Oct 27, 2020

It is likely that there is variability as to when off-duty conduct can be the subject of discipline. For example, the degree of circumspection expected of teachers and police officers may be higher than for some other professions where practitioners are not as widely seen as esteemed role models.

This issue came up in the case of Mulligan v Ontario Civilian Police Commission, 2020 ONSC 2030, http://canlii.ca/t/j6fm8. In that case:

While off duty, Sergeant Mulligan attended and spoke at a conference where the theme was cannabis legalisation. The conference took place in September 2015, while the decriminalization of marijuana was under discussion, but had not yet been passed into law. In his remarks at the conference, where Sergeant Mulligan was identified as a twenty-nine-year veteran of the Ontario Provincial Police, Sergeant Mulligan made it clear that he was in favour of the legalisation of marijuana, but that he was not representing the views of his employer.

The problem was that Sergeant Mulligan had been ordered not to attend or speak at the conference. He was disciplined on two charges. On one charge, for bringing the force into disrepute, he was found not guilty because at the time he spoke there was widespread public support for decriminalizing the possession of cannabis and his views would not be viewed as shocking. On judicial review of the finding of disregarding an order, the Court held that this finding should also be set aside because the tribunal had failed to consider a provision in the legislation that was on point and because the tribunal had found that the audience would not perceive his remarks as meaning he would refuse to enforce the law.

The significance of the case is that it reinforces the principle that all of the circumstances must be taken into account when determining whether off duty conduct is worthy of discipline.