On September 27, 2010, the Ontario Court of Appeal ruled in Penner v. Niagara (Police Services Board) that Wayne Penner’s civil claim for damages against two police officers was barred by the application of the issue estoppel branch of the res judicata doctrine as the issue had already been litigated in the context of a police disciplinary hearing. This 2010 decision from the Court of Appeal seemingly brought an end to Wayne Penner’s attempt to hold two police officers accountable for their alleged misconduct that occurred in 2003 at the Ontario Court of Justice in St. Catherines.
On January 28, 2003, Wayne Penner was sitting in the body of the courtroom where his wife was defending herself against a traffic charge that she faced pursuant to the Highway Traffic Act. Officer Parker was on the stand being cross-examined by Mr. Penner’s wife. During the course of the cross-examination, Mr. Penner was alleged to be making ‘chirping’ noises which weren’t loud enough to be caught on the court recording devices, but were nonetheless disturbing to the Prosecutor and Court Officer. Upon the completion of his evidence, Officer Parker sat in the vicinity of Wayne and Officer Koscinski, who was in Court on an unrelated matter. At that point, Officer Parker turned to Wayne and told him that he could or would be arrested. Mr. Penner became upset and began complaining loudly that Officer Parker had threatened to arrest him (and this was caught on the court recording device). The Prosecutor asked the presiding Justice of the Peace to consider removing Mr. Penner from the courtroom. The Justice of the Peace never made this order.
Shortly thereafter, while Mr. Penner’s wife was being sworn in, the Court Officer ordered Mr. Penner out of the courtroom. Officer Parker immediately rose and put his hands on Mr. Penner, directing him to get out. Mr. Penner pulled away. At this point Officer Parker, with the aid of Officer Koscinski, placed Mr. Penner under arrest. They dragged Mr. Penner out of the courtroom and delivered empty hand and knee strikes to subdue him. Of note is that the presiding Justice of the Peace fled the Courtroom and asked the clerk of the court to call 9-1-1.
Mr. Penner was taken to the station where he was booked, strip-searched and charged with causing a disturbance, breach of probation, and resisting arrest. Upon being taken to the hospital, Mr. Penner was observed to be unsteady on his feet. He had a black eye, scrapes, sore ribs, a sore elbow, a bruised knee, and a sore wrist. Mr. Penner’s wife took photographs of the injuries. All charges against Mr. Penner were subsequently withdrawn by the Crown and Mr. Penner pursued a public complaint against the two officers pursuant to the former Part V of the Police Services Act.
The Disciplinary Proceedings
Under the former Part V procedures which have since been altered by the establishment of the Office of the Independent Police Review Director (“OIPRD”), the Chief of Police screened the complaint and determined that the matter warranted proceeding to a disciplinary hearing. The hearing was presided over by a Hearing Officer who is appointed by the Chief and who in this case, as in most cases, was a retired Police Superintendant. The police prosecutor appointed by the Chief in this case, as in most cases, was a senior officer from the same police force of equal or higher rank than the officers charged. Officers Parker and Koscinski were charged with two offences pursuant to the Police Services Act: 1) without good and sufficient reason making an unlawful or unnecessary arrest, and 2) using unnecessary force against a prisoner.
The disciplinary hearing took place over several days during which time 13 witnesses were called and 32 exhibits were filed. The key issue that the Hearing Officer needed to decide was whether the courtroom was a ‘public place’ such that officers had authority to arrest a citizen for causing a public disturbance in a courtroom that was being presided over by a Justice of the Peace. A legal opinion was sought by the Hearing Officer on the issue. On the basis of this opinion, the Hearing Officer concluded that the courtroom was a public place and that the officers had the right to arrest a citizen for causing a public disturbance. Since they had lawful authority for the arrest and Mr. Penner was actively resisting, and since the officers used appropriate use of force techniques, the officers were cleared of any wrongdoing.
The Disciplinary Appeal
Unsatisfied with the result, Mr. Penner appealed, as of right, to the Ontario Civilian Police Commission (“OCPC”). The Commission reversed the Hearing Officer’s decision and imposed discipline of four days lost pay for Officer Parker and two days lost pay for Officer Koscinski. The Commission did not find any authority under the Police Services Act to order the officers to make a public apology to Mr. Penner, as he had requested in his ‘submissions’ on the appropriate penalty.
In reaching this result, the Commission held that the Hearing Officer erred in failing to decide whether the powers of the Justice of the Peace in maintaining order within their courtroom trumped the powers of the police officers to affect an arrest for causing a public disturbance within the courtroom. After consulting the relevant authorities, the Commission concluded that the officers do have authority to arrest for causing a public disturbance in a courtroom but “absent either a clear and present threat or direction by the Court, we believe that such authority is superseded by the court’s power to deal with disruptive behaviour falling under the broad definition of contempt.” In reaching this conclusion, the Commission made reference to the fact that the police officers did not give Mr. Penner an opportunity to leave the courtroom voluntarily upon being instructed to do so by the Court Officer before they laid their hands on him. Accordingly, the Hearing Officer’s decision was reversed and the officers were found guilty of misconduct.
It is at this point that things become troubling on many different levels. The officers applied for judicial review of the Commission’s decision. The Divisional Court held that the Commission erred by casting doubt on some of the findings of fact made by the Hearing Officer and by requiring the Hearing Officer to resolve the issue of the powers of the Justice of the Peace to control the proceedings. As a result, the court quashed the decision of the Commission and restored the decision of the Hearing Officer.
Mr. Penner was not represented at the disciplinary hearing, the OCPC appeal, or the judicial review application, nor did it appear that he made any meaningful submissions at any stage of the proceedings, and yet the Superior Court decided to order costs against him in the amount of $7,500. How can the court justify ordering costs against an unrepresented party for a decision reached by the OCPC on their own review of the record? As he was unable to hold the officers accountable through the police complaints process under the Police Services Act, Mr. Penner attempted to hold them accountable through a civil action for damages. This, as it turned out, was a costly decision.
The Civil Action
Mr. Penner filed a civil claim against the two officers as well as the Niagara Regional Police Services Board alleging unlawful arrest, unnecessary use of force during and after the arrest, false imprisonment, and malicious prosecution. All of his claims were struck on the basis of issue estoppel at the Divisional Court in an unreported judgment. The defendants were awarded costs in the amount of $10,353. Mr. Penner appealed this decision to the Court of Appeal where his appeal was dismissed.
In the course of dismissing his appeal, the Court of Appeal applied the three-prong test for issue estoppel. For the test to be met, the respondent police officers had to show that: 1. The same question was decided in the disciplinary proceedings; 2. The judicial decision said to create the estoppel is final (which Mr. Penner conceded); and, 3. The parties, or their privies, to the judicial decision are the same persons as the parties, or their privies, to the proceedings in which the estoppel is raised.
Even if all three prongs were met, the Court still had a residual discretion to not apply it if to do so would be unfair or work an injustice.
The Court of Appeal Decision
The first step of the test was met because the questions of lawfulness of the arrest and unnecessary use of force were already decided adversely to Mr. Penner at the disciplinary hearing. That decision was final as Mr. Penner did not appeal the judicial review decision by the Divisional Court (although he unsuccessfully sought leave to appeal the costs order). So the only real issue that the Court of Appeal had to decide was whether the parties were the same, and if they were, whether applying issue estoppel to bar the claim would be unfair or work an injustice. The Court concluded that the parties were the same and the bar would not work an injustice.
Leaving aside the application of the issue estoppel, there was an element of unfairness at play here. Mr. Penner won his appeal before the OCPC. The officers decided to judicially review this decision and were successful. At the end of that proceeding, Mr. Penner was stuck with a $7,500 bill. Undeterred by the financial burden in his quest for some form of police accountability and justice, Mr. Penner finally decided to hire counsel to represent him in a civil claim against the officers and NRPS. He lost again in the Court of Appeal and now has to pay the officers’ legal fees of $17, 855 for not being successful on the motion or at the Court of Appeal.
While the Court’s analysis of the ‘same parties’ branch of the test is troubling, it is nonetheless an accurate analysis of the statutory context as applied to the facts of the case. Mr. Penner had party status at the disciplinary hearing by operation of (then) s.69(3) of the Police Services Act, and he took advantage of that status as he “testified, cross-examined witnesses and made submissions on the legal issues”. How effective he was at any of these things would involve speculation as the record of the disciplinary hearing is not publicly available. What’s troubling is that the Court says that while he could have retained counsel, he chose not to. This ignores the economic realities of retaining counsel, especially in matters where your liberty is not at stake and where you have no prospects of financial gain.
Having established that all of the branches of issue estoppel have been met, the Court then turned to considering whether they should exercise their residual discretion to not apply the doctrine if it would cause an unfairness or injustice. The court outlined two factors which favoured Mr. Penner, and four factors which favoured not exercising this discretion. The court acknowledged that it’s not a simple mathematical calculation at this stage, but a qualitative assessment of the relevant considerations. One of the relevant considerations that the court identified – the different purposes of the two proceedings - ought to have been determinative.
The court accepted that the disciplinary hearing bears resemblance to an employer/employee grievance. This is an apt observation, especially in light of the fact that the Chief of Police is the one who brings the matter forward and assigns a Hearing Officer and a prosecutor for the proceeding. Furthermore, the remedial options available in the event of a misconduct finding are limited to affecting the officers’ employment with the police service. Had the Professional Standards branch of the police force discovered the alleged misconduct through their own investigation instead of being alerted to the issue by a complainant, the officers would have faced the exact same procedures and Mr. Penner would not have had party status at the hearing.
In the civil action, Mr. Penner sought financial compensation for the officers’ alleged misconduct. The Court accepted that the legislature didn’t intend to foreclose the civil action simply because a complaint was filed under the Police Services Act, and yet this is exactly the result that this decision achieved. The different purposes behind the disciplinary hearing and the civil action ought to have been determinative at this stage. Mr. Penner did not stand to benefit financially from any finding of misconduct at the disciplinary hearing even though the Court alludes to issue estoppel being a double-edged sword where a finding adverse to the officers would have considerably aided Mr. Penner in his civil claim.
But that begs the question. Why would a complainant turn to the public complaint process under the Police Services Act and have the issue prosecuted by a police officer from the same force and adjudicated by a police superintendant appointed by the Chief when he can have the matter adjudicated by a judge? From a complainant’s perspective, the Court of Appeal seems to have turned the issue into a zero-sum game: either you seek financial compensation for officers’ misconduct by way of a civil action or you seek to have them disciplined pursuant to the procedures outlined in the Police Services Act. These two remedies should not be mutually exclusive and yet with the limitation period for public complaints under the Police Services Act being set at six months, it seems that the practical reality is that they are mutually exclusive. This injustice/unfairness should have been sufficient to enable the Court to exercise their discretion in not applying issue estoppel.
Questions to Ponder
Mr. Penner has sought leave to appeal to the Supreme Court of Canada. If the Supreme Court decides that the Ontario Court of Appeal was right or denies leave to appeal, what can be done about the implications of that decision? It’s important to keep in mind that the Police Services Act has been amended when the OIPRD was established in the fall of 2008. While this represents significant reform in terms of oversight of the public complaints process, it arguably does not affect the impact of this decision as the complainant still has party status at the disciplinary proceeding, the OIPRD does not act as agent or counsel for the complainant, and the complainant needs consent from the OIPRD to withdraw a complaint. This is assuming that the complaint makes it to the hearing stage by passing the ‘frivolous, vexatious, bad faith’ stage as well as the ‘unsubstantiated’ option available to the Chief after conducting an investigation.
The impact of the Court of Appeal decision is that a civilian who seeks monetary damages due to a police officer’s misconduct which does not rise to the level of falling within the Special Investigations Unit’s mandate of resulting in ‘serious bodily harm or death’ should NEVER consider filing a public complaint through the OIPRD. If they choose that route and a former Superintendant decides that the misconduct is not proven on ‘clear and convincing evidence’ by a police officer from the same division of equal or higher rank appointed by the Chief, then their civil claim will be barred by operation of issue estoppel. But Wayne Penner didn’t seek monetary damages. When he was wronged, he just sought a ‘public apology’ which wasn’t even one of the disciplinary measures available under the Police Services Act. Once he was deprived of any meaningful measure of accountability through the public complaints route, he chose to seek redress through the civil avenue. This avenue just turned out to be extremely frustrating and costly.
What do you think about the implications of the Court of Appeal decision? In light of Professor Futterman’s discussion at the LEAP Conference last week about the potential of law school clinics, do you think there is a role for law school clinics around the province in providing legal assistance to complainants in police disciplinary hearings? Since Legal Aid Ontario funding for a complainant in a disciplinary hearing is out of the question, do you think the Court of Appeal decision effectively precludes a complainant from taking advantage of their party status at the disciplinary hearing in any meaningful way if they cannot afford to hire a lawyer? Should the Police Services Act be amended to exclude the complainant as a party and reduce their role to a witness, similar to the role that complainants play in a criminal trial?
Posted by Vlatko Karadzic (Windsor Law III)