Dec 21, 2016

Standard of Proof in Police Discipline Proceedings

Jacobs v. Ottawa (Police Service), 2016 ONCA 345 (CanLII)

FACTS: J is a police officer employed by OPS. Following an arrest, J was charged and found guilty of misconduct (excessive use of authority) under the Police Services Act1 and its associated regulation. The Ontario Civilian Police Commission affirmed the hearing officer’s finding of guilt. J’s application for judicial review was dismissed by the Divisional Court. J appealed to the Court of Appeal on the ground that the Divisional Court erred in finding that the Commission applied the correct standard of proof (balance of probabilities) for a finding of police misconduct under the PSA.

DECISION: Appeal allowed. Subsection 84(1) of the PSA provides that "misconduct" as defined in the Act "is proved on clear and convincing evidence". The applicable standard of proof in PSA hearings is that of clear and convincing evidence, which is higher than a balance of probabilities.

In reaching its conclusion that the standard of proof in police discipline hearings is a balance of probabilities, the Divisional Court held it was bound by FH v McDougall,2 which rejected the existence of an intermediate standard of proof. The Divisional Court declined to follow Penner v Niagara (Regional Police Services Board)3 because in that case the Supreme Court did not undertake any analysis of whether a higher standard of proof applied to disciplinary proceedings under the PSA. The Court of Appeal held that the Divisional Court erred in relying on McDougall and distinguishing Penner.

McDougall did not purport to establish a universal standard that applies to statutory standards of proof. A legislature has authority to create a standard of proof specific to a particular statute.

In Penner, the Supreme Court addressed the different standards of proof in civil actions and in PSA hearings. The court noted that the PSA requires that misconduct be "proved on clear and convincing evidence" and that a finding of misconduct might properly preclude relitigation of liability in a civil action where the balance of probabilities – a lower standard of proof – would apply. The finding on the standard of proof was central to the court’s analysis in Penner and the decision was binding on the Divisional Court.

COMMENTARY: When the Divisional Court’s decision was released in 2015, this Newsletter commented that the decision sought to address the inconsistency between McDougall and Penner on what "clear and convincing evidence" requires as a standard of proof. We noted that the inconsistency has been the subject of much confusion and criticism by lawyers practicing in the area of professional discipline. The Divisional Court had momentarily settled the debate in favour of McDougall.

With the Court of Appeal’s decision, the confusion and criticism that followed Penner is likely to re-emerge. Though the decision states unequivocally that the standard of proof in PSA hearings is a higher standard of clear and convincing evidence, it does not provide any guidance on the content of that standard. It is within the authority of a legislature to specify a particular standard of proof in a statute, but neither the Court of Appeal here nor the Supreme Court in Penner conducted any statutory interpretation exercise to determine whether the legislature did so in this case – or whether "clear and convincing evidence" in s 84(1) of the PSA was simply intended to refer to the quality of evidence that will satisfy the standard of proof on a balance of probabilities, as many lawyers had previously understood.

It remains to be seen whether Penner and now Jacobs will be restricted to PSA hearings, or whether similar intermediate standards of proof will become more common, reverting to the very situation McDougall sought to address.

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