DOUBLE JEOPARDY: Can there be exceptions?

 

Many people sue the police for wrongdoings but this case I am going to tell you about is an unusual case that I am sure you will find interesting.

 

Wayne Penner was attending his wife’s trial in a St. Catharines, Ontario court room where his wife was facing a trial over a minor offence. Penner subsequently got into a squabble with the police and they arrested him. He resisted and he later claimed that the police assaulted him while arresting him. I don’t know why they arrested him but in any case, he filed a complaint under the Police Services Act. This meant that the police force would conduct a hearing to determine as to whether or not there was merit in his complaint. The police tribunal determined that there was no merit in his complaint and dismissed his complaint as being unfounded.

 

That decision was reversed on appeal by the Ontario Civilian Commission on Police Services on the basis that the arrest was unlawful. If the arrest was unlawful then so was the assault. On further appeal, the Ontario Divisional Court concluded that the officers had legal authority to make the arrest and restored the hearing officer’s decision.

 

Penner then issued a claim against the officers and the chief of police.in the Superior Court in St. Catharines. The police appealed to the Ontario Court of Appeal and asked that the claim not be heard in that court on the bases of issuer estoppel. What that means is that once a matter is finally dealt with in a court, it can’t be brought back for another trial or hearing. In the US, it would be referred to as double jeopardy.

 

The matter ended up in the Supreme Court of Canada. Three of the justices (judges) in that court ruled that the doctrine of issue estoppel seeks to protect the finality of litigation by precluding the re-litigation of issues that have been conclusively determined in a prior proceeding since the finality of litigation is a fundamental principle assuring the fairness and efficacy of the justice system in Canada. The doctrine of issue estoppel seeks to protect the reasonable expectation of litigants that they can rely on the outcome of a decision made by an authoritative adjudicator, regardless of whether that decision was made in the context of a court or an administrative proceeding. In applying issue estoppel in the context of administrative adjudicative bodies, differences in the process or procedures used by the administrative tribunal, including procedures that do not mirror traditional court procedures, should not be used as an excuse to override the principle of finality. The purposes and procedures may vary, but the principle of finality should be maintained.

         

The majority of the court however ruled that in the circumstances of this case, it was unfair to Penner [for the police] to apply issue estoppel (double jeopardy) to bar his civil action on the basis of the hearing officer’s decision. The Court of Appeal erred in its analysis of the significant differences between the purpose and scope of the two proceedings, and failed to consider the reasonable expectations of the parties about the impact of the proceedings on their broader legal rights. While finality is important both to the parties and to the judicial system, unfairness in applying issue estoppel may nonetheless arise. Even where the prior proceedings were conducted fairly, it may be unfair to use the results of that process to preclude the subsequent claim, for example, where there is a significant difference between the purposes, processes or stakes involved in the two proceedings.

 

The majority of the Supreme Court went on to say;

 

“In this case, the disciplinary hearing was itself fair and Penner participated in a meaningful way, however, the Court of Appeal failed to fully analyze the fairness of using the results of that process to preclude Penner’s civil action. Nothing in the legislative text gives rise to an expectation that the disciplinary hearing would be conclusive of Penner’s legal rights in his civil action [because] the standards of proof required, and the purposes of the two proceedings, are significantly different and, unlike a civil action, the disciplinary process provides no remedy or costs for the complainant.”

 

Surely you remember the Simpson case. He was acquitted of murdering his wife and her boyfriend but the parents of the boyfriend sued Simpson for millions of dollars and won their case against him.

 

In a criminal court or a police hearing, the accused is given the benefit of the doubt whereas in a civil case, he can be found liable for damages based on a preponderance of evidence. What that means is that for an aggrieved party to win a case as the plaintiff (the person who is suing), the standard of proof in civil cases is that the evidence of the plaintiff submitted in court must be of a greater weight or more convincing that the evidence of the defendant which is offered in opposition to that of the plaintiff. In the Simpson case, there was a preponderance of evidence in favour of the plaintiffs. 

 

Penner could have participated more fully by hiring counsel; however that would also have meant that the officers would effectively have been forced to face two prosecutors rather than one. This would enhance neither the efficacy nor the fairness to the officers in a disciplinary hearing and potential complainants may not come forward with public complaints in order to avoid prejudicing their civil actions.

 

You may recall that I wrote recently in one of my articles in my blog (March 8, 2013) that when a certain police inspector was charged with sexually harassing a woman in his division who was of a lessor rank, he was questioned in the police hearing by the prosecutor and not the woman’s lawyer. This doesn’t however mean that the woman’s lawyer couldn’t rightfully have spoken t0 the prosecutor prior to the hearing or even between breaks in the hearing.

 

The majority of the Supreme Court also said that these are important considerations and the Court of Appeal did not take them into account in assessing the weight of other factors, such as Penner’s status as a party and the procedural protections afforded by the administrative process. Further, the application of issue estoppel had the effect of using the decision of the Chief of Police’s designate to exonerate the Chief in the civil claim and is therefore a serious affront to basic principles of fairness.

 

The application of double jeopardy that would prevent an aggrieved party from suing a police officer, who has been acquitted of any wrongdoing in a police hearing, would bring about an injustice or unfairness that would be adverse to the public’s interest in promoting police accountability. The courts, as guardians of the Constitution and of individual rights and freedoms, must oversee the exercise of police powers since the importance of this judicial oversight requires that double jeopardy does not apply to a disciplinary hearing decision. 

 

Now whether or not the police officer who is found not guilty in a police hearing can be then proceeded against in a criminal court is a bird of a different colour. I don’t believe that he could be then subjected to a criminal trial because he would be subjected to two proceedings that would have dealt with the same form of procedure, to wit; giving the police officer the benefit of the doubt. That really would be double jeopardy. In the police inspector’s case, the victim said that she wanted the matter to be heard in the police hearing rather than in a public criminal trial. Obviously she made that request so that her being a victim wouldn’t be so public like it would at a public criminal trial.

 

The decision of the Supreme Court in Canada would also apply to any tribunal case in Canada. If you are a victim of police brutality, you get to make the choice if you want the matter heard in a criminal court. But you have to let the police know of your intentions. In Canada, any citizen can go to a justice of the peace and lay the charge. The prosecutor will then contact the police to see if there is merit in the complaint. If there is, then the case goes before a judge in a criminal court. If the officer is acquitted, in all likelihood, the matter will end there unless the police force believes that in some manner or other, he did something that was contrary to the Police Act.

 

If the judge rules that the officer did assault the victim and he sentences him to even a day in jail or gives him a conditional sentence (home incarceration) even for one day , he will have a police hearing and he could be terminated. 

 

Didn’t I tell you this would be an interesting case?  Hey you in the back row. WAKE UP!