The applicant constable contested the standard of proof under the Police Services Act, arguing the applicable standard of proof was "clear and convincing evidence," rather than balance of probabilities.

[2015] O.J. No. 2689

2015 ONSC 2240

Ontario Superior Court of Justice

P.T. Matlow, T.R. Lofchik and M. Donohue JJ.

May 27, 2015

The applicant constable, employed by the respondent Ottawa Police Service, was charged with one count of unnecessary exercise of authority under the Code of Conduct enacted under the Police Services Act. The applicant was found guilty and was subject to a penalty of forfeiture of 12 days' time. The finding of guilt was based on the civil standard of proof of a balance of probabilities.

The applicant appealed to the Ontario Civilian Police Commission (OCPC) on the basis the standard of proof in police discipline matters is "clear and convincing evidence," as described in the Police Services Act, rather than the civil standard of proof of a balance of probabilities. The OCPC dismissed the appeal.

The applicant applied for judicial review. The only issue raised on judicial review was whether the OCPC erred in law with respect to the standard of proof applicable to police discipline matters.

The applicant argued the Police Services Act is a substantive procedural code for police discipline matters. The Police Services Act s. 84(1) refers to misconduct being "proved on clear and convincing evidence." On the basis of Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, which considered the "clear and convincing evidence" standard in the context of a police disciplinary matter, the applicant argued the "clear and convincing evidence" standard is not equivalent to a balance of probabilities but is in fact a higher standard.

The Court dismissed the application for judicial review, holding that pursuant to F.H. v. McDougall, 2008 SCC 53, there is only one civil standard of proof: balance of probabilities. In F.H., the Supreme Court of Canada held "clear and convincing evidence" relates to the nature of the evidence required to justify the standard of proof, rather than to the recognition of a different standard of proof. In order to meet the balance of probabilities standard, the quality of the evidence must be sufficiently clear and convincing. The sufficiency of the evidence is met when it establishes an issue on the balance of probabilities. There is no intermediate standard of proof between balance of probabilities and beyond a reasonable doubt. In Penner, the Supreme Court of Canada considered "clear and convincing evidence" in the absence of any analysis of whether that standard of proof was actually applicable to police discipline matters and without referring to any jurisprudence regarding the applicable standard of proof. Remarks in Penner regarding "clear and convincing evidence" relied on by the applicant could not be taken as intending to overturn, vary, or modify F.H.

The Court concluded police discipline matters are civil proceedings whose sanctions are administrative and relate to employment matters. The standard of proof is the civil standard of a balance of probabilities.