A reasoned decision, and one that demonstrates the importance of assessing and appropriately weighing the facts and the law.
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.
When examining the Police Services Act (PSA), we are quick to presume this legislation deals only with matters pertaining to uniform police officers, and not civilians. For the most part, this statement is correct, however, the PSA does govern Special Constables. Section 53 of the PSA gives the Police Services Board the power to appoint, suspend or terminate special constables, however there is a procedure to be followed.
Suspension or termination of appointment
53(6) The power to appoint a special constable includes the power to suspend or terminate the appointment, but if a board or the Commissioner suspends or terminates an appointment, written notice shall promptly be given to the Solicitor General.
In the event that the Chief is recommending termination of the employment or appointment of a Special Constable, Associations should ensure the following stages are followed pursuant to section 53 of the PSA:
At the first stage, the member will receive a Notice of Investigation. This notice should include all particulars of the investigation, including, but not limited to, a description of the incident, dates, parties involved, alleged misconduct, evidence relied upon etc. Within this letter, the member ought to be informed of any disciplinary action that will take place during the investigation. For example, whether they will be assigned to administrative duties, retain their use of force, or be suspended with or without pay.
At the investigative stage, interviews will be conducted. The member will be interviewed by the internal Professional Standards Section/Bureau. Civilian members are not compelled by the PSA to provide an interview. At this stage, consultation with legal counsel is imperative to assess the merits of attending an interview, as well as the risks associated with non-attendance.
Upon completion of the investigation, the Chief will draft a report outlining his/her recommendations. The Chief will forward this report to the Police Services Board, as well as the member and their respective Association.
The Association may invoke its right to request and make submissions on the member’s behalf in writing and/or orally pursuant to section 53(8) of the PSA. Note that this occurs on a case by case basis, and where misconduct is proven and may justify the Chief’s recommendation, the Association may negotiate the appropriate severance.
Information and opportunity to reply
s.53(8) Before a special constable’s appointment is terminated, he or she shall be given reasonable information with respect to the reasons for the termination and an opportunity to reply, orally or in writing as the board, Commissioner or Solicitor General, as the case may be, may determine. 1997, c. 8, s. 33 (4).
When requesting disclosure, ensure you are timely and detailed in your request. Appropriate disclosure includes, but is not limited to: interviews, transcripts, investigative logs, scheduling information, e-mails, etc. All relevant information should be obtained, in addition to all information relied upon during the investigation of the matter.
Organizing written submissions is a process that should not be rushed. It should commence immediately upon the submission of the Chief’s report, and once all disclosure has been acquired and reviewed, as this remains an integral part of the process. The Association plays an important role at this stage in retaining legal to draft the submissions, should the Association be unable to, as well as in providing its position within the written submissions regarding its support for the member. All relevant information about the member should be gathered at this stage. This includes past evaluations, responses and explanations to each allegation, character references (staff, coworkers, supervisors, community leaders etc.), mitigating factors (i.e. years of experience, rank, no previous discipline) etc.
It is also helpful to assess the member’s willingness to concede to reasonable and proportional disciplinary alternatives in cases of substantiated misconduct. Relying on precedents regarding how other members have been disciplined in similar situations will also be beneficial. Lastly, Associations may request the opportunity to make oral submissions at the Police Services Board meeting where the submissions previously provided by all parties will be considered. The member is also encouraged to address the Board at this time.
Should the Board terminate the member, the Association may file a grievance following the same process as other labour grievances. Ensure these procedures are being followed to prevent the unlawful termination of your members.
Audio Recording an Interview Without the Consent of the Officer:
Neither an employee, nor an employer, has the right to record a meeting, unless both parties agree to the recording. It is unlikely, however, that many employers would agree to this given most employers’ disciplinary procedures or grievance provisions will not expressly provide for this reciprocal agreement option.
Pursuant to the Police Services Act, respondent officers have the right to be accompanied at a disciplinary or grievance proceeding by a representative. The note-takers are important in case the technology to audio-record the meeting fails and there is then no documentation to prove what was or what was not said.
The PSA is silent on whether or not disciplinary interviews shall/may be recorded. There is potential to rely on Regulation 267/10 section 8(4) which stipulates that an SIU interview shall not be recorded by audiotape of videotape except with the consent of the officer. Inevitably, the Employer will argue this is applicable for SIU investigations only, and even then, to witness officers, as stipulated, however, the Association can counter this position by stating that there is no express provision in the PSA which permits interviews in any other context to be recorded. Therefore, this Regulation is relied upon and shall be followed. Taking this position essentially shifts the onus onto the Employer to demonstrate their authority to record in general, and even then, without the consent of the Respondent Officer.
Within the context of administrative proceedings, including grievances and arbitrations, it should be noted that even covert recordings (those whereby one party in unaware they are being recorded) have been admitted into evidence at hearings where they are directly relevant to the merits of the matter. Members should be aware of this should they participate in oral interviews. We would suggest they state their objection to being recorded, either directly or through their representatives, on the record at such meetings in an abundance of caution.
Oral vs. Written Interview Requests:
Pursuant to section 42(g) of the PSA, all police officers must perform the lawful duties that the Chief of police assigns. This pertains to all lawful orders, and officers are compelled to provide statements during an investigation as a part of these lawful orders. Unfortunately, there is no statutory provision for whether this order shall include an interview in writing or in person, and as such, it is at the discretion of the employer to determine which they require. As the member’s Association, you can facilitate communication wherein you establish the member’s preference for one or the other, however the member cannot refuse to comply without facing the risk of being charged with insubordination, absent extenuating circumstances.
Pursuant to section 64 of the PSA, the Chief shall cause every complaint to be investigated and the investigation to be reported on in a written report. This section is also silent on the method of interview, however, this matter has been addressed in the case of Gregg and Midland Police., O.C.C.P.S, 11 December 2001.
In this case, the Commission addressed the issue of whether the employer could lawfully specify the form of answers to required questions. The officer refused an order to provide verbal answers, but stated that she would answer questions in writing. The Commission upheld a conviction for insubordination, stating that it is well established that lawful commands of superior officers must be obeyed unless there is a lawful excuse for not doing so. This does not of course apply should the investigation be a criminal one, as members possess the right to refuse an interview in this regard. However, in the absence of such jeopardy, the law is clear that members must attend or face the potential charge of insubordination.
The case of Orr and York Regional Police (No. 2) 26 March 2001, also addresses this matter, in that it outlines that police officers are granted extraordinary powers at law, and as a result, are subject to a strict Code and a legislative regime that holds them accountable. This includes a legitimate public purpose in requiring them to account for their actions, by way of a written or oral statement.
When done properly, performance appraisals should be a useful tool for members and management. They should help to clarify your supervisor’s expectations and give you a clear idea of where you fit within the Service’s broader organizational goals. You should get positive feedback for what you have been doing well and direction on where you could make improvements. The process should also allow you to discuss your own career goals and to tell your supervisor what support you need to meet your current responsibilities and future goals.
Performance appraisals remain in your personnel file forever. Therefore, when they are not done properly, they can have a negative and unfair effect on your career and can, in certain circumstances, be used to justify discipline further down the road. For this reason, it is imperative any problems with your appraisal are addressed as soon as possible.
Although performance appraisals should provide positive reinforcement, management has the right to identify perceived shortcomings in your performance. However, this doesn’t give your supervisor the right to put whatever they want in writing, completely unchallenged. Performance appraisals should be conducted in a fair manner and must be based on accurate facts. If they are not, you should ask that mistakes be corrected or clarify them yourself on the appraisal form.
What to Watch Out For in Your Appraisal:
Performance Improvement Plans:
Another issue concerns the imposition of Performance Improvement Plans. These plans are generally introduced after a negative performance appraisal or where management has concerns about performance. They set out a specific list of goals you are expected to meet within a specific time frame.
These plans may be a genuine attempt to assist members in reaching their potential. On the other hand, they may also be used as the first step in a documented process that can lead to discipline. They should be taken very seriously. Review the goals that you are being asked to meet. Are they attainable? Are they part of your job description? If the Performance Improvement Plan contains unreasonable goals or threatens to discipline you for failing to meet the goals, call your Association.
For many members, performance appraisals have been a positive process. However, unfair appraisals will remain in your file permanently and can have a long lasting impact on your career goals. When you have a concern about something, address the concern with your supervisor or use the Member’s Comments section to clarify issues, when necessary. If you have real concerns, call your Association to determine whether there is any merit to a grievance.