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Police - Discreditable Conduct. Carrique v. Leach
In Carrique v. Leach (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR, this brought by the Commissioner of the Ontario Provincial Police against an IPRD decision against "the direction of the Complaints Director of the Law Enforcement Complaints Agency (“LECA”) ... to impose a penalty or agree to a penalty in respect of a finding, made pursuant to section 71 of the Police Services Act, R.S.O 1990, c.P.15 (“the PSA”), ... [officers] ... had committed discreditable conduct in violation of section 2(1)(a)(xi) of the Code of Conduct, .... in its investigation of a police officer’s complaint that she had been sexually assaulted by another police officer".
Here the court considers the 'discreditable conduct' standard (under the old PSA):[53] A finding of discreditable conduct under cl. 2(1)(a)(xi) of the Code of Conduct requires a finding that a police officer engaged in conduct that is “likely to bring discredit upon the reputation of the police force of which the officer is a member”.
[54] Whether a police officer committed discreditable conduct turns on “… whether a reasonable member of the community, fully aware of the facts, would find that the conduct would likely discredit the reputation of the [police force] if it were to become public knowledge”. In the absence of evidence as to the expectations of the community, the IPRD is to use their own judgment and place themselves in the position of a reasonable person fully apprised of the facts to determine if the test has been met.: Cudney, #254 v. St. Thomas Police Service, 2023 ONSC 3443 (Div. Ct.), at paras. 32-33.
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[57] In finding that the Responding Officers had committed discreditable conduct, the IPRD did not acknowledge that the test for finding discreditable conduct is whether a reasonable member of the community, fully aware of the facts, would find that the conduct would likely discredit the reputation of the police force if it were to become public knowledge. More importantly, his reasons do not reflect the reasonable application of that test. The reasoning outlined by the Ontario Divisional Court in A.Z. v. Office of the Independent Police Review Director, 2023 ONSC 6365, at para. 55, is also applicable in these circumstances:A reasonable apprehension of bias is to be determined not from the standpoint of the decision-making organisation, or from that of the complainant. Rather, the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. [Citations omitted] [Emphasis added] ....
[61] The IPRD’s conclusion that the Responding Officers had committed discreditable conduct in their investigation does not reflect the deference to be afforded to choices made in good faith during a police investigation. In Boua v. Office of the Independent Police Review Director, 2024 ONSC 2172, 173 O.R. (3d) 165, at para. 16, the Divisional Court stated:Complainants are entitled to a comparatively low level of procedural fairness with respect to investigations because they are not facing a concrete impact to their rights and interests. It is the police officers who are at risk of findings of misconduct and the resulting consequences. Additionally, significant deference is owed to the procedure chosen by the TPS in its investigation. The law does not require a perfect investigation and courts are reluctant to interfere in an administrative decision-maker's investigative process unless there is bad faith or patent unfairness. [Citations omitted] [62] The complainant submits the IPRD found that the Responding Officers had “seriously undermined” public confidence in the police service as “the OPP officers’ failure to maintain impartiality, their neglect in interviewing pivotal parties, and their inadequate assessment of the evidence constituted a significant breach of the professional standards expected of them”. The complainant also submits that the IPRD had found that Responding Officers had “significantly undermined the integrity of the entire investigative process”. No such findings were made by the IPRD.
[63] The IPRD submits that on a review under s. 71 of the PSA the IPRD is only required to determine whether there is sufficient evidence to believe, on reasonable grounds, that the conduct of the Respondent Officers constituted misconduct. The IPRD further submits that this standard presents a low evidentiary threshold and that allegations of misconduct are not subject to the higher standard of clear and convincing evidence. There is only one civil standard of proof at common law and that is proof on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40; Outram v. College of Massage Therapists of Ontario, 2025 ONSC 4201, at para. 33.
[64] I agree with the views expressed by the Commissioner and the Responding Officers that the IPRD approached the issue of whether discreditable conduct had been committed from the eyes of the complainant rather than from the dispassionate perspective of the reasonable member of the community. Applying the correct test as set out in Cudney, the evidence before the IPRD could not support a finding that on a balance of probabilities the conduct of the Respondent officers constituted misconduct. . Clarke v. Toronto Police Service 43 Division
In Clarke v. Toronto Police Service 43 Division (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR, here against the Independent Police Review Director's review (dismissed) of the police chief's disposition of his police complaint (dismissed).
Here the court considered 'discreditable conduct' under the (old) PSA:Discreditable conduct
[25] Citing Senior Constable Alexander Krug and Ottawa Police Service, 2003 CanLII 75460 (ON CPC), the Director noted that the test for discreditable conduct is objective, such that the subjective perceptions of a complainant, the officer’s superiors, or the decision maker, are not determinative. To determine whether an officer committed discreditable conduct, the officer’s actions should be weighed against the “reasonable expectations of the community.”
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[49] In his reasons relating to discreditable conduct, the Director says that the video shows Constable Kerr to be dismissive of Mr. Clarke’s concerns but makes no mention of his argument that the video proves that Constable Kerr lied. Similarly, he makes no mention of the fact that Detective Grant failed to respond to the same argument in her report.
[50] The reasons of both Detective Grant and the Director fail to meaningfully grapple with the central argument raised by Mr. Clarke. In the result, I find that the Director’s decision to confirm Detective Grant’s finding that the allegation of discreditable conduct was unsubstantiated was unreasonable.
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