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May 30, 2016

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Page 12 May 30, 2016 • Law TiMes www.lawtimesnews.com focus Lawyers call ruling 'troubling' Ruling sets special standard of proof for police BY YAMRI TADDESE Law Times W hen it comes to establishing facts, the criminal law requires proof beyond reasonable doubt, while in civil law, the standard of proof is made out on balance of probabilities. But according to Jacobs v. Ottawa (Police Service), a recent decision from the Ontario Court of Appeal, police officers in disciplinary hearings get a third, special standard of proof that will make it more difficult to prove their culpability. In a decision lawyers are calling "troubling," the court unanimously said that in order to establish culpability, pros- ecutors at police disciplinary boards must establish guilt "on clear and convincing evidence." That's a higher standard of proof than balance of probabil- ities, which is required to es- tablish culpability for all other individuals and professionals in civil law. "The decision only serves to further inoculate police from appropriate scrutiny," says Ottawa criminal lawyer Michael Spratt. He also says the decision will have an impact on criminal cases where lawyers are trying to bring the credibility or behaviour of police officers into question based on past disciplinary findings. "It's a significant decision . . . I think it's a troubling decision," says Toronto lawyer James Morton. "It gives a very special, enhanced protection for police officers facing discipline and it makes it more difficult to discipline police officers. And, of course, that's something that's been in the public eye recently." Quite often, criminal law cases turn on whether police are being truthful or otherwise behaved appropriately, Morton says, adding police disciplinary findings are, therefore, import- ant in criminal cases. "Discipline hearings of police are something that must be dis- closed; they are important and part of the general disclosure that you get," Morton says. "Whether a police officer has been disciplined or not makes a huge difference to all the cases the officer has been involved in. If you have a police officer who has been disciplined for misleading conduct, that's hugely important in cases where you're defending and [the question is] between what the officer says versus what the accused says," he adds. The court of appeal said the Supreme Court of Canada has already created this third standard of proof for police officers. The Divisional Court, which heard the case, erred in not following the SCC's precedent in Penner v. Niagara, the appeal court said. This special burden of proof doesn't exist anywhere else in the law, according to Morton. "Certainly, if you're looking at a lawyer being disciplined, you have to take the evidence carefully and look at it closely, but [the standard of proof ] is balance of probabilities — that's what it is," he says. Spratt says at least one of the arguments for creating this special standard of proof for police officers is that they are hugely impacted 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. "Police officers are not like normal citizens, and there's a good argument that police officers should indeed be held, by the virtue of their power and authority, to a higher standard than normal individuals," he adds. "The [appeal court] decision is incongruous with that because it actually leads to police being held, in some respects, to a lower standard." In Penner, the SCC touched on the issue of standard of proof when it was asked to decide whether a police officer who was acquitted in a disciplinary hearing should then face a civil case on the same matter. The court said: "As the Court of Appeal recognized, because the [Police Services Act] requires that misconduct by a police officer be 'proved on clear and convincing evidence,' it follows that such a conclusion might, depending upon the nature of the factual findings, properly preclude re-litigation of the issue of liability in a civil action where the balance of probabilities — a lower standard of proof — would apply." 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 just obiter dicta, or incidental expression of opinion. But the court of appeal rejected those arguments. "At para. 47, the court held that the parties' reasonable ex- pectations regarding the scope and effect of the administrative proceedings are shaped by the text and purpose of the legisla- tive scheme," said appeal court Justice C. William Hourigan, who wrote on the appeal court's behalf. "Therefore, the finding on the standard of proof was central to the court's analysis of the reasonable expectations of the parties, which was the basis on which a majority of the court overturned the decision below." Hourigan added: "In my view, we are bound by the Su- preme 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. 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 Com- mission. The matter is remitted to the Commission for further consideration in accordance with these reasons." LT When you're working, Grow your business and acquire new clients with a full-service online marketing solution. Raise your profile and enhance the quantity and quality of your files by partnering with a team that delivers everything that is cutting edge and innovative in marketing. The best part is that we'll do all the heavy lifting for you, because when you're working, we're working. LawyerMarketingCanada.com 1-844-525-4355 we're working. Untitled-6 1 2016-05-25 4:14 PM

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