Johnstone & Cowling is Successful at the Supreme Court of Canada – Court Confirms That First Nations Policing Labour Relations Are a Provincial Matter

• The Supreme Court of Canada today dismissed the union’s application for leave to appeal the judgment of the Federal Court of Appeal in Nishnawbe-Aski Police Services Board v Public Service Alliance of Canada. In that case, the Court accepted the argument of lawyers from Johnstone & Cowling LLP that the habitual policing activities carried out by a First Nations Police Service fell within provincial labour relations jurisdiction under the constitution.This case concerned the Nishnawbe-Aski Police Service, a First Nations Police Service established under a tripartite agreement between the federal government, the Province of Ontario and the Nishnawbe-Aski Nation in 1994.The Service was funded in roughly equal shares by the federal and provincial governments. Its constables performed the same sort of policing functions that had been performed when the OPP provided policing in the relevant areas, and were empowered to enforce federal and provincial legislation. A relatively small proportion of officers’ time was spent on the enforcement of by-laws passed by local Band Councils.

  In 2005, the Canada Industrial Relations Board certified the Public Service Alliance of Canada to represent employees of the Service. In 2011, the Service, which was not at the time represented by Johnstone & Cowling LLP, brought an application to set aside PSAC’s certification. In November 2013, the CIRB dismissed the Service’s application on the basis that the Service was engaged in governance-related activities for First Nations communities, which fell within the federal Parliament’s constitutional power to regulate “Indians and lands reserved for Indians”.

  The Service then retained Johnstone & Cowling LLP and applied to the Federal Court of Appeal to have the CIRB’s decision quashed. David Cowling and Alex Sinclair argued that the CIRB’s interpretation of the constitution was incorrect. The Attorney General of Ontario intervened to support the Service’s position.

  A unanimous panel of the Court of Appeal agreed with the Service’s arguments and quashed the CIRB’s decision, holding that the labour relations of the Service, like those of other local police services, fell within provincial jurisdiction. The Court held that the general presumption that labour relations are provincially regulated may be overcome where two conditions are satisfied:

  1. The Court must first consider the “functional test”, considering whether the nature, habitual activities and daily operations of the employer constitute a federal undertaking. This entails a consideration of the services performed by the employer, its source of funding, and whether the regulation of the employer’s activities emanated from the federal or provincial level.
  2. If the functional test is inconclusive, the Court should proceed to consider whether provincial regulation of the employer’s labour relations would impair the “core” of a category of federal jurisdiction under the constitution.

  A connection with First Nations interests was not, on its own, sufficient to bring an entity within the federal jurisdiction for labour relations purposes.In this case, the function of the Service was to provide policing services in respect of the wider community in the relevant areas, which entailed enforcing the law in relation to both First Nations and non-First Nations individuals. The fact that the Service’s activities were focused on First Nations communities did not mean that the essence of those activities was not policing services, similar in nature to those provided by other provincial and municipal forces, which fell within provincial jurisdiction. Accordingly, the Court directed the CIRB to set aside the certification orders in respect of the union, and granted the Service the costs of its application to the Court.

  By rejecting the union’s application for leave to appeal, the Supreme Court has implicitly endorsed the Court of Appeal’s sensible application of the relevant constitutional principles. The mere fact that an employer has a connection to a First Nations reserve, or indeed to some other area of federal jurisdiction, is insufficient, in and of itself, to bring that employer’s labour relations within the ambit of the Canada Labour Code.

• March 18th, 2016:  Johnstone & Cowling Successful at OCPC: Dismissal of Officer for Discreditable Conduct Arising from Excessive Use of Force UpheldIn Turpin and the Durham Regional Police Service, the Ontario Civilian Police Commission confirmed Cst. Glen Turpin’s dismissal from the Durham Regional Police Service, which followed findings of misconduct relating to two incidents in which he used unnecessary violence against members of the public. The Commission also held that the officer was not permitted to resile from his guilty plea to Discreditable Conduct, even though the criminal convictions underpinning that alleged misconduct were quashed by the Court of Appeal.In the early hours of 12 March 2006, Cst. Turpin attended the scene of a disturbance outside a nightclub in Whitby, Ontario involving Martin Egan, who was 21 years old at the time. After Mr. Egan became agitated, Cst. Turpin threw him to the ground and arrested him for causing a disturbance. Later that evening, Cst. Turpin “grounded” Mr. Egan twice in his cell at the police station; as a result of the second grounding, Mr. Egan sustained a cut to his head that subsequently required nine stitches. Cst. Turpin also threatened to “punch [Mr. Egan’s] teeth right through the back of [his] head”.

  Cst. Turpin was convicted by the Superior Court of assault causing actual bodily harm to Mr. Egan, and of uttering a threat to cause bodily harm, in December 2009. These convictions were set aside by the Ontario Court of Appeal in March 2011 on the basis that the trial judge had improperly made certain findings in relation to videotape evidence. The matter was remitted to the Superior Court, where the assault charge was withdrawn, and Cst. Turpin pleaded guilty to the threatening offence.

  Meanwhile, on 4 June 2007, Cst. Turpin was dispatched to deal with a disturbance in Whitby, and eventually found himself at the home of Ryan Schwalm. When Mr. Schwalm refused to comply with Cst. Turpin’s instructions, Cst. Turpin arrested him, striking him twice in the process. Mr. Schwalm was brought to the police station, where Cst. Turpin marched Mr. Schwalm to his cell with his shorts around his ankles. Once in the cell, Cst. Turpin executed a “takedown” manoeuvre, as a result of which Mr. Schwalm struck the wall of the cell, sustaining multiple injuries including two black eyes, a cut on his face and various scrapes and bruises.

  The DRPS initiated disciplinary proceedings against Cst. Turpin in 2008, at which time he was suspended on full pay. Cst. Turpin never returned to active service.

  In June 2010, Cst. Turpin pleaded guilty to Discreditable Conduct in that he was guilty of the two criminal offences of which he had been convicted in December 2009, in respect of the incident involving Mr. Egan. After the Court of Appeal overturned those criminal convictions in March 2011, Cst. Turpin attempted to renege on his guilty plea, resulting in several years of satellite litigation which considerably lengthened the disciplinary proceedings. In August 2014, Ian Johnstone and Alex Sinclair of Johnstone & Cowling LLP successfully argued before retired Justice Gordon Killeen QC, a Hearing Officer, that Cst. Turpin was bound by his guilty plea. Meanwhile, in June 2012, Cst. Turpin was found to have committed Discreditable Conduct in respect of his use of excessive force on Mr. Schwalm.

  The hearing to determine the appropriate penalty in Cst. Turpin’s case took place in May, July and August 2015. Having considered all the evidence before him, including Cst. Turpin’s refusal to accept responsibility for his actions, the Hearing Officer, Supt. (ret) Morris Elbers, dismissed Cst. Turpin with immediate effect on 23 September 2015.

  Cst. Turpin appealed the penalty decision, as well as Justice Killeen’s decision that Cst. Turpin was bound by his guilty plea in respect of the incident involving Mr. Egan, to the Commission.

  Counsel for Cst. Turpin argued that even though he had pleaded guilty to Discreditable Conduct in having been convicted of assaulting and threatening Mr. Egan, the reversal of those convictions eradicated the foundation for the guilty plea in the disciplinary proceedings, rendering it a nullity. Cst. Turpin also challenged Supt. Elbers’ decision on penalty on the basis that he had not taken into account several mitigating factors, including certain positive aspects of Cst. Turpin’s employment record.

  Ian Johnstone and Alex Sinclair, who once again appeared for the DRPS before the Commission, maintained that Cst. Turpin’s guilty plea was not affected by the ultimate outcome of the criminal proceedings, on the basis that police disciplinary proceedings are wholly separate from any related criminal proceedings, which entail different standards of proof and procedural rules. The guilty plea was a tactical move taken with advice from counsel; accordingly, Cst. Turpin should be bound by it. The DRPS also argued that there was no basis for interfering with Supt. Elbers’ penalty decision, which was reasonable.

  In its decision, the Commission dismissed both aspects of Cst. Turpin’s appeal. Regarding the guilty plea, the Commission held that Cst. Turpin was not permitted to abandon his admission of misconduct because of his successful appeal in the criminal proceedings:

  At the time of the plea by [Cst. Turpin], he had been convicted of a criminal offence. His plea admitted the underlying facts of the offence and was properly before the Hearing Officer. In our view, the subsequent overturning of that conviction does not render the original plea a nullity. The plea was valid at the time it was made and it should stand.

  The Commission also noted that Supt. Elbers had considered thirteen factors in detail in arriving at his decision on penalty, and that it was not open to the Commission to revisit the weight given by the Hearing Officer to those factors. Further, a survey of other penalty decisions yielded the conclusion that dismissal was a reasonable penalty in the circumstances. The Commission therefore declined to disturb the penalty decision, and confirmed Cst. Turpin’s dismissal from the DRPS.This decision is important, as it affirms the principle that in police disciplinary proceedings, a guilty plea to Discreditable Conduct that is premised on criminal convictions is not necessarily overturned if those criminal convictions are reversed on appeal. An officer should not be permitted to “unring the bell” where he or she has freely admitted to misconduct, particularly where the admission was a tactical manoeuvre entered into with the benefit of legal advice. As the Commission acknowledged, the position would be different if, instead of pleading guilty in the disciplinary proceedings, Cst. Turpin had maintained his innocence and had been found to have committed misconduct on the basis of the criminal convictions: if that had been the case, the quashing of the convictions would likely have eliminated the finding of misconduct as well.

  The Commission’s decision also supports the view that unwarranted police violence is an exceptionally serious form of misconduct that, absent significant mitigating circumstances, is likely to support termination of the perpetrator’s employment.

• October 7th, 2015:  Johnstone & Cowling Successfully Argues That First Nations Police Labour Relations Should Never Have Been Within Federal Jurisdiction: Now a Provincial MatterIn Nishnawbe-Aski Police Services Board v Public Service Alliance of Canada, the Federal Court of Appeal accepted the argument of lawyers from Johnstone & Cowling LLP that the habitual policing activities carried out by a First Nations Police Service fell within provincial labour relations jurisdiction under the constitution, and were therefore outside the scope of the Canada Labour Code.This case concerned the Nishnawbe-Aski Police Service, a First Nations Police Service with approximately 150 officers and 40 civilian employees. The Service was established under a tripartite agreement between the federal government, the Province of Ontario and the Nishnawbe-Aski Nation in 1994, under which all policing responsibilities in the 35 communities under the Service’s jurisdiction were transferred from the Ontario Provincial Police to the Service. The Agreement provided for funding to be split between the federal government, which provided 48 per cent of core funding, and the province, which covered 52 per cent.

  The Service’s constables performed the same sort of policing functions that had been performed when the OPP provided policing in the relevant areas, and First Nations Constables were empowered to enforce federal and provincial legislation. A relatively small proportion of officers’ time was spent on the enforcement of by-laws passed by local Band Councils.

  In 2005, the Canada Industrial Relations Board certified the Public Service Alliance of Canada to represent employees of the Service. In 2011, the Service brought an application to set aside PSAC’s certification. In November 2013, the CIRB dismissed the Service’s application on the basis that policing was not within the exclusive jurisdiction of the provinces under the constitution. Because the Service was providing a governance-related service to First Nations communities, it fell within the federal Parliament’s constitutional power to regulate “Indians and lands reserved for Indians”.

  The Service applied to the Federal Court of Appeal to have the CIRB’s decision quashed. David Cowling and Alex Sinclair, of Johnstone & Cowling LLP, argued that the CIRB’s interpretation of the constitution was incorrect; the Attorney General of Ontario intervened to support the position of Johnstone & Cowling LLP.

  A unanimous panel of the Court of Appeal agreed with the Service’s arguments and quashed the CIRB’s decision, holding that the labour relations of First Nations police services, like those of other local police services, fell within provincial jurisdiction.

  Justice David Stratas noted that there is a general presumption that labour relations are provincially regulated, however that presumption may be overcome where one of two conditions is satisfied:

  1. The Court must first consider the “functional test”, considering whether the nature, habitual activities and daily operations of the employer constitute a federal undertaking. This entails a consideration of the services performed by the employer, its source of funding, and whether the regulation of the employer’s activities emanated from the federal or provincial level.
  2. If the functional test is inconclusive, the Court should proceed to consider whether provincial regulation of the employer’s labour relations would impair the “core” of a category of federal jurisdiction under the constitution.

  A connection with First Nations interests was not, on its own, sufficient to bring an entity within the federal jurisdiction for labour relations purposes.

  Turning to the facts of this case, Justice Stratas noted that in essence, the function of the Service’s constables was to provide policing services in respect of the wider community in the relevant areas, which entailed enforcing the law in relation to First Nations individuals, as well as non-First Nations individuals. The fact that the Service’s activities were focused on First Nations communities did not mean that the essence of those activities was not, at the end of the day, policing services, similar in nature to those provided by other provincial and municipal forces, which fell within provincial jurisdiction.

  The application of the functional test produced a conclusive result: the Service’s labour relations fell within provincial jurisdiction. There was, accordingly, no need to consider the second branch of the test. The Court directed the CIRB to set aside the certification orders in respect of the union, and granted the Service the costs of its application to the Court.This judgment represents a sensible application of the applicable constitutional principles. Given the presumption that labour relations fall within provincial jurisdiction, the mere fact that an employer has a connection to a First Nations reserve, or indeed to some other area of federal jurisdiction, is insufficient to bring that employer’s labour relations within the ambit of the Canada Labour Code. The CIRB fell into error in this case by neglecting to apply that presumption.

• September 23rd, 2015:  Johnstone & Cowling LLP has been successful in seeking the dismissal of Cst. Glen Turpin, who had worked for the Durham Regional Police Service since 1988, following his conviction on three counts of discreditable conduct under the Ontario Police Services Act relating to instances of excessive use of force against members of the public.In the early hours of 12 March 2006, Cst. Turpin attended the scene of a disturbance outside a nightclub in Whitby, Ontario involving Martin Egan, who was 21 years old at the time. After Mr. Egan became agitated, Cst. Turpin threw him to the ground and arrested him for causing a disturbance. Later that evening, Cst. Turpin “grounded” Mr. Egan twice in his cell at the police station; as a result of the second grounding, Mr. Egan sustained a cut to his head that subsequently required nine stitches. Cst. Turpin also threatened to “punch [Mr. Egan’s] teeth right through the back of [his] head”.Cst. Turpin was convicted by the Superior Court of assault causing actual bodily harm to Mr. Egan, and of uttering a threat to cause bodily harm, in December 2009. These convictions were set aside by the Ontario Court of Appeal in March 2011 on the basis that the trial judge had improperly made certain findings in relation to videotape evidence. The matter was remitted to the Superior Court, where the assault charge was withdrawn, and Cst. Turpin pleaded guilty to the threatening offence.

  Meanwhile, on 4 June 2007, Cst. Turpin was dispatched to deal with a disturbance in Whitby, and eventually found himself at the home of Ryan Schwalm. When Mr. Schwalm refused to comply with Cst. Turpin’s instructions, Cst. Turpin arrested him, striking him twice in the process. Mr. Schwalm was brought to the police station, where Cst. Turpin marched Mr. Schwalm to his cell with his shorts around his ankles. Once in the cell, Cst. Turpin executed a “takedown” manoeuvre, as a result of which Mr. Schwalm struck the wall of the cell, sustaining multiple injuries including two black eyes, a cut on his face and various scrapes and bruises.

  In June 2010, Cst. Turpin pleaded guilty to discreditable conduct in that he was guilty of the two criminal offences of which he had been convicted in December 2009, in respect of the Egan Incident. After the Court of Appeal overturned those convictions in March 2011, Cst. Turpin attempted to renege on his guilty plea, resulting in several years of satellite litigation which considerably lengthened the disciplinary proceedings. In August 2014, Ian Johnstone and Alex Sinclair of Johnstone & Cowling LLP successfully argued before retired Justice Gordon Killeen, a hearing officer, that Cst. Turpin was bound by his guilty plea. Meanwhile, in June 2012, Cst. Turpin was convicted of discreditable conduct in respect of his use of excessive force on Mr. Schwalm.

  The hearing to determine the appropriate penalty in Cst. Turpin’s case took place in May, July and August 2015. On behalf of the DRPS, Ian Johnstone and Alex Sinclair pressed for Cst. Turpin’s dismissal; Cst. Turpin, by contrast, argued that a short suspension would be an appropriate penalty in the circumstances. In ruling that Cst. Turpin should be dismissed with immediate effect, the hearing officer, Supt. Morris Elbers, was highly critical of Cst. Turpin’s conduct. Amongst other things, Supt. Elbers remarked that:

  • The assaults on Mr. Schwalm and Mr. Egan were “grossly inappropriate and lacked any reason [Cst. Turpin] could explain to his superiors”, and were “inexcusable”.
  • Cst. Turpin did not express remorse for his actions during the PSA hearings. Rather, he attempted to excuse his actions, to the point of giving untrue answers to the Tribunal.
  • Over the course of his career, Cst. Turpin had been disciplined on a number of occasions, but there had been little change in his behaviour.
  • Those who questioned Cst. Turpin’s authority did so at their peril, as Cst. Turpin was prone to losing control when challenged.

  Ultimately, Cst. Turpin’s usefulness to the DRPS had been extinguished by his conduct. In Supt. Elbers’ words:Honesty, integrity and accountability are characteristics a police officer must possess….

  Constable Turpin through this Hearing and the actions displayed resulting [in] these charges has lost these characteristics.

  The outcome in this case demonstrates the dim view taken of police officers who abuse their authority, particularly when such abuse is accompanied by a lack of remorse and a tendency to distort the truth in the course of disciplinary proceedings. Supt. Elbers remarked that “the disposition in this matter ought to leave no doubt as to the probable consequences of misconduct in this regard”, and the imposition of immediate dismissal, the most serious penalty permitted under the PSA, clearly reflects a desire to send a strong message that such misconduct will not be tolerated.

• July 30th, 2015:  Lawyers from Johnstone & Cowling LLP successfully argue that dissolution of police services board triggered severance payments for Chief and Deputy ChiefAn arbitrator has ruled that when the Peterborough Lakefield Community Police Services Board was dissolved, the severance payment provisions in the employment contracts of the Chief and Deputy Chief were triggered.From 1999 until 2014, the City of Peterborough and the Village of Lakefield were served by an amalgamated police service. From January 1, 2015 onwards, the Peterborough Police Services Board (the “PPSB”) took over the provision of policing services to Peterborough, and to Lakefield under contract.

  All officers of the dissolved service were offered employment with the new service. This included the Chief and Deputy Chief, whose employment contracts provided that if the service “ceases to exist in its present form either through being disbanded, amalgamated or the service being contracted out” and the Chief or Deputy Chief, as the case may be, is offered a position with the successor police service, a severance payment would become payable. The severance payment amounted to one year’s salary and benefits.

  A dispute arose as to whether the severance payment under the employment contracts was payable as a result of the dissolution of the old service and the establishment of the PPSB, and the matter was referred to arbitration.

  The PPSB argued that the Chief and Deputy Chief were not entitled to severance payments under their employment contracts as the dissolution of the former service was a “de-amalgamation”, rather than a disbandment, amalgamation or contracting out. Johnstone & Cowling, appearing for the Chief and Deputy Chief, took the view that the change to policing at the end of 2014 was a disbandment, or alternatively a dissolution followed by a contracting out, and that in either case a severance payment was triggered.

  Arbitrator Richard McLaren noted that the context of the severance payment clause was of critical importance, as the Chief and Deputy Chief were left in doubt about the nature of their continued employment over the summer of 2014 as the future policing arrangements in Peterborough and Lakefield were under consideration:

  For a considerable period of time, the Chief and Deputy did not know if they would be offered a further employment contract, or what the terms of that contract would be. The [severance payment provision] provided them some comfort to sign a new employment contract. The Chief and Deputy were not obligated to accept the new employment agreements. The language in dispute is, in effect, a signing bonus granted by the Predecessor Board and guaranteed to be paid by the [PPSB].

  Turning to the language of the severance payment clause itself, Arbitrator McLaren noted that the term “de-amalgamation” was a nebulous, “convenience” term rather than a legal one. By contrast, previous decisions had used the terms “disband” and “abolish” interchangeably. In Arbitrator McLaren’s view, the abolition of the amalgamated service was properly characterized as a disbandment for the purposes of applying the severance payment terms. The Chief and Deputy Chief were, therefore, entitled to the severance payments.

  Severance payment provisions such as those under consideration in these proceedings are common in contracts between police services across Ontario and their employees, and it is essential that police services boards and municipalities conduct thorough due diligence before embarking on any change to police service delivery, with a view to ascertaining the full cost of any such change.

• March 27th, 2015:  Lawyers from Johnstone & Cowling LLP have recently been successful in a novel case before Ontario Civilian Police Commission (the “Commission”). In Durham Regional Police Association v Durham Regional Police Services Board, the Commission held that an employee of Durham College who seconded to the Durham Regional Police Service (the “DRPS”) was not an employee of the DRPS.June MacDonald-Jenkins was a full-time faculty member of Durham College (the “College”). In July 2012, the DRPS and the College concluded a memorandum of understanding calling for the parties to develop a mutually beneficial relationship through, amongst other things, the sharing of expertise through a secondment program. A short time later, the DRPS and the College entered into a Secondment Agreement (the “Agreement”) under which Ms. MacDonald-Jenkins would be seconded to work at the DRPS for a period of two years, as Dean of the Police Education and Innovation Centre. The Agreement provided that Ms. MacDonald-Jenkins’ assignment to the DRPS was temporary, and that she would remain at all times an employee of the College. The term of the Agreement was subsequently extended for an additional year.The Durham Regional Police Association and the Durham Regional Police Senior Officers’ Association (the “Associations”) brought a joint application before the Commission seeking a determination, under section 116(1) of the Police Services Act (the “Act”) that Ms. MacDonald-Jenkins was a member of the DRPS and, if so, whether she was a “senior officer” for the purposes of the Act.

  Johnstone & Cowling LLP, acting for the DRPS and its Chief, Mike Ewles, successfully argued that Ms. MacDonald-Jenkins was not an employee of the DRPS. The Commission agreed with the DRPS, ruling that Ms. MacDonald-Jenkins remained an employee of the College during her secondment. The Commission was persuaded by the clear terms of the Agreement, under which Ms. MacDonald-Jenkins remained an employee of the College at all times during her secondment, and was not an employee of the DRPS. Nothing that had taken place during the secondment had displaced the terms of the Agreement.

  Read full decision.

• August 18th, 2014:  Johnstone & Cowling LLP Successful At the Court of Appeal for Ontario – Lawyers from Johnstone & Cowling LLP successfully appealed an order of the Divisional Court, which quashed a decision made by the Police Governing Authority of the Anishinabek Police Service (the “Service”). The decision made by the Police Governing Authority related to the implementation of discipline against a First Nations Constable employed by the Service. The employment relationship of the First Nations Constable was governed by a collective agreement between the Public Service Alliance of Canada and the Service (the “Collective Agreement”).
  On behalf of the Service, Johnstone & Cowling LLP argued that the Divisional Court lacked jurisdiction to review the decision of the Police Governing Authority because the matter arose expressly or inferentially from the Collective Agreement. The Court of Appeal accepted this argument and found that the review of decisions related to the implementation of discipline falls under the exclusive jurisdiction of grievance arbitrators appointed pursuant to the Collective Agreement.
  This decision significantly clarifies the disciplinary regime applicable to First Nations Constables. First Nations Constables whose employment relationships are governed by collective agreements must challenge employer decisions relating to the implementation of discipline before a grievance arbitrator, rather than in Applications for Judicial Review before the Divisional Court.

Categorised in: Uncategorized

This post was written by geekpower