It is now more difficult for prosecutors in police disciplinary hearings to prove police officers have engaged in professional misconduct, thanks to a recent decision from the Ontario Court of Appeal.
When police are prosecuted under the Police Services Act, they are entitled to a higher standard of proof than other professionals, the court said in Jacobs v. Ottawa (Police Service).
In a decision some lawyers are calling “troubling,” the court said the issue has already been decided by the Supreme Court of Canada, and overturned a Divisional Court ruling that declined to give police a special standard of proof in hearings at the Ontario Civilian Police Commission.
“The decision only serves to further inoculate police from appropriate scrutiny,” says Ottawa criminal lawyer Michael Spratt.
While the standard of proof in criminal law is to establish facts beyond reasonable doubt, civil courts, including administrative tribunals, rely on proving claims on balance of probabilities. But Jacobs confirms there is a third, higher standard of proof for police that requires prosecutors to prove their case on “clear and convincing evidence.”
The appeal court said it is relying on a Supreme Court of Canada decision that already acknowledged this third standard of proof for police disciplinary hearings. The Divisional Court erred in not following the SCC’s precedent in Penner v. Niagara (Regional Police Services Board), says the appeal ruling.
The respondents took the position that “clear and convincing evidence” only refers to the quality of evidence generally required to meet the balance of probabilities standard in professional discipline matters. They also argued the top court’s statements in Penner were obiter dicta, or incidental expression of opinion. The appeal court rejected those arguments.
“In my view, we are bound by the Supreme Court’s statement in Penner that the standard of proof in PSA hearings is a higher standard of clear and convincing evidence and not a balance of probabilities,” wrote Justice C. William Hourigan for the panel.
“I would grant the appeal and set aside the order of the Divisional Court dismissing the appellant’s application for judicial review to quash the decision of the Commission. The matter is remitted to the Commission for further consideration in accordance with these reasons,” he added.
According to Spratt, one of the arguments for creating this special standard of proof for police officers is they are hugely affected by negative disciplinary findings against them, and police officers have important work to do.
But “that seems to me to be a reason to more carefully examine police officers’ conduct and not a reason to insulate police from the normal standards that would apply for normal individuals,” Spratt says.