OCPC-INQ#15-03

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF A HEARING UNDER S. 25 OF THE

POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED, INTO THE CONDUCT OF MAYOR DARYL BENNETT, MEMBER

OF THE PETERBOROUGH LAKEFIELD POLICE SERVICES BOARD

DECISION

Panel: David C. Gavsie, Associate Chair

Zahra Dhanani, Member

Last of Written Penalty Submissions Received: February 20, 2015

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, ON M7A 2T3 Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

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Appearances:

Richard Taylor, Counsel for Daryl Bennett

Prabhu Rajan, Brian G. Whitehead and Hera Evans, Counsel for

the Ontario Civilian Police Commission

Introduction

1. This is a decision with respect to penalty issued pursuant to

s. 25 (5) of the Police Services Act, R.S.O 1990, c. P. 15, as amended (the “Act”), following an inquiry pursuant to s.

25 (1) of the Act, into the conduct and performance of

duties of Mayor Daryl Bennett, as a member of the Peterborough Lakefield Police Services Board (the “Board”).

Decision on Penalty

2. For the reasons set out herein, pursuant to s. 25 (5) of the

Act, we order that Mayor Daryl Bennett be removed from

the Board.

Background

3. Daryl Bennett was a member of the Board overseeing the Peterborough Lakefield Police Service (the “Service”). Mr.

Bennett is also the mayor of Peterborough (“Mayor

Bennett” or the “Mayor”).

4. As per section 25 (1) (a) of the Act, on September 4, 2012, at an in camera meeting of its members, the Commission

decided on its own motion to investigate the conduct of Mayor Bennett as a member of the Board. As a result of its

investigation, the Commission decided to hold a hearing

into his conduct.

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5. The background facts, the allegations, the evidence and the

findings resulting from the hearing into the conduct of Mayor Bennett are set out in the Decision in the Matter of a

Hearing under s. 25 of the Police Services Act into the

conduct of Mayor Daryl Bennett, member of the

Peterborough Lakefield Police Services Board, (December 29, 2014, OCPC) (“Bennett Conduct Decision”).

6. In the Bennett Conduct Decision, supra, the Panel found Mayor Bennett guilty of all 11 specific allegations of

misconduct, thereby finding that he engaged in conduct which discredited and compromised the integrity of the

Board or the Service, contrary to Sections 2, 5, 6, 8,

and/or 13 of the Members of Police Service Boards - Code of Conduct, O. Reg. 421/97 (the “Code of Conduct”),

enacted under the Act.

7. In the Bennett Conduct Decision, supra, the Panel ordered the parties to provide written submissions on penalty.

Issues

8. The issues to be decided in this decision are as follows:

1) Does the Commission have jurisdiction to issue a penalty?

2) If so, what is the appropriate penalty based on relevant sentencing factors?

Reasons and Analysis

Jurisdictional Question:

9. Counsel for Mayor Bennett informed the Panel in his written

submission on penalty that the Board was disbanded on

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December 31, 2014 and that Peterborough now has a

police services board separate from Lakefield called the Peterborough Police Services Board (the “PPSB”). The

PPSB now oversees the Peterborough Police Service

(“PPS”).

10. Counsel for Mayor Bennett also advised the Panel that

Mayor Bennett is not a member of the PPSB and because of

this, counsel argued that the Commission no longer has the jurisdiction to impose a penalty of removal, in that the

Mayor is not currently a member of a police services board.

11. We do not agree with this submission.

12. The Commission has an obligation to do what is just in the

matters that come before us. In reference to Commission Powers, section 3.5 of the Commission Rules of Practice

(the “Rules”) states:

Where matters are not covered by these Rules,

the practice will be decided by the Commission as the Commission considers just.

13. We find that it would not be just to consider evidence that

is being relied on by a party in its submissions that the other party did not have a chance to examine and respond

to with their own evidence.

14. The Panel is tasked with deciding a penalty based on the

hearing into the conduct of Mayor Daryl Bennett that occurred from March 5, 2013 to May 16, 2014 while Mayor

Bennett was a member of the Board

15. To ascertain penalty, the Panel can only rely on evidence

that was put on the record during the period of the hearing into this matter.

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16. The Panel held a full hearing with over 23 days of evidence,

14 witnesses, video and audio recordings and hundreds of pages of disclosure material. The Panel prepared and

released the Bennett Conduct Decision, supra, and we are

fully equipped to make a decision on penalty based on the

evidence that was properly put before us.

17. At the point that a decision on the conduct of Mayor

Bennett was released, December 29, 2014, he was still a member of the Board.

18. This Panel cannot address any new evidence that was

submitted as part of the penalty submissions as this would

amount to a breach of natural justice and procedural fairness.

19. Counsel included as part of his submissions a printed page

from the PPS website listing current members of the PPSB. This was provided to suggest Mayor Bennett is not a

member of the PPSB. This information also is not evidence

on the record and we cannot make any findings based on this information, nor can we use it in arriving at our

Decision.

20. Indeed we have no way of integrating this information fully into this Decision, as it has not been wholly examined. The

Commission’s counsel has not had the opportunity to test

the information or to bring its own evidence in response to this information.

21. There is nothing before us that would allow us to use this

information in a just and fair manner.

22. This penalty decision therefore can only address the

conduct of Mayor Bennett while he was still on the Board, and apply a corresponding penalty. It is very important to

note here, that even if the Mayor is not on the PPSB currently, pursuant to Part III of the Act, the Mayor, as

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head of a municipal council, is entitled by law to choose to

be a member of the police services board in his or her municipality.

23. A further point we make on this issue was raised by

Counsel for Mayor Bennett, who engaged in argumentation about the word “remove” in subsection 25(5) of the Act

stating that if the PPSB no longer exists, he cannot be

“removed” from it. This is a very literal and narrow approach to the wording in the Act.

24. As per the Legislation Act, 2006, S.O.2006, c.21, sch. F,

the Panel takes a more liberal and purposeful approach in

deciding this issue and imposing a penalty based on Mayor Bennett’s conduct. Section 64 (1) of the Legislation Act

states that:

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal

interpretation as best ensures the attainment

of its objects. (emphasis added)

25. The legislative purpose of the Act is found in its Declaration of Principles in s. 1, which provides that:

Police services shall be provided throughout

Ontario in accordance with the following

principles:

…

3. The need for co-operation between the providers of police services and the

communities they serve.

26. The Ontario Court of Appeal held in Browne v. Ontario

Civilian Commission on Police Services [2001] O.J. No.

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4573 that the legislative purpose of the Act is to “increase

public confidence in the provision of police services.”

27. While the Mayor may or may not be sitting on the current

police services board in Peterborough, as the head of a

municipal council he is entitled to do so if he chooses. Also, while the new board is called something different it still

serves the same very important purpose: to act as the

civilian governance body of the police service in Peterborough.

28. In our role of providing civilian oversight of policing in the

Province, the Commission must maintain the public

confidence in the provision of police services.

29. To that end we find that it is incumbent on us to impose a penalty, after we have held a year long, 23 day inquiry into

the conduct of Mayor Bennett. The public has an interest in a resolution in this case, particularly because of the

importance of this matter, and also because of the lengthy

hearing, the immense public resources invested and the Mayor’s conduct which was found to be quite

unsatisfactory.

30. In Ontario, police services and police service boards (and its members) are ultimately accountable to the public

through the Commission. The imposition of a penalty in this

case is not solely a punitive act but an obligation of the Commission to protect the public interest.

31. It is a power that allows the Commission to prevent further

harm after a member of a police services board has been found guilty of misconduct. To thwart this power would be

to paralyze the Commission from realizing its role to ensure

policing is conducted in communities in a safe and appropriate manner. Appropriate oversight by police

services civilian boards is a critical element in ensuring that takes place.

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32. To be able to respond to and curtail the inappropriate conduct of a board member is critical to the Commission’s

role as an oversight body. It will also ensure a high

standard of policing and police oversight in Ontario.

33. A member of the board must conduct him or herself in a

“satisfactory manner”. If he or she does not, that person

must not be allowed to continue without consequence.

34. The public requires a resolution based on this Panel’s finding that Mayor Bennett behaved in ways that discredit

the Service and the Board.

35. Section 25.5 of the Act states that:

If the Commission concludes, after a hearing, that

a member of a board is guilty of misconduct or is not performing or is incapable of performing the

duties of his or her position in a satisfactory

manner, it may remove or suspend the member.

36. Our penalty decision is based on the evidence that was before us during the hearing, which concluded in a finding

that while on the Board, Mayor Bennett committed serious misconduct.

37. There is nothing in the legislation that states that the Commission cannot make a penalty finding after a finding

of misconduct, if during the time between the conduct decision and the penalty decision there has been a change

of status of the subject board member. In this regard, we note s. 90 of the Act which deals with police officers who

resign or retire before a complaint against them is finally

disposed of. No further action can be taken, unless such person becomes a member again of a police service within

five years, in which case, the complaints process resumes.

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There is no such limiting provision for members of police

service boards.

38. We agree with Commission counsel’s submission that to

interpret the legislation in a way that would allow the

Mayor to avoid sanction would likely have the effect of decreasing public confidence in policing.

39. We also agree with Commission counsel’s submission that the legislative provisions must be interpreted within the

practical context of the matter.

40. The context of this matter is that there are constant

changes of membership in police service boards due to individual members choices, municipal and provincial

elections and long-term political negotiations. Within that context, if the Commission was unable to render a decision

every time there was a political shift, the Commission would be rendered powerless in many instances.

41. From the investigation stage to the release of the Bennett Conduct Decision, supra, there has been a lapse of close to

three years. There are bound to be changes as a result of the lengthy time it has taken to move through this process,

including the lengthy year long hearing.

42. If we were to apply a narrow interpretation in this matter,

any investigation of a police services board member a year or two prior to an election, could be thwarted at the final

stages if there was a change in status during that time. We find that that would be completely contrary to the public

interest goals of the Act.

43. Counsel for Mayor Bennett relies on Donald MacNeil,

Member of the Barrie Police Services Board, (February 10, 2012, OCPC), where it was held that the Commission

lacked jurisdiction to continue a hearing into a board

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member’s conduct under s.25(1) because the board

member ceased to be a member of the board.

44. There are significant distinctions between the two cases,

including:

a) In MacNeil, supra, the hearing of evidence never

even began. In this case there have been 23

hearing days, closing submissions received in writing and a decision on conduct already issued.

b) In MacNeil, supra, the hearing was delayed by one

month with the knowledge that Donald MacNiel

would cease to be a board member. In the case before us it is still not evidence properly before us

that Mayor Bennett is no longer a member of the Board.

c) In MacNeil, supra, there was a motion brought

and heard on the issue of jurisdiction. No such

motion was brought or heard in this case.

d) In MacNeil, supra, there was no finding as to the conduct of the board member. In the case before

us, a lengthy 75 page decision on the Mayor’s conduct was released in December, 2014 when he

was a member of the Board: see Bennett Conduct

Decision, supra.

e) In MacNeil, supra, once Donald MacNeil ceased to be a board member, he was not in a position

where he had the legislated right to sit on the police services board if he wanted to. In the case

before us, even if Mayor Bennett is not on the

current police services board, as Mayor he could choose to do so (but for this pending decision).

This right would be extended for as long as he continued to be the Mayor of Peterborough.

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45. Police services boards in Ontario are the cornerstone for

civilian oversight of policing, ensuring police are accountable to the public and to the communities they

serve. Members of these boards must also be accountable

to the public and it is incumbent on the Commission to

make decisions that uphold the primacy of this accountability. This indeed is the whole purpose behind s.

25 as it relates to police service board members.

46. Reviewing the conduct of a board member is critical to the

Commission’s role as an oversight body and in ensuring a high standard of policing and police oversight in Ontario.

47. It is clear that when interpreting provisions of the Act, the courts have placed significant weight on the legislation’s

public interest goals and the importance of increasing public confidence in policing: see Peel (Regional

Municipality) Police v. Ontario (Director, Special Investigation Unit) [2012] OJ No. 2008 (CA) and Wood v.

Schaeffer, 2013 SCC 71.

48. The Commission’s jurisdiction under s. 25 must include the

ability to impose a penalty where there has been a full inquiry and hearing on conduct resulting in a disposition of

guilt. Frustrating the authority to do so would impede the public interest purpose of the Act and undermine the

public’s confidence in policing.

49. A member of a police services board must conduct him or

herself in a “satisfactory manner”. If he or she does not, consequences must arise. It is with this emphasis that we

make our decision on the question of jurisdiction.

50. We find that the Commission continues to have jurisdiction

to complete the s. 25 proceeding in this case and therefore to impose a penalty on Mayor Bennett based on our finding

that he is guilty of 11 specific counts of misconduct while sitting on the Board.

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Application of Sentencing Factors

51. Counsel for the Commission submitted that removal from

the Board was the appropriate penalty in this case.

52. Counsel for the Mayor argued that Mayor Bennett has been

required to be off the Board since September 17, 2012 by

virtue of subsection 14(1) of the Code of Conduct. He asserted that this suspension and the resulting

consequences represents a more than sufficient penalty and that no other penalty should be imposed.

53. The Inquiry into the Conduct and Performance of Duties of Norman Gardner of the Toronto Police Services Board

(March 1, 2004, OCCPS, hereinafter “Gardner”), provides guidance as the factors that are relevant to an assessment

of the appropriate disposition under ss. 25 (5) of the Act were considered. They are: public interest, seriousness of

the misconduct, damage to the reputation of the Board and

the Service, recognition of seriousness of misconduct, ability to reform or rehabilitate, general deterrence,

employment history and personal circumstances.

54. Our decision on penalty is primarily based in the indisputable importance of the need for police service

board members to behave in a manner that increases or at

a minimum maintains public confidence in policing. The role of police service board members cannot be understated.

There is a very high public interest element in this penalty decision.

55. In his June 2012 post-G20 report (“Morden Report”),

Justice Morden succinctly describes the importance of the

role of police services boards and civilian oversight of police. He states:

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Civilian oversight of our police is essential. It acts

as a check and balance against the legal powers society has given the police to enforce the law.

Effective oversight of the police is the way that the

public and police remain partners in the

preservation of public safety. For the police to be effective in our communities, the public must have

respect for those that perform the policing

function. The governance and accountability that civilian oversight creates work in

tandem...Therefore, effective fulfillment of the governance role that police boards play ensures

that decisions made and actions taken by police

are reflective of the community’s values.

56. The Morden Report prescribes a new era in policing that underscores the ever critical role that police service boards

play in policing. The members of these boards must be worthy and fitting of such an important and necessary

position.

57. The Panel has in detail examined the behaviour of Mayor

Bennett in the Bennett Conduct Decision, supra. For that reason we will not review all of the facts, allegations and

findings in this decision.

58. Based on that conduct and a review of all the Commission

cases into the conduct of police services board member conduct, we find the conduct demonstrated in this case to

be completely unacceptable and unsatisfactory: see: “Gardner”, supra; A Hearing Under Section 25 of the Police

Services Act into the Conduct and Performance of Duties of the Members of the Wallaceburg Police Services Board

(June 19, 1996, OCCPS, hereinafter “Wallaceburg”);

Ontario Civilian Commission on Police Services and Arnold Minors (December 19, 1994, OCCPS,hereinafter “Minors”);

and Matter of an Inquiry under s. 25 (1) of the Act Into the Conduct and Performace of Duties of Greg Oliver, A

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Member of the Stirling-Rawdon Police Services Board

(October 7, 2014, OCPC, hereinafter “Oliver”).

59. As per the Bennett Conduct Decision, supra, this Panel has

found that Mayor Bennett’s behaviour while on the Board

was plain and simply, unsatisfactory. His conduct undermined the confidence of his colleagues, delegitimized

those he governed in the Service and caused concern to

the community he was responsible to. His actions quite specifically diminished the public’s confidence in the Board,

the Service and in this case most notably the Chief.

60. Mayor Bennett does not seem to agree to or feel the need

to abide by his responsibilities and obligations as a Board member. Mayor Bennett testified and demonstrated a belief

that he should be able to say whatever he wants, whenever he wants and to whomever he wants.

61. The issues with Mayor Bennett’s conduct on the Board were

chronic and pervasive. The Mayor’s conduct was so

extreme and so far off any range of acceptable member conduct that we find he has exhausted the possibility of

ever being an effective member of the Board.

62. Mayor Bennett’s reprehensible behaviour was evidenced in many ways, including:

a) threatening other Board members;

b) not voicing his concerns at Board meetings, in some instances even voting in favor of actions

that he would later publicly criticize the Chief or the Board for undertaking;

c) voicing his concerns about Board matters to the media before addressing them responsibly with

the Board;

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d) making allegations against the Chair of the Board

that were completely unsubstantiated by factual evidence;

e) making false statements to the Minister of

Community Safety and Correctional Services;

f) making public declarations about the Chief’s and

the Service’s negative intentions and acts to “spin” statistics on crime.

g) continually going behind the interests of his

colleagues on the Board;

h) expressing opinions to the public and media on

policing issues without expressly stating that he was voicing his own “personal opinion”; and

i) expressing himself in a manner that was

aggressive, confrontational, attacking and

offensive.

63. Mayor Bennett's offensive behaviour was acute, unabating and consistent. The conduct before us is of the most

serious nature.

64. Mayor Bennett’s comments in public directly undermined

the Board. To consciously sabotage the efforts of the Board in public is contrary to any conduct expected of Board

members particularly the conduct obligations explicitly articulated in the Code of Conduct.

65. We found his behaviour to demonstrate a blatant disregard

for the effective and efficient governance of policing and a

complete lack of respect for his colleagues on the Board. His conduct was counter-productive to the goals of the

Board, the Code of Conduct and the Act.

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66. The duties and responsibilities of police service boards

which oversee municipal or police services are clearly articulated in the Act. Section 31 (1) states:

A board is responsible for the provision of adequate and

effective police services in the municipality and shall,

(a) appoint the members of the municipal police

force;

(b) generally determine, after consultation with the chief of police, objectives and priorities with

respect to police services in the municipality;

(c) establish policies for the effective management of

the police force;

(d) recruit and appoint the chief of police and any deputy chief of police, and annually determine

their remuneration and working conditions, taking

their submissions into account;

(e) direct the chief of police and monitor his or her performance;

(f) establish policies respecting the disclosure by

chiefs of police of personal information about

individuals;

(g) receive regular reports from the chief of police on disclosures and decisions made under section 49

(secondary activities);

(h) establish guidelines with respect to the

indemnification of members of the police force for legal costs under section 50;

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(i) establish guidelines for dealing with complaints

under Part V, subject to subsection (1.1);

(j) review the chief of police’s administration of the

complaints system under Part V and receive

regular reports from the chief of police on his or her administration of the complaints system.

67. Based on all of the examples of disrespectful conduct that are evidenced in the record and in our findings, we do not

believe that Mayor Bennett would ever be able to fulfill the mandate of a Board member, in particular as long as he

continued to be the Mayor of Peterborough.

68. Mr. Camille Parent, the community member who originally

complained to the Commission about Mayor Bennett’s conduct, stated several times in his testimony that the

Service was under constant attack by the Mayor.

69. In reference to the media articles that had been disclosed

into evidence at the hearing, Mr. Parent stated:

The Police Chief couldn’t say anything without the Mayor casting a shadow of a doubt on everything

that he said. The Mayor’s office was continuously attacking the Chair. Again these comments should

have been done behind closed doors, closed

session, because that’s when you can talk with lots of emotion. We all have said something

emotionally but it should not get out to the public. People were coming into my store saying can you

believe this? I recently read an article, and the negativity is still happening.

70. We cannot allow similar consequences again: as a result of Mayor Bennett’s conduct there was damage to the Service,

to Service staff, to other Board members and to the community as a whole. This is intolerable and cannot be

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allowed. The penalty in this case must address specific

deterrence in that Mayor Bennett should not be allowed to conduct himself in this way as a member of the Board. The

penalty must also address general deterrence, this kind of

conduct cannot be accepted from any police services board

member, and that should be clear as a result of this decision on penalty.

71. Furthermore, Mayor Bennett has not expressed any remorse about his conduct. At the hearing he was asked

specifically if he was apologetic about any of his behavior. He said no. We are convinced that should Mayor Bennett

be allowed to be on a police services board again, nothing

would change. His conduct would be based on his strongly held belief that, as a Mayor, he can do and say whatever

he wants wherever he wants.

72. It was this Panel’s finding that Mayor Bennett had a serious misunderstanding of the Act and of the role of police

service board members. In the Bennett Conduct Decision,

supra, we found Mayor Bennett’s behaviour to escalate conflicts both within the Board and in the community, to

sabotage efforts of the Service and the Board and to create upset with various stakeholders.

73. His conduct was deliberate, conscious and unrepentant.

There is no remedial measure for this kind of conduct. If

someone does not see a problem with his behaviour he is not at all likely to change that behaviour. There is no

evidence before us that would suggest Mayor Bennett is willing to alter his behaviour.

74. Mayor Bennett’s conduct was far below the standard of

appropriate conduct and there is an absence of mitigating

factors to provide any reason to allow him to ever serve on the Board or any other police services board again.

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75. Counsel for Mayor Bennett submitted that everything the

Mayor did was in order to fulfill his role as a mayor. While we do find that the Mayor takes his role as a mayor very

seriously, this does not provide any acceptable explanation

to his ceaseless undignified attacks of the Board, the

Service and the Chief.

76. Furthermore, it is not the Mayor’s intent that is at issue but

his conduct, which frankly put is inexcusable.

77. As a voice coming from the public, Mr. Parent stated what he thought were the appropriate measures in this situation

quite succinctly in his testimony:

With the negativity out there I think the best thing

would have been for him to remove himself at the early stages or to be removed from the Board.

78. We agree. For the reasons expressed herein, the Panel is of

the view that the only appropriate penalty is removal.

Decision on Penalty

79. Accordingly, pursuant to s. 25 (5) of the Act, we order that

Mayor Daryl Bennett is removed from the Board.

DATED AT TORONTO, THIS 22nd DAY OF April, 2015

David C. Gavsie

Associate Chair, OCPC

Zahra Dhanani

Member, OCPC