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On January 12, the Supreme Court of Canada ("SCC") dismissed the Ottawa Police Service and civilian Mark Krupa’s application to appeal the Ontario Court of Appeal’s ("OCA") decision in Jacobs v Ottawa (Police Service) 2016 ONCA 345. By doing so, the SCC upheld the OCA’s decision that, under the Police Services Act RSO 1990, c P 15 (PSA), administrative police disciplinary hearings are to be determined on a standard separate both from the regular civil standard of a balance of probabilities and the criminal standard of proof beyond a reasonable doubt. Rather, hearings are to be conducted on the standard of “clear and convincing evidence,” according to the words of the PSA (s 84(2)). This decision gives rise to some concerns and signals a need for change within the PSA to ensure compatibility with other jurisprudence and to honour the increasingly important principle of police accountability.
Facts and the Trial Decision
Section 84(2) of the PSA provides that:
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.
Constable Kevin Jacobs was found guilty of misconduct by a police hearing officer for Unnecessary Exercise of Authority under the PSA with respect to the arrest of Mark Krupa. The decision was upheld by the Ontario Civilian Police Commission (the Commission) and by the Superior Court of Justice. The main issue throughout the proceedings, and ultimately at the OCA, was whether the Commission and the hearing officer erred in law by judging Constable Jacobs’ actions on a balance of probabilities instead of on a standard of clear and convincing evidence.
At trial, the court determined that the Commission and the hearing officer did not err in using the standard of a balance of probabilities, finding instead that, as a civil matter, this is the only possible standard to use. The reference to “clear and convincing evidence” in the PSA, they found, is only to be used as a standard to judge the quality of the evidence and is not a standard of proof itself.
The OCA reversed the lower court’s decision, finding that the concept of “clear and convincing evidence” is instead the standard that police misconduct hearings are to be determined on. This standard, the OCA held, falls somewhere in between proof on a balance of probabilities and proof beyond a reasonable doubt.
The OCA and Questions Unanswered
The main distinction between the judgments by the Superior Court of Justice and the OCA falls on the precedential value of two cases: FH v McDougall 2008 SCC 53, and Penner v Niagara Steel (Regional Service Police Board), 2013 SCC 1. The former case arose in the context of a civil sexual assault case, where the SCC was tasked with determining whether the appeal court erred in using an intermediate standard that falls between proof beyond a reasonable doubt and a balance of probabilities. There, the court remarked that there is one standard in civil cases: proof on a balance of probabilities. While the trial court in the case at hand found this to be an explicit determination that the standard cannot be departed from, the OCA found the case to be of limited application and not to stand for a universal standard that is primary to statutorily defined standards.
With regard to Penner, the courts had similar disagreement about applicability. In that case, the court stated that the “clear and convincing evidence” concept was a standard somewhere between balance of probabilities and beyond a reasonable doubt. At trial, the court found this case to have limited value as it dealt with a different context, and the court did not make a determination as to the merits of the standard, as the parties had no disagreement as to the standard being applicable. On the other hand, the OCA found that there was no explicit agreement on the standard in the record of the case, and that the remark should not be written off as obiter. This characterization is unconvincing, as the case does not refer to McDougall or purport to change the law it arguably established.
Thus, much of this determination falls on the specific courts’ interpretation of the applicability of two cases, suggesting that there is perhaps confusion as to the state of the law. Unfortunately, the OCA did not focus much analysis on why one case is legally correct as opposed to the other. In light of the confusion, the OCA ought to have provided insight into the purpose of the standards, the history of the civil standard, and what authority the legislature has to move away from those standards in an administrative or other context. Additionally, the SCC’s rejection of the appeal misses the opportunity to provide judicial insight into these issues.
By accepting the remarks in Penner, the OCA did not undertake much of their own analysis to determine what the meaning of “clear and convincing evidence” is. The trial court found that the evidence provided doubt that the clear and convincing evidence concept was its own standard, noting a lack of legislative commentary. It additionally pointed out the use of the concept in other civil contexts as a matter of fulfilling the proof on a balance of probabilities standard.
A Third Standard of Proof
The OCA decision and the SCC’s dismissal of the appeal have been criticized as providing a different standard for police than others, allowing a larger margin of mistake for police officers than employees in other fields.
Proponents of this outcome may argue that police work--being difficult, case-specific, and with the highest of stakes--requires space for police to conduct their work without unreasonable fear of disciplinary action and other repercussions. Additionally, it is argued that the PSA provides such serious potential disciplinary remedies that the standard ought to be higher than for other professions.
However, others are deeply critical of this decision, suggesting that raising the standard for police is both legally incorrect and does a disservice to society’s need for police accountability. Indeed, this decision may work to reduce an already shaken public trust in police in Ontario in light of the alleged police brutality and misconduct against racialized people in particular (for example the death of Abdirahman Abdi, Black Lives Matter’s police ban, and the ongoing debate over “carding”). In light of current tensions between members of the public—especially marginalized communities—and police, the judiciary’s interaction with these issues should be a thoughtful process.
While the court has spoken, the story has not come to an end. It may be time for the Ontario legislature to amend the PSA and do away with this potentially harmful new standard as a starting point for improving public trust in policing.
1 Comment
Burdens of proof are composed of words, not mathematics. Therefore, clearly perceived and properly applied burdens of proof have to be composed of very different and clear meanings that denote very different levels of proof. And especially so when they are to be applied by people who don’t have sufficient legal training, such as professional and commercial disciplinary tribunals. And because there are different burdens of proof for different procedures, it can be difficult even for experienced litigation lawyers to accord meaningful differences to such different burdens. When a court of appeal says of a wording for a particular burden of proof, that “it’s somewhere between proof beyond a reasonable doubt and proof on a balance of probabilities,” such tribunals are going to have trouble determining where the, “somewhere between” point is.
Consider the different burdens of proof applicable to, committal for trial at a preliminary inquiry, the admissibility of expert evidence, a confession, “the usual and ordinary course of business,” and the onus of proof that is “evidence to the contrary,” which applies after evidence is presented that contains sufficient, “circumstantial guarantees of trustworthiness.” How “contrary” and what kind of “contrary” does such evidence have to be? And what’s a “circumstantial guarantee”?
That weak word formula resulted in the admissibility of evidence that was critically important to the conviction for murder that followed the ruling, R. v. Oland 2015 NBQB 245, at para. 64. Note that the Court states that, that evidence, which became critically important to the murder conviction, was “minimal.” Are you sure you can give meaningful differences as to the levels and kinds of proof, to all of the many different word recipes for such decision-making?
What if all burdens of proof had to be applied by juries? Would you word them differently than they are now worded, or abolish juries?
Here’s an article written by very experienced law professors and lawyers, advocating that an additional burden of proof apply to the expert opinion evidence adduced by the Crown prosecutor, which would not apply to expert opinion evidence adduced by the accused: Gary Edmond and Kent Roach, “A Contextual Approach to the Admissibility of the State’s Forensic Science and Medical Evidence” Volume LXI, (2011), University of Toronto Law Journal 343-409. I wrote a comment entitled, “’Junk Science’ by Way of a Higher Burden of Proof” (2012), 16 Canadian Criminal Law Review 323; then followed Kent Roach’s, “A reply to [Ken] Chasse’s “’Junk Science’ by Way of a Higher Burden of Proof” (2012), 16 C.C.L.R. 357; followed by my rebuttal at, (2012), 16 C.C.L.R. 381.
The ever-increasing number of burdens and onuses of proof as to admissibility, and conviction, and findings of civil liability, create a problem of, increasingly impinging upon what little is left for the trier of fact as to the “reliability of the evidence.” Imagine judging an impaired driving case without a breathalyzer reading. To be sure that you “did justice,” you would have to let a lot of dangerously impaired drivers “walk” (be acquitted). That’s where we are now with all of these word recipes.
Law, unlike science, is most often left with mere perception without adequate means of measurement. The purpose of all research should be to go from perception to measurement. Burdens of proof can’t (except proof in such prosecutions as, “over 80” breathalyzer device readings, and speeding tickets). But, we can get closer to measurement by enabling better perception. Perception’s conclusions can be guided and disciplined with the right choice of words for various burdens of proof.