OCPC Penalty Decision The OCPC has finally released its penalty Decision in the matter of mayor Daryl Bennett. The OCPC has ordered the removal of Mayor Daryl Bennett from the Police Services Board, even though he is presently not a Member of that Board. The penalty imposed by the OCPC is similar of that made in the case of Greg Oliver, a Member of the Stirling-Rawdon Police Services Board. That specific Oliver Decision has been appealed to the Divisional Court and it is anticipated that the Appeal will be undertaken and heard in the Fall 2015. Mayor Bennett will monitor that particular case. However, in order to preserve his legal rights, he will initiate an Appeal to Divisional Court and reassess matters once the Divisional Court Judgment pertaining to the Oliver case, specifically in reference to Charter issues is released. At present, Mayor Bennett believes that the OCPC Decision should be the subject of judicial scrutiny. As a consequence, the present filing of an Appeal to Divisional Court will preserve his rights to have a judicial review undertaken of the OCPC ruling and imposition of penalty. The grounds for Appeal will be extensive, but will include some of the following: 1, The OCPC did not appropriately consider some crucial evidence and the Decision is patently unreasonable For example, in relation to Allegation #1 dealing with the forwarding of a confidential complaint that he received by Mr. Whetung (by email), it is noted that the OCPC Decision did not even consider the evidence tendered that the original communication from Mr. Whetung was sent to both Mayor Bennett and Mr. Goyette. Furthermore, the Whetung email communication was not noted as confidential and no content of the communication suggested that it was being forwarded on a confidential basis. In addition, the OCPC ruling determines that the Whetung email should have been viewed and classified as a "personnel complaint’. The evidence was overwhelming that none of the subject parties, including the Police Services Board itself, viewed the subject communication to constitute a "personnel complaint”. Pursuant to the Police Services Act, the Board would have been under an obligation to submit such a matter to the Independent Police Review Director within three days of its receipt. The Board did not proceed in that manner. Accordingly, the OCPC Decision in this regard will be challenged. 2. ‘The OCPC did not follow due process A bad process can produce a bad result. It will be contended that this is the circumstance. The OCPC excluded certain key evidence, and yet allowed further allegations to be made even during the conduct of the Hearing itself. In reference to Allegation #1, as an example, the said OCPC Decision referenced the Whetung complaint as a "personnel complaint”. The foregoing was not noted in the Notice of Hearing, nor the Outline of Allegations. The Mayor contended that he had followed the Complaints Policy of the Board. None of the parties to the proceedings addressed Human Resources Policies, nor was there any evidence tendered as it would relate to the processing or handling of personnel complaints. Accordingly, the failure to follow due process gives rise to various jurisdictional errors.3. Errors in Law It will be contended that the OCPC has made various errors in law. For example, the OCPC Decision misstates the position advanced by Mayor Bennett as it would relate to the application of the Charter of Rights and Freedoms. The OCPC Decision suggested that Mayor Bennett advanced the position that the Municipal Act “trumped the Police Services Act. This is not the case, The position advanced by Mayor Bennett was that the Charter of Rights and Freedoms constitutes the supreme law, and in essence "trumps" both the Police Services Act and the Municipal Act. The foregoing emphasizes the need to recognize freedom of expression and freedom of association in reference to the Mayor performing an important role as a liaison with the Municipal Council. It will be contended that the OCPC has not appropriately applied the provisions of the Police Services Act in reference to defining and characterizing the role of the Municipal Council and Mayor. The Act recognizes that there are political dimensions to civilian oversight of police services. The OCPC Decision expressed a portrait of civilian oversight that will be the subject of judicial review. The OCPC Decision represents an attempt to censure Mayor Bennett. Whether this represents a proper censorship pursuant to Charter rights will also be the subject of judicial review. Mayor Bennett will not be silenced. The case has cast light on aspects of Police Services Board governance. It has also cast light on the OCPC and its role. Furthermore, it has cast new light and attention to proper civilian oversight of Police Services. All of those matters are worthy of public engagement and full and open public debate. ‘Submitted by: Richard Taylor, Solicitor for Mayor Daryl Bennett