Court ruling sets bar too high for police misconduct cases

If the drift of Canada towards a police state has not yet affected you directly, you would do well to recall the words of Pastor Martin Niemoller, writing in Germany before his arrest in the 1930s: "The Nazis came for the Communists, and I didn't speak up because I was not a Communist. Then they came for the Jews, and I didn't speak up because I was not a Jew. Then they came for the trade unionists, and I didn't speak up because I was not a trade unionist. Then they came for the Catholics and I was a Protestant, so I didn't speak up....by that time there was nobody left to speak up for anyone."

Court ruling sets bar too high for police misconduct cases

Postby Thomas » Thu May 12, 2016 3:46 am

A decision by the province’s top court will make it even harder to convict police officers of wrongdoing, charges the lawyer for a man who claims he was kneed in the head during a 2009 arrest.

“It’s a very sad day,” lawyer Lawrence Greenspon said. “The effect of this decision is that there is one standard for proving misconduct for police and a different standard for everybody else.”

The ruling this week has underscored a simmering debate about how hard it should be to find police officers guilty of misconduct at internal disciplinary hearings.

Greenspon represented Mark Krupa in his claim that he suffered bruises, abrasions and emotional distress after being pulled over for speeding on the Queensway in 2009.

Const. Kevin Jacobs was accused of misconduct in the case.

In its decision, the Court of Appeal for Ontario sent the case back to the Ontario Civilian Police Commission, which had affirmed Jacobs’ guilt, “for further consideration.”

The likely effect is a new disciplinary hearing, but Greenspon said he will be consulting with counsel for the Ottawa Police Service to decide whether to seek leave to appeal to the Supreme Court of Canada. Krupa and the force together opposed Jacobs in appeal court.

The new ruling agrees with Jacobs and the Police Association of Ontario that the standard of proof in Police Services Act hearings is “clear and convincing evidence.”

They say that sets a bar that’s somewhere between the criminal standard of “beyond a reasonable doubt” and the lower “balance of probabilities” applied in Jacobs’ case. “Balance of probabilities” is the test in civil cases and discipline matters for professionals such as teachers and doctors.

Jacobs was found guilty of using excessive force under the Police Services Act at a 2012 disciplinary hearing presided over by an Ottawa Police Service superintendent and was later docked 12 days pay.

In March 2014, the Ontario Civilian Police Commission dismissed Jacobs’ appeal. The Divisional Court of Ontario agreed in May 2015, denying an application for judicial review of the conviction and penalty then later ordered Jacobs to pay $9,300 in legal costs to Krupa.

Greenspon fears the appeal court’s new decision will serve as another barrier to tackling police misconduct.

“It’s a pretty strong statement about how our court system is going to deal with police complaints, where already the vast majority of police complaints never get to a hearing,” he said, noting Krupa’s complaint seven years ago was first dismissed by local police before he appealed to the civilian police watchdog.

But Matt Skof, president of the Ottawa Police Association, welcomed the ruling and said it simply returns to the standard used before the Police Services Act became a piece of “draconian” legislation under a “prejudicial” system unlike any other profession.

“You don’t have a system of fairness,” Skof said. “All of the other hearing processes are independent. Everybody is trying to say that it’s not fair because police are now getting a higher standard, well there is absolutely no way to make a comparison to it because you don’t have the same process. All those other hearing processes have an independent adjudicator; we don’t.”

While Greenspon pointed to how difficult it is to get a police complaint heard, Skof countered that the conviction rate of officers facing discipline hearings is roughly 98 per cent. Skof said legislators should hand the process over to the Ontario Police Arbitration Commission.

“Theoretically, all cases will benefit from this (ruling),” Skof said. “Unfortunately we’re still stuck with a non-independent hearing process. Even with clear and convincing, unfortunately, when you have the chief hire and pay for the hearing officer, you don’t end up with much hope for a proper verdict.”

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