaison Officers attempt to elicit a statement from them.
I, Cst/Sgt/SSgt. “X” have been involved in an incident for which the SIU may invoke their mandate. Pursuant to section 7(1) of Regulation 267/10 of the Police Services Act, I am invoking my right to consult with legal counsel or a representative of the Association. To protect the integrity of this investigation, and my rights pursuant to the Police Services Act, as well as the Canadian Charter of Rights and Freedoms, and upon the advice of my Association, I will not be providing any statement to PSS relating to this incident, at this time.
The prevalence of PTSD within the first responder profession is alarming. What was once shunned and labelled as shameful, is now viewed as that which should be brought forward, discussed, and treated. In order to truly permit the recognition of this disease, and the impact it has on officers and their families, the appropriate steps must be taken, and the right people need to be involved. Recognition for the fact that PTSD may be a significant mitigating factor within Part V Hearings (Police Services Act), is here; and, it is now being given the merit it deserves.
Following a diagnosis of PTSD, whether it be from a treating practitioner or a specialist, respondent officers must present independent medical evidence of their PTSD to the Tribunal. It is necessary for there to be a connection between their disease and their misconduct. This significantly mitigates any potential penalty that an employer may seek, up to an including dismissal. The Employer has a duty to accommodate a diagnosed medically recognized illness, so long as there is a connection between this illness and the misconduct; with the nature of policing as it is, it is reasonable that this can be established, given the impact of the profession on first responders.
Hearing officers are appreciating this impact, and taking account of it in their decisions. Retired Deputy Chief Terrence Kelly recently rendered his disposition in a PSA matter where PTSD was a significant contributing factor to the officer’s misconduct, recognizing the importance of removing the stigma associated with PTSD, and appreciating that recovery is possible:
"Work-related stress in policing was the subject of much comment at this hearing. It is accepted that stress in the workplace that frontline police officers are subject to, is not an uncommon condition in policing and public service. This officer has demonstrated he is determined to overcome his PTSD and is working very hard along with his family members to accomplish this goal. Unfortunately, people who suffer from this illness often have to cope with the stigma which, regrettably, is often still attached to this illness. The negativity towards those living with PTSD is unacceptable in this day and age, and it behooves those of us who are involved in such circumstances to offer encouragement and not label anyone who suffers from this condition as unproductive. Nothing could be further from the truth. With support and acceptance, Cst. B’s journey to complete recovery is very attainable.”
Officers must focus on treatment and recovery, and it is our job to ensure they receive the appropriate mitigation within their hearings, where the circumstances justify it. Obtaining Independent Medical Examinations early, and ensuring that the officer has a medical team in place to assist in their treatment and recovery is necessary. In the aforementioned case, the redaction of the officer’s name in the written decision was as a direct result of medical evidence establishing the negative impact further publication would serve to have on both the officer, and their family.
PTSD is not new, however the way it is being assessed within disciplinary hearings is. Let us turn our attention to ensuring Employers modify their processes to prevent the exacerbation of PTSD within the workplace.
Nothing functions to increase anxiety more than an interview. Whether this be a job interview, or one related to your job specifically, they function to increase stress levels. The Ontario Special Investigations Unit (SIU) interviews are no exception. It is helpful that many are conducted by trained investigators who, at one time, performed the job of those they are interviewing; albeit in a very different political climate.
Those with prior policing experience often have relevant knowledge and a professional attitude. They understand the profession and the many aspects involved in the job, along with the sensitivity that can be helpful in the most difficult cases.
From one SIU Director to the next, the public messaging that has been delivered has often been overly critical of police actions; the message has often been that officers act in a heavy-handed fashion, requiring oversight for true accountability. Officers are duty bound to cooperate, and unlike in any other criminal investigation, witnesses are compelled to a criminal interview. Regardless of the fact that the Charter Right to be free from self-incrimination seemingly does not apply to police officers in this context, there are limits.
Witness officers are compelled pursuant to Reg/267 of the Police Services Act to attend for an interview where the SIU has invoked their mandate, and to answer their questions. This does not, however, translate to officers being required to provide each and every piece of personal information requested by the SIU, absent any relevance to that actual mandate. Under the threat of “insubordination”, officers are being demanded to provide their Date of Birth (D.O.B.), without any legally justifiable reason for why such information is necessary. This is hardly transparent, given the SIU states they operate to foster “open, respectful communication in all directions to promote a common understanding”.
The Toronto Police Chief has taken the lead, communicating that his officers will NOT provide D.O.B., given the identity of the officers is not in question; a position the SIU Director takes issue with. To summarize: there is no oversight for oversight; the police are ‘obliged’ to answer any question the SIU deems relevant, without any right to ask why; the SIU invokes its mandate at its own discretion, again without any reason justifying this decision; officers are being charged by the SIU at an alarming rate (only to be cleared by the Courts afterward), and an SIU investigation continues to take an unreasonable amount of time to be concluded. This is what we can officially call the ‘ugly’ portion of this system.
Unfortunately, there are also other experiences that function to increase the tarnished impression the SIU has left as a result of the many examples of officers whom have had to fight for their innocence unnecessarily in court. This serves to waste valuable time and resources, adding increased stress and anxiety within a profession that is already burdened by the weight of the badge.
It is time to work collaboratively with one another to ensure we are asking the right questions, and receiving the right answers. Comprehensive transparency depends on it.
 SIU Annual General Report 2014-15, http://www.siu.on.ca/pdfs/siu_ar_2014_15_ltr_final.pdf., p. 31.
The Court of Appeal and the Decision of Jacobs and the Ottawa Police Service (2016 ONCA 345):
This appeal revolves around the standard of proof applicable to a finding of misconduct under s. 84(1) of the PSA:
If at the conclusion of a hearing under subsection 66 (3), 68 (5) or 76 (9) held by the chief of police, misconduct as defined in section 80 or unsatisfactory work performance is proved on clear and convincing evidence, the chief of police shall take any action described in section 85.
At the hearing, both the prosecution and defense took the position that the appropriate standard of proof was the balance of probabilities, and the Hearing Officer applied this standard. In fact, as a result of the majority decision in Penner, the correct standard which ought to have been applied was the standard of “clear and convincing evidence” which is a higher standard than the balance of probabilities. Penner was the binding authority on the Divisional Court and it erred in distinguishing it on the basis that all parties in that case accepted that clear and convincing evidence was a higher standard of proof. The main ground of appeal in this matter is that the Hearing Officer applied the wrong standard of proof and thereby committed an error in law. The defense grounded its argument in Penner:
“…. As the Court of Appeal recognized, because the PSA requires that misconduct by a police officer be “proved on clear and convincing evidence” (s. 64(10)), it follows that such a conclusion might, depending upon the nature of the factual findings, properly preclude relitigation of the issue of liability in a civil action where the balance of probabilities – a lower standard of proof – would apply. However, this cannot be said in the case of an acquittal. The prosecutor’s failure to prove the charges by “clear and convincing evidence” does not necessarily mean that those same allegations could not be established on a balance of probabilities. Given the different standards of proof, there would have been no reason for a complainant to expect that issue estoppel would apply if the officers were acquitted. Indeed, in Porter, at para. 11, the court refused to apply issue estoppel following an acquittal in a police disciplinary hearing because the hearing officer’s decision “was determined by a higher standard of proof and might have been different if it had been decided based on the lower civil standard….”
The Commission, and the Divisional Court erred in finding that the standard of proof is based on a balance of probabilities. The Court of Appeal found that “clear and convincing evidence” does not describe the quality of evidence required to meet the balance of probabilities standard in professional discipline matters but is instead a standard of proof in and of itself. Bound by the Supreme Court’s statement in Penner, the Court of Appeal finds that the standard of proof in PSA hearings is a higher standard of clear and convincing evidence and not a balance of probabilities. The majority judgment characterizes the balance of probabilities as a “lower standard of proof” than “clear and convincing evidence” under the PSA.
Elie Labaky, Student-At-Law
Machado Law Professional Corporation
 F.H. v. MacDougall,  3 S.C.R. 41.
 Penner v. Niagara (Regional Police Services Board) 2013 SCC 19.
 Ibid at para. 60.
 Supra note 1.