ONTARIO PROVINCIAL POLICE DISCIPLINE HEARING IN THE MATTER OF ONTARIO REGULATION 268/10

MADE UNDER THE POLICE SERVICES ACT, RSO 1990, AND AMENDMENTS THERETO;

AND IN THE MATTER OF THE ONTARIO PROVINCIAL POLICE

AND

SERGEANT DAN MULLIGAN, #6340

CHARGES: BREACH OF CONFIDENCE AND DISCREDITABLE CONDUCT

______

DECISION WITH REASONS ______

Before: Superintendent Robin D. McElary-Downer Ontario Provincial Police

Appearances:

Presenting Counsel: Ms. Claudia Brabazon Legal Services Branch, MCSCS and MAG

Defence Counsel: Mr. James Girvin Ontario Provincial Police Association

Hearing Date: October 3, 2016, and November 8, 2016 This decision is parsed into the following parts: PART I: OVERVIEW; PART II: EVIDENCE, SUBMISSIONS, ANALYSIS/FINDINGS, and PART III: DECISION.

PART I: OVERVIEW

Allegation of Misconduct Sergeant Dan MULLIGAN (Sgt. MULLIGAN), #6340, a member of the Ontario Provincial Police (OPP), stands charged with two counts of misconduct, breach of confidence and discreditable conduct, contrary to sections 2(1)(e)(iii) and 2(1)(a)(xi) respectively, of the Code of Conduct contained in the Schedule to Ontario Regulation 268/10, as amended. The edited allegations as particularized in the Notice of Hearing (NoH) state:

Breach of Confidence • On or about May 3, 2015, while off-duty, he authored and sent a letter to the editor of the Sudbury Star regarding the relocation of the OPP helicopter from Sudbury to Orillia. • He was not authorized to speak to the media on behalf of the OPP regarding the decision to relocate the helicopter. • Quotes from his letter were published in the North Bay Nugget on May 4, 2015. • His letter was published by the Sudbury Star, in its entirety, in the opinion section on May 7, 2015.

Discreditable conduct • On or about May 3, 2015, while off-duty, he authored and sent a letter to the editor of the Sudbury Star regarding the relocation of the OPP helicopter from Sudbury to Orillia. • He was not authorized to speak to the media on behalf of the OPP regarding the decision to relocate the helicopter. • In that letter, he openly criticized the decision and rationale of the OPP in relocating the helicopter and stated that lives would be lost as a result of the relocation. • The letter was signed “Dan Mulligan Sergeant, Aviation Services-Helicopter Unit OPP General Headquarters Orillia”. • Quotes from his letter were published in the North Bay Nugget on May 4, 2015. • His letter was published by the Sudbury Star, in its entirety, in the opinion section on May 7, 2015. • The Commissioner of the OPP sent a rebuttal to his letter (published on May 4, 2015), which was published in the North Bay Nugget on May 5, 2015. He knew or reasonably ought to have known his actions would bring discredit upon the reputation of the OPP.

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Background On May 3, 2015, while off-duty, Sgt. MULLIGAN authored and sent a letter to the Sudbury Star’s editor in relation to the relocation of the OPP helicopter from Sudbury to Orillia. Openly critical of the relocation, he signed his letter “Dan Mulligan Sergeant, Aviation Services-Helicopter Unit OPP General Headquarters Orillia”. The letter was posted in its entirety in the Sudbury Star and quoted in the North Bay Nugget. The Commissioner sent a rebuttal letter to the editor shortly thereafter.

Sgt. MULLIGAN’s conduct led him to being charged.

Motions This matter was the subject of two pre-hearing motions raised by defence. On both, Sgt. MULLIGAN testified. Counsels agreed his testimony could be used to supplement his testimony heard during the hearing proper. A third motion was raised by defence counsel on the first day of the hearing, which caused the tribunal to pause and reconvene in November. A written decision in regard to this last motion, as with the first two, is under separate cover.

Plea On October 3, 2016, Sgt. MULLIGAN, represented by Mr. Girvin, pleaded not guilty to both counts. Ms. Brabazon represented the OPP. The hearing commenced on the same day, and continued on November 8.

Decision For reasons set out in Part II, I find Sgt. MULLIGAN guilty of both counts of misconduct.

PART II: EVIDENCE, SUBMISSIONS, ANALYSIS/FINDINGS

Issue Central to this matter is the whistle blower defence: Was Sgt. MULLIGAN justified in communicating with the media in regard to the relocation of the OPP helicopter, or by doing so, did he breach his duty of loyalty to the OPP and requirements as a police officer in a manner that such a defence cannot stand?

Before determining this, the tribunal must ascertain whether Sgt. MULLIGAN’s alleged conduct, namely breach of confidence and discreditable conduct, gives rise to misconduct. If it does not, the whistle blower defence becomes moot. The first issue that must be tackled therefore is this:

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1. Did Sgt. MULLIGAN’s conduct give rise to misconduct, namely breach of confidence and discreditable conduct?

In relation to this issue, the onus rests on the presenting counsel to prove that the allegations in the NoH reached a standard of clear and convincing evidence. I will review the charges in the same order they appeared on the NoH.

a) Breach of confidence

Evidence • Complaint Intake form1 • Sudbury Star – Opinion letters, May 7, 20152

The Complaint Intake form was introduced through witness, Sgt. Coulter, the investigator of the internal complaint. It indicates the Superintendent of the Field Support Bureau (FSB) initiated a complaint on May 5, 2015, in which he alleged Sgt. MULLIGAN’s letter to the North Bay Nugget brought discredit upon the OPP’s reputation.

Also introduced through Sgt. Coulter was a copy of the letter Sgt. MULLIGAN wrote to the editor of the Sudbury Star. In the letter, he identified himself as a police officer by name and rank and attached to the OPP Aviation Services Section – Helicopter Unit.

Sgt. Coulter testified his investigation determined Sgt. MULLIGAN actually wrote to the Sudbury Star, and the letter was posted in its entirety in the paper. Quotes from the letter were subsequently posted in the North Bay Nugget. Sgt. MULLIGAN readily admitted he wrote the letter when he was interviewed by the investigator.

Sgt. Coulter advised his investigation failed to uncover any evidence Sgt. MULLIGAN showed to another person, not being a member of the police service, a record of the OPP.

Sgt. MULLIGAN testified and readily admitted he wrote the letter to the Sudbury Star and confirmed his words were accurately reflected in the noted papers.

Submissions Mr. Girvin submitted that based on the tribunal’s interpretation of the breach of

1 Exhibit 28: Complaint Intake form 2 Exhibit 25: Sudbury Star – Opinion letters, May 7, 20152

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confidence charge, the misconduct has been proven; but Sgt. MULLIGAN presents a defence as outlined in the case law. If the defence is accepted and applied to both charges, it would defeat the misconduct. If the defence is not accepted, it is conceded the charge has been proven.

Ms. Brabazon submitted that the allegation the officer communicated to media was absolutely borne out by his own evidence.

Analysis and findings

The connection between the evidence and allegation of breach of confidence is strong and to this end, I find the charge has been proven for the following reasons.

The Complaint Intake form supports the allegation Sgt. MULLIGAN did not have authorization to speak to media on behalf of the OPP. Sgt. MULLIGAN readily admitted he wrote the letter to a media outlet, in this case the Sudbury Star, and quotes from that letter were reprinted in another paper. Mr. Girvin conceded the charge was proven based on the tribunal’s interpretation from the most recent motion in regard to the defect in the NoH.

I viewed a copy of Sgt. MULLIGAN’s letter, which appeared under the header, OPINION LETTER Sudbury letter: Moving helicopter a mistake. Sgt. MULLIGAN’s identifiers were at the end of the letter. In the letter, he openly criticized the OPP’s decision to relocate the Sudbury helicopter to Orillia.

In totality, the evidence is clear and convincing; the charge of breach of confidence is proven; he communicated with media on a matter in relation to the OPP without authorization.

b) Discreditable conduct

Evidence • Complaint Intake form3 • Sudbury Star – Opinion letters, May 7, 20154 • OPP Vision, Mission, Values and Promise5

In his evidence-in-chief, Sgt. MULLIGAN advised his choice of words in his letter to the

3 Exhibit 28: Complaint Intake form 4 Exhibit 25: Sudbury Star – Opinion letters, May 7, 20154 5 Exhibit 26: OPP Vision, Mission, Values and Promise MULLIGAN 2545015-0081 5 | Page

media bluntly identified the risks involved; and, financially the decision was a loser. He said it was possibly not necessary to use the language he chose. He acknowledged some readers would have thought he had no respect for the OPP’s decision making, while others would think possibly the relocation was not to the benefit of northern Ontarians. He said that possibly he could have tempered his wording better, but he is no writer, just a dumb Irish helicopter pilot (sic).

Sgt. MULLIGAN advised his intent in writing the letter was not to bring discredit upon the reputation of the OPP, but rather to kick some politicos (sic) into gear and make an attempt to reverse the decision and get the helicopter back into the north as soon as possible.

Submissions Mr. Girvin submitted there is an additional consideration on this charge; the aspect of the disrepute on the OPP. While disrepute does not need to be proven and the test is an objective one, the important component to remember is it is not from the perspective of the OPP, but rather the perspective of a member of the public who is reasonably informed about all the facts and circumstances.

Mr. Girvin submitted the language used in the letter was not raised or referenced in any manner in the particulars of the NoH, therefore it cannot be relied on as a basis to make a finding of guilty. Nothing is present in the particulars to suggest the language was incendiary or implied disrespect toward the OPP. The prosecutor should not be entitled to benefit from an expansion of particulars. For the tribunal to do so otherwise would mean it should have been contained in the particulars.

Mr. Girvin believed the issue of disrepute is rebutted by the public interest; the concern about public and officer safety.

On the other side, Ms. Brabazon turned the tribunal’s attention to the particulars of the charge which stated Sgt. MULLIGAN openly criticized and said lives would be lost, and he ought to have known his actions would bring discredit to the OPP. Ms. Brabazon submitted that the case law says the prosecution need not absolutely and minutely particularize every aspect of the allegations. As stated by the tribunal earlier, the prosecution need only provide such notice to make the officer reasonably understand the nature of the allegations and the case to be met. Ms. Brabazon stated it is open to the tribunal to consider the content and tone of Sgt. MULLIGAN’s criticisms because the NoH alleged he openly criticized the OPP’s decision and rationale.

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Further, Ms. Brabazon reminded the tribunal she had told the officer that language like “amounts to a classic shell game at best and a very negligent crapshoot with the northern lives, the losses of which are inevitable/irrefutable at worst” is language which is incendiary and alarmist. Ultimately when she challenged the officer in regard to whether lives had been lost as a result of the relocation, he said no, but added it was inevitable. She submitted this was a speculative risk.

Analysis and findings

For the following reasons, I find the evidence is clear and convincing to support the charge of discreditable conduct:

Similar to the charge of breach of confidence, this charge again particularized Sgt. MULLIGAN was not authorized to speak to the media on behalf of the OPP. The uncontested Complaint Intake form lends proof to this particular.

Next, the letter he authored to the Sudbury Star contained language which in no uncertain terms criticized the OPP’s decision to relocate the helicopter. In Sgt. MULLIGAN’s own words, he ‘bluntly’ identified the risks. I turn to a number of excerpts in his letter, which in my view point to such crassness:

For our organization to suggest that financial efficiencies to the tune of a quarter million dollars annually can be achieved by relocating the latest, $6.5-million provincial resource -- a procurement successfully achieved in 2011 by former Sudbury MPP Rick Bartolucci during times of fiscal restraint -- amounts to a classic shell game at best and a very negligent crapshoot with Northern lives (the losses of which are inevitable/irrefutable) at worst. …

As a former Sudbury boy with family remaining in the North, I couldn’t possibly express in publishable words how strongly I object to such an ill-conceived relocation of such an important aircraft. …

When -- not if -- one Alzheimer’s-riddled grandparent, one loved one goes missing, the OPP has both a moral and legal obligation to continue to provide what has logistically proven to be the best professional search and rescue response possible to our northern families. (Emphasis added)

I find Sgt. MULLIGAN’s choice of language tersely accused the OPP of gambling with the lives of those who live in the north. He portrayed the organization as a heartless police service who only cares about finances. While Sgt. MULLIGAN may have not

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intended to bring discredit to the OPP, he did when he so harshly criticized its decision. His reference to his ethnicity and level of intelligence was in my view a halfhearted attempt to downplay his derisive language and it left me unpersuaded. To the contrary, I found Sgt. MULLIGAN more than capable of presenting his views in a respectful and professional manner as seen while he testified.

I disagree with Mr. Girvin this tribunal cannot take into consideration the tone or language of Sgt. MULLIGAN’s letter. The wording of his discreditable conduct charge includes words to the effect, ‘he knew or reasonably ought to have known his actions would bring discredit upon the OPP’s reputation’. In my view, this encompasses the tone and language he used when he wrote his letter.

As a police officer, Sgt. MULLIGAN is held to a high degree of professionalism. Such expectation is outlined in the OPP’s Professionalism policy6. His letter fell far below this expectation, and without doubt served to undermine the public’s confidence in the OPP.

Sgt. MULLIGAN ended the letter identifying himself by name, rank and unit. I find the purpose of identifying oneself in this capacity is to add credibility and legitimacy to one’s comments and for no other reason. By virtue of his attachment to the Aviation Services, and by extension, his participation in search and rescue incidents, he needed to exude restraint and professionalism. The alarmist nature of his letter did everything but this.

As a senior officer, Sgt. MULLIGAN would know the weight the public places on police officers’ opinions when discussing matters of public safety and protection. His disclaimer that his letter was his personal opinion and not designed to be representative of his employer was inconsequential because he had already made the link between himself and the OPP.

For these reasons, I find Sgt. MULLIGAN’s conduct – his letter – gives rise to discreditable conduct.

2. Was Sgt. MULLIGAN justified in communicating with the media in regard to the relocation of the OPP helicopter because in his view it was based on the principles of responsible communication on a matter of public interest? Or by doing so, did he breach his duty of loyalty to the OPP and requirements as a police officer in a manner that such a defence cannot stand?

6 Exhibit 26: OPP Vision, Mission, Values and Promise MULLIGAN 2545015-0081 8 | Page

Authorities • Haydon v Canada (Treasury Board,) (FC), [2005] 1 FCR 5117 • Haydon v Canada (Treasury Board), (FC), [2005] 1 FCR 11468 • Stenhouse v Canada (Attorney General), [2004] 4 FCR 437, 2004 FC 3759 • Walker and Board of Commissioners of Police (City of Belleville), OPC, March 15, 199010 • Bratzer v Victoria Police Department, [2016] BCHRTD, No. 5011 • Assn. of Management, Administrative and Professional Crown Employees of Ontario v Ontario (Ministry of Health and Long-Term Care) (Globerman Grievance), [2006] OGSBA No. 15612 • Fraser v Canada (Public Service Staff Relations Board), [1985] 2 SCR 45513 • Read v Canada (Attorney General), [2006] FCJ No. 125714 • Chopra v Canada (Attorney General), [2014] FCJ No. 33315

Evidence • North Bay Nugget, May 5, 2015, (the Commissioner’s response)16 • Email to the Minister17

Sgt. MULLIGAN testified his letter to the Sudbury Star was written out of a genuine concern for the OPP’s capability to respond to missing persons. Outside of this, he said his workplace had been going downhill since October 2011, as far as his immediate supervisor was concerned. Examples of this included:

• He and his colleague pulled a man from the water who had been clinging to his overturned boat for approximately 25 minutes. His colleague told him they needed to go to the hospital so Sgt. MULLIGAN landed the helicopter in the intersection near the hospital. His supervisor accused him of being a cowboy and from that point on their communication ceased.

7 Exhibit 37 A: Haydon v Canada (Treasury Board,) (FC), [2005] 1 FCR 511 8 Exhibit 37 B: Haydon v Canada (Treasury Board), (FC), [2005] 1 FCR 1146 9 Exhibit 37 C: Stenhouse v Canada (Attorney General), [2004] 4 FCR 437, 2004 FC 375 10 Exhibit 37 C: Walker and Board of Commissioners of Police (City of Belleville), OPC, March 15, 1990 11 Exhibit 37 D: Bratzer v Victoria Police Department, [2016] BCHRTD, No. 50 12 Exhibit 37 E: Assn. of Management, Administrative and Professional Crown Employees of Ontario v Ontario (Ministry of Health and Long-Term Care) (Globerman Grievance), [2006] OGSBA No. 156 13 Exhibit 38 A: Fraser v Canada (Public Service Staff Relations Board), [1985] 2 SCR 455 14 Exhibit 38 B: Read v Canada (Attorney General), [2006] FCJ No. 1257 15 Exhibit 38 C: Chopra v Canada (Attorney General), [2014] FCJ No. 333 16 Exhibit 29: North Bay Nugget, May 5, 2015, (the Commissioner’s response) 17 Exhibit 35: Email to the Minister

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• On March 9, 2012, 26 fishermen were left adrift in Kempenfelt Bay. Sgt. MULLIGAN happened to be local that day because his earlier trip to Sudbury had been thwarted by inclement weather. A total of 18 people were rescued from the ice with the helicopter and it made international news. His supervisor, who was vacationing at the time, sent an email to all and said, “We will not sacrifice safety for front page news”.

• The former FSB’s Superintendent, who was aware issues existed between the supervisor and pilots, informed the pilots he had apprised his replacement of the issues. He instructed them to put their concerns on paper. Four months later, Sgt. MULLIGAN tendered a formal complaint against his supervisor. He felt obligated to do so as the most senior pilot.

• One issue raised in the complaint was in relation to a 13 year old suffering from autism who reportedly wandered away. The on-duty pilot was reluctant to respond because the search would likely cause him to “bust his duty day”. He explained ‘busting a duty day’ occurred when pilots exceeded Transport Canada’s regulatory 14 hour duty day. The pilot feared there would be repercussions from their supervisor, an individual who had a negative effect on all the pilots’ decision-making.

• Sgt. MULLIGAN believed his supervisor was too quick to file negative 233-10s on members.

• On June 21, 2012, in his absence, the supervisor debriefed the Unit’s pilots in regard to the Kempenfelt Bay rescue, where the 18 fishermen were rescued. He informed them that the Deputy Commissioner had decreed that effective immediately they could no longer conduct water or ice rescues. The supervisor said words to the effect, “they were to throw out whatever life saving devices on board then circle high overhead and watch the people die”. Sgt. MULLIGAN ultimately blamed his supervisor for the decision to no longer conduct such rescues.

• As a result of Sgt. MULLIGAN’s formal complaint on September 26, 2012, the Deputy Commissioner ordered a workplace review. The review’s recommendations were never addressed to Sgt. MULLIGAN’s satisfaction. He believed there were two recommendations to have his supervisor removed, but it never happened.

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• In July 2013, Sgt. MULLIGAN complained directly to the Commissioner. Five hours later he was transferred out of the unit. The day before, Sgt. MULLIGAN had refused to answer his supervisor when he was challenged for wearing his green flight suit instead of the blue one. The pilots believed their supervisor took exception to them simply because he disliked them and as a result had convinced the Bureau Commander that the pilots should only wear the blue suits. On that particular day, Sgt. MULLIGAN had worn his green suit for relief from the humid conditions.

• On September 14, 2014, 14 months after he had been transferred out, Sgt. MULLIGAN was returned to flight duty. Ground rules between he and his supervisor were established in regard to communication. For the next year, things digressed with no communication between him and his supervisor.

• In January 2015, Sgt. MULLIGAN sought assistance from his Deputy Commissioner because he believed the workplace remained problematic and dangerous. The workplace continued to be poisoned and Sgt. MULLIGAN was suffering under the command of his supervisor. When the Deputy did not respond, Sgt. MULLIGAN reached out to the Commissioner via email. At that point, the decision to relocate the helicopter had already been made, but the pilots were not privy to it and the helicopter had not yet been relocated. The Acting President of the OPP Association informed Sgt. MULLIGAN the Commissioner was not willing to meet with him, but encouraged him to follow the chain of command. Sgt. MULLIGAN knew that was not an option given the history.

In relation to the anticipated 254 million cost savings with the relocation, Sgt. MULLIGAN advised there had been 303 flights north since the helicopter’s relocation between May 1, 2015, and November 3, 2016; representing 250 individual incidents in the north. This translated to a total of 650 hours of flight time between Orillia and Sudbury. In total, $975,000 of the tax payer’s dollars has been expended when equated to a direct operating cost of $1500 per hour flight time.

Sgt. MULLIGAN advised he could not sleep had he not spoken up to the media. They all recognized the numbers had been skewed by his supervisor in the presentation to the Commissioner to relocate the helicopter. The statistics provided were patently false and this was recognized by the Sudbury based pilot when he read the Commissioner’s rebuttal.

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Sgt. MULLIGAN advised when there is a missing person in the bush, the OPP dedicates anywhere from five to 25 officers to the search. Depending on the area of search, the topographical and meteorological conditions can be quite challenging and dangerous. For public safety and officer safety, Sgt. MULLIGAN felt an obligation to speak to the problems, which were undoubtedly about to occur given the repositioning of the helicopter. It was a dangerous decision and put lives at risk. Based on his 15 years of experience with much time dedicated to flying in the north, coupled with the other pilots, there had been a lot of great work done in saving lives. He felt he needed to speak up as the senior pilot and say the decision was unquestionably a mistake.

In April 2016, Sgt. MULLIGAN advised that Commissioner Hawkes essentially admitted he acted on bad information. Money has since been found by the government for a third helicopter to be positioned in the north. Effective November 1, 2016, the OPP entered into a six month contract with the Ministry of Natural Resources in Thunder Bay to test a particular aircraft. The pilots have been assured that once the test is complete a new helicopter will be purchased.

Sgt. MULLIGAN testified that after he wrote the letter to the editor, he sent an email to the Minister. He felt obligated to take the issue further and inform the Minister about the individual who was responsible for selling the proposal of the helicopter’s relocation. The email was sent on May 1, 2015. On November 3, 2015, the Minister responded. No one in the OPP indicated that his contact with the Minister was inappropriate.

Sgt. MULLIGAN advised his first consideration for writing his letter was public and officer safety. He knows what the officers are faced with and what they will be faced with due to the aging demographics in Ontario and those inflicted with dementia. Searches involving such individuals are time critical because they often leave their homes dressed inadequately.

There was no question in his mind the service the OPP provided to the north between 1990 and 2015 involved the need to have a helicopter north of Georgian Bay. The positioning in Sudbury proved to be very successful. To have both helicopters in Orillia and unable to fly north for much of the winter due to weather, is a risk to public safety, as well to the officers.

In cross-examination, Sgt. MULLIGAN advised he was not satisfied with the way the OPP handled his complaint about his supervisor. The concerns he raised were never addressed by senior command. He raised the public safety issue in his original complaint about his supervisor when he informed the OPP of the lost autistic girl. He

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had no confidence the OPP would deal with the public safety issue since the issues he raised in the past had not been dealt with.

Sgt. MULLIGAN advised he swore an oath to protect the public and uphold the Constitution, although he appreciated it also limited his ability to go the media. He felt it was important to identify the significance of the relocation as soon as possible. To their credit, local Members of Provincial Parliament became engaged and as a result there is going to be growth in Aviation Services due to the political repercussions.

Sgt. MULLIGAN advised he essentially gave a heads up to the Deputy and Commissioner in January and February 2015 that he would be communicating with the media about his supervisor, who was a convicted cheat and liar. Despite this, they accepted the supervisor’s proposal for the relocation. It was his opinion that had he informed senior command he planned to go to the media about the helicopter, it would have been seen as a threat; an approach he would have never taken.

Sgt. MULLIGAN could guarantee lives would be lost as a result of the relocation, although so far there have been none.

Sgt. MULLIGAN advised that the former unit manager, retired Staff Sergeant Norm Kerr, who had served in the north between 1990 and 2001, had already scripted and published a letter to the Northern Life magazine. Sgt. MULLIGAN felt obligated to provide him with some support. He thought it was important to add his name and position to add creditability to his words. So his intent was to provide Norm Kerr, who had served so long and so well with the OPP, the support in getting the politicos (sic) moving. That was the sole intent behind the letter; it was not to make the OPP look bad.

In May 2015, Chief Superintendent Howe was Sgt. MULLIGAN’s Bureau Commander and he did not raise his concerns to her. He did not think it was beneficial to his cause and did not expect a positive response from her or his Superintendent. He had gone to the Deputy and Commissioner in the past, although not specifically on this issue. The pilots had not been consulted in the decision of the relocation; therefore he did not see the purpose of pursuing the issue with command staff. He was confident he knew the outcome had he done so.

In light of the ice rescue on Kempenfelt Bay, Sgt. MULLIGAN agreed the weather can cut both ways. However, when the majority of calls for service are in the northeast that is where the OPP should want to be positioned.

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Sgt. MULLIGAN advised the OPP has not yet determined where the new helicopter will be positioned when purchased, other than somewhere in the north. In Sgt. MULLIGAN’s opinion, had he not raised the issue in the media nothing would have changed.

Submissions Mr. Girvin submitted much of the evidence was background, but it provided important context under which Sgt. MULLIGAN felt it was necessary to send the letter to the newspaper. It included his prior letters which were sent to the media unchallenged by the OPP. There was former Commissioner Fantino, who expressly stated when an officer took up the badge, he did not give up the right to speak out on important issues. And there was Sgt. MULLIGAN’s experience of the breakdown in the chain of command, which left him no confidence his issues regarding the relocation of the helicopter would be addressed. The chain of command was misled by his supervisor who did not consult with any of the helicopter pilots about the merits of the relocation. Unrefuted was evidence of the historic weather patterns which prevented helicopters from flying to the north.

Mr. Girvin submitted the public knowing the full circumstances of the matter would be concerned in regard to the utility of the helicopter. The relocation would impact the people in the north due to the limitation of free access because of the weather patterns. The relocation would also put at risk the lives of the OPP officers. Sgt. MULLIGAN was effectively raising issues of public concern, public safety and officer safety.

Mr. Girvin tendered the authorities Fraser, Read and Chopra. He advised Fraser was analogous to this matter. There are occasions when public servants are permitted to speak out. Similar to paragraph 41, Sgt. MULLIGAN raised concerns related to his work and reported the removal of the helicopter would jeopardize lives in the north and officer safety. The issues raised by him did not impact his duties as an OPP officer, nor was there evidence others would be impacted.

Paragraph 43 of Fraser speaks to a chain of command. Sgt. MULLIGAN had no confidence his concerns would be addressed. Rather, the tribunal heard of retaliation against Sgt. MULLIGAN when he was removed from Aviation Services for a period of 14 months. If the public was aware of this, it would see the letter to the media as a reasonable response to a breakdown in command.

Mr. Girvin submitted Read is more closely connected to this scenario because it involved an RCMP officer who disclosed documents to the media. Ultimately the court found the officer had breached his duty of loyalty to his employer and was terminated. The officer’s whistle blower defence was not made out. In terms of legal analysis, the

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case referenced Fraser. Public servants must be loyal, but in some circumstances they can publicly express their concerns when it exposes an illegal act or jeopardizes the health and safety of others and does not undermine their ability to perform their duty. In this matter, there was no evidence Sgt. MULLIGAN undermined his ability to perform.

In regard to Chopra, Mr. Girvin submitted the doctor was found to have breached his duty of loyalty. He believed the law is applicable and binding in terms of an obligation for this tribunal to go through the analysis of the ‘Fraser exceptions’ noted in paragraph 179.

Mr. Girvin pointed to the OPP Professionalism policy. Subsumed in the heading of accountability and ethics is the courage to confront. Employees have an obligation to raise issues when in conflict of human rights. Sgt. MULLIGAN’s actions were entirely consistent with Fraser and consistent with OPP policy. He did not take his actions lightly – he took them seriously. The evidence was unchallenged – there was a dysfunctional chain of command. He took a reasonable and measured step to bring this issue forward. The circumstances are highly unique and come within the protections afforded in Fraser. A not guilty finding should be entered on both counts.

On the other side, Ms. Brabazon tendered the following authorities: Haydon18, Haydon19, Stenhouse20, Walker21, Bratzer22 and Globerman23.

She advised this was a challenging situation. The officer communicated with media and this was borne out by his own evidence. The question the tribunal needs to ask is whether there is a defence to the communication and can the whistle blower defence be advanced. Or, were Sgt. MULLIGAN’s duty of loyalty and his requirements as a police officer breached in such a manner that his defence cannot stand.

Ms. Brabazon took no issue with the evidence tendered surrounding Sgt. MULLIGAN’s work environment or his relationship with his supervisor and submitted it cut both ways. What would a reasonably informed member of the public, fully aware of all the circumstances conclude? He/she might conclude this was an unhappy employee who has been sanctioned and sent to Bracebridge, one who had a poor working relationship with his supervisor for three years. The officer learned of a policy decision which he put

18 Exhibit 37 A: Haydon v Canada (Treasury Board,) (FC), [2005] 1 FCR 511 19 Exhibit 37 B: Haydon v Canada (Treasury Board), (FC), [2005] 1 FCR 1146 20 Exhibit 37 C: Stenhouse v Canada (Attorney General), [2004] 4 FCR 437, 2004 FC 375 21 Exhibit 37 C: Walker and Board of Commissioners of Police (City of Belleville), OPC, March 15, 1990 22 Exhibit 37 D: Bratzer v Victoria Police Department, [2016] BCHRTD, No. 50 23 Exhibit 37 E: Assn. of Management, Administrative and Professional Crown Employees of Ontario v Ontario (Ministry of Health and Long-Term Care) (Globerman Grievance), [2006] OGSBA No. 156 MULLIGAN 2545015-0081 15 | Page

squarely on the shoulders of his supervisor and he took the axe he had to grind into a public forum.

Ms. Brabazon did not think that had entirely happened. She believed Sgt. MULLIGAN was frustrated with his direct report. Although in the context of raising issues about his supervisor, which he said he was prepared to use the chain of command, he decided when the helicopter decision was made he was fed up and decided to prioritize. He wanted to create public attention and bring the decision to the attention of the politicos (sic). That was the choice he made regardless of the Code of Conduct and his other obligations as a police officer.

Ms. Brabazon advised the duty of an officer is derived from his/her’s Oath of Office and common law. The cases provided give a good understanding of what the duty of loyalty encompasses. In the cases submitted, no court of law saw fit to place the public safety issue above the duty of loyalty. Fraser, Read, Haydon – they were guilty and dismissed. It is not a low standard.

Ms. Brabazon pointed to paragraph 34 of Read where Dickson C.J. spoke of an employee’s duty to be loyal to the government. He carved out a small number of exceptions to the overriding obligation of loyalty. On the breach of confidence charge, the tribunal must decide whether the OPP’s policy to relocate a helicopter from Sudbury to Orillia, which did not preclude it from flying north – jeopardized the life, health and safety of officers or public in general. While it was certainly Sgt. MULLIGAN’s opinion that lives were in jeopardy, it is a fact no lives have been lost.

She advised the tribunal must also be aware of the manner in which Sgt. MULLIGAN levelled his criticism against his employer. It cannot be said he was so inflamed by his distress that he used incendiary language, because when he wrote to the Minister, it was in a much more measured tone. Sgt. MULLIGAN chose the language he did when he wrote to the media, rather than to the Minister, because he wanted to get a rise out of the public. He wanted to alarm the public about the danger associated with the move. In so doing, it took his conduct outside the realm of simply raising a concern in the public.

Ms. Brabazon reviewed Hayden, Stenhouse, Walker and Bratzer. Several of the cases stated freedom of speech was not an absolute.

She closed by saying it was not just the criticism, but the tone of Sgt. MULLIGAN’s criticism which was disrespectful of the decision-making process. It was alarmist and suggested the OPP was not considering the impact on human lives. It was a tone

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which a reasonably informed member of the public would find undermined the effectiveness of the OPP and respect for the service.

In reply, Mr. Girvin submitted there is no direct evidence that the OPP helicopter pilots have succumbed to any great risk. However, anytime they fly there is a risk, in the same manner that every officer is at risk when they respond to an incident. There is no law that says the risk has to be demonstrated. He did not agree with Ms. Brabazon’s submission the risk is speculative. One such perfect example was demonstrated when Sgt. MULLIGAN described the incident which involved the autistic person. There is a reasonable increased risk with the relocation of the helicopter. Even on this point, it was not something which needed to be proven.

In regard to Sgt. MULLIGAN having an axe to grind, this was never put to him and nothing was submitted to suggest this was the case. Notwithstanding, Sgt. MULLIGAN’s response was measured and reasonable; he had tried to resolve issues in the prior three years. Sgt. MULLIGAN had sought opportunities to speak to command staff about the breakdown. Reasonably, one would think his supervisor, who was not a pilot, would have had a discussion with those pilots who knew best.

Analysis and findings

For the reasons which follow, I find Sgt. MULLIGAN was not justified in communicating with the media; therefore his whistle blower defence cannot stand.

Relationship in the workplace Significant evidence was heard from Sgt. MULLIGAN in regard to the conflict in his workplace and it helped lay the foundation in my mind for why he wrote the letter.

Sgt. MULLIGAN would like the tribunal to believe he had no alternative but to go to the media because he had no confidence his bureau command staff would listen to his concerns. In my view, the evidence indicated otherwise so I found this to be a self- serving notion. What I heard and saw pointed to a frustrated employee whose contempt for his supervisor was deep-rooted and substantial. Sgt. MULLIGAN’s evidence persuaded me the relocation of the OPP helicopter was, at least in part if not wholly, a convenient and timely opportunity for him to speak out against the OPP.

In relation to his lack of confidence his concerns would be heard, I note in September 2012, Sgt. MULLIGAN lodged a formal complaint against his supervisor. Contrary to his belief the OPP would not listen, it did in fact, and this was illustrated when it ordered an operational review. This resulted in a number of workplace improvement

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recommendations in April 2013. In July 2013, an allegation of criminal wrongdoing against his supervisor was brought to the attention of the Professional Standards Bureau by the aviation officers.24 To Sgt. MULLIGAN’s frustration, his supervisor was not removed.

Sgt. MULLIGAN’s dissatisfaction with the review appears to have transformed into his stated belief his command staff would not listen. Additionally, he misinterpreted the Commissioner and Deputy Commissioner’s refusal to meet with him privately as another example of no one prepared to listen to him.25 He was not being isolated – he was simply being directed to follow the chain of command. Most importantly, his concern in regard to the helicopter had never been raised before internally, unlike his complaints about his supervisor. In Haydon, Martineau J. quoted Madam Justice Tremblay-Lamer:

In my view, the Court [in Haydon, supra] stressed that internal mechanisms are to be used initially before a public servant should contemplate going public with criticism, of Government policy. In other words, the first avenue for a public servant to follow when raising a matter critical of Government policy is to raise it internally.26

Sgt. MULLIGAN had a duty to first bring his concerns to the OPP and he did not. The fact he reported in his email27 to the Minister that he had a lengthy and frank discussion with his Bureau Commander in October 2014, one which lasted one hour and 20 minutes, persuaded me the lines of communication were open; he just needed to follow the chain of command. Had he tried, he may have learned the rationale for the relocation was not just about financial benefits, but rather encompassed a number of considerations, as seen in the Commissioner’s rebuttal letter.28 He also may have been able to set the OPP straight on their flawed statistical data. Instead, in an alarming tone, he ran straight to the media to criticize the OPP’s decision. I recognize I am giving way to some speculation, but the fact remains Sgt. MULLIGAN never approached the OPP in the first instance with his concerns over the relocation. I find this was a fatal error on his part.

It was evident to me Sgt. MULLIGAN never moved past the 2012 operational review and he was left extremely dissatisfied his supervisor had not been removed. It seemed he reiterated at length many of the same complaints which had already been come

24 Exhibit 35: Email to the Minister 25 Exhibit 35: Email to the Minister 26 Exhibit 37 A: Haydon v Canada (Treasury Board,) (FC), [2005] 1 FCR 511, para 21 27 Exhibit 35: Email to the Minister 28 Exhibit 29: North Bay Nugget, May 5, 2015, (the Commissioner’s response) MULLIGAN 2545015-0081 18 | Page

under the scope of the review. I accept his relationship with his supervisor was extremely difficult, but it failed to convince me he had nowhere else to turn in FSB, such as the Bureau Commander, to raise his concern in relation to the relocation.

I found the email29 Sgt. MULLIGAN sent to the Minister on May 1, 2015, very telling, and points to an underlying motivation to go the media. The first paragraph set the tone for what was to follow:

Attached below is some rather detailed and valuable perspective with reference to the individual behind the decision to remove the OPP’s helicopter from it’s [sic] northern base at the Sudbury airport.

The remaining parts of the email, 10 pages in total, listed his complaints about his supervisor and the OPP’s failure to do anything about them. Half of his complaints, similar to his testimony, predated the operational review. Most telling in the email was the fact that only once did Sgt. MULLIGAN raise the public safety concern in regard to the relocation of the helicopter and this was done in the second paragraph. There he stated:

Removing this aircraft from Sudbury to Orillia will most definitely cost lives throughout the North!

This significant imbalance of information with respect to public safety versus his complaints about his supervisor points to a fed-up and frustrated employee whose distain for his supervisor had reached its limit. The relocation of the helicopter, which he squarely placed on his supervisor’s shoulders, a decision which had been made without his consultation, was the tipping point. Since Sgt. MULLIGAN had said he had put the Commissioner and Deputy on notice in early 2015 of his intention to go public, a period before he learned of the relocation of the helicopter, I find it was only a matter of time before he did so. The relocation of the helicopter served as the opportune time to go public.

This is not to say Sgt. MULLIGAN lacked a genuine concern in regard to the impact the relocation of the helicopter could have on public safety. To the contrary, I found he was very passionate about its utility and accessibility to the north during inclement weather. Notwithstanding, he failed to convince me his only option was to go the media, rather than report his concerns through the chain of command.

29 Exhibit 35: Email to the Minister MULLIGAN 2545015-0081 19 | Page

A public servant’s duty of loyalty to their employer For the reasons that follow, I find Sgt. MULLIGAN violated his duty of loyalty to the OPP when he wrote to the Sudbury Star.

Every police officer, including Sgt. MULLIGAN, has an expressed duty of loyalty to his/her police service, a duty which is codified in his/her Oath of Office found in section 2 of the Ontario regulation 268/10. There it states:

I solemnly swear (affirm) that I will be loyal to Her Majesty the Queen and to Canada, and that I will uphold the Constitution of Canada and that I will, to the best of my ability, preserve the peace, prevent offences and discharge my other duties as (insert name of office) faithfully, impartially and according to law.30

The evidence became clear to me Sgt. MULLIGAN’s duty of loyalty to the OPP was overshadowed by his desire to be loyal to a former colleague. Contrary to his belief, he was under absolutely no obligation to write a letter in support of retired Staff Sergeant Kerr who had previously written to Northern Life. Rather, he was under a ‘codified obligation’ to be loyal to his employer, the OPP, and not publically demean its decision, simply in support of a former employee.

Fraser explained why loyalty to an employer is necessary: A job in the public service has two dimensions, one relating to the employee’s tasks and performance and the other to the perception held by the public31. Putting the latter part into the context of policing, confidence in police is fragile at the best of times and the public requires constant reassurance there is order and professionalism within its service. The public must have trust its police service has their best interests at heart with respect to their protection and safety. Sgt. MULLIGAN’s accusation the OPP was recklessly gambling with the lives it served eroded this confidence; all because he wanted to kick some politicians into gear to have a decision reversed. His letter further gave way to the perception disrespect, which points to disorder, existed with the service, something he admittedly recognized during his cross-examination.

I find Sgt. MULLIGAN showed no restraint or loyalty to the OPP when he openly criticized it for its corporate decision. Baring the existence of the ‘Fraser exceptions’, and none have been substantiated so far in my analysis, Sgt. MULLIGAN’s conduct was unacceptable and inexcusable.

30 Ontario Regulation 268/10, section 2 31 Exhibit 38 A: Fraser v Canada (Public Service Staff Relations Board), [1985] 2 SCR 455, para 21 and 21 MULLIGAN 2545015-0081 20 | Page

The ‘Fraser exceptions’ – occasions when an employee can speak out There are some occasions where a public servant can speak out. In Fraser, the court said: As Mr. Fraser correctly points out, “freedom of speech” is a deep-rooted value in our democratic system of government. It is a principle of our common law constitution, inherited from the United Kingdom by virtue of the preamble to the [page 463] Constitution Act, 1867.

But it is not an absolute value. Probably no values are absolute. All important values must be qualified, and balanced against, other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of ‘freedom of speech’ as it is for other values.32

The court went on to establish three principles, which if existed, could advance the exception to the duty of loyalty, commonly referred to as the whistle blower defence: 1. If the Government was involved in illegal acts; 2. if its policies jeopardized the life, health or safety of the public servant or others; or, 3. if the public servant’s criticism had no impact on his or her ability to effectively perform the duties of a public servant or on the public perception of that ability.

Pertaining to the matter at hand, there was no suggestion or evidence the OPP was involved in any illegal act. Rather, it made a corporate decision to centralize its helicopters to Orillia, to improve service across the Province. The Commissioner expanded on this in his rebuttal to the editor:

It’s about improving service to the entire province, including the northeast: After the change takes place, the two helicopters will be staffed and available 365 days a year from 6 a.m. until midnight. This is an increase of eight hours per day or approximately 2,019 hours of scheduled availability per year. This increase is one direct benefit of the relocation of the helicopter and our pilots.

Down time for both helicopters will be reduced and safety improved because the senior engineer is located in Orillia which will make inspections more efficient. Trouble shooting will be easier with two engineers at the same site working together with a common pool of spare parts. Communication will improve with the aviation team in one location and they will all be closer to technical support from the manufacturer and Transport Canada.33

32 Exhibit 38 A: Fraser v Canada (Public Service Staff Relations Board), [1985] 2 SCR 455, (case summary) 33 Exhibit 29: North Bay Nugget, May 5, 2015, (the Commissioner’s response) MULLIGAN 2545015-0081 21 | Page

I accept Sgt. MULLIGAN’s defence is primarily based on the second principle in that the relocation would jeopardize the lives, health or safety of its officers and public. I accept this was his opinion and understand it came from years of flying, but he said, nor produced anything to convince me this was in fact the case. Specific to his claim the relocation would put officer safety at risk; I suggest there is risk every time an officer engages in any of his/her prescribed duties. The OPP is extremely proficient in the provision of training, equipment and policies to do everything reasonably possible to minimize such risks. While the helicopter may be a valuable support, ensuring the safety of an officer does not depend solely on it and the same holds true for public safety. I refer to the Commissioner’s letter, which outlined all the other resources relied upon during search and rescue missions:

The OPP helicopters are only one part of search and rescue efforts: The OPP search and rescue mandate is extensive and supported by: 250 Emergency Response Team (ERT) members deployed across the province specifically trained in search and rescue; 69 search and rescue managers; 29 tracking dogs and five cadaver dogs; 13 underwater search and recovery divers; 13 pilots, two helicopter, two fixd wing aircraft and seven unmanned aerial vehicles.

In addition, since January 2015, the OPP has leased a DHC-2T Turbo Beaver from the Ministry of Natural Resources (MNR) to support policing services in Northern Ontario. This plane is located in Thunder Bay and is crewed by OPP pilots. It can hold up to six people and is capable of landing on snow, ice, paved runway and water.34

I accept the weather will prevent the helicopter from responding to incidents in northern Ontario on occasion. Notwithstanding, I note the benefits and caveats of this can slice both ways. Such was seen the day the weather kept Sgt. MULLIGAN in Orillia which left him in a ready position to respond to the fisherman in Kempenfelt Bay. That day, the disadvantage of the weather quickly turned into an advantage, and with Mother Nature on the side of those in peril, 18 men stranded on an ice float were rescued. Owing to such variables like this, I find it difficult for anyone to suggest with any certainty, the relocation of the helicopter will cost or jeopardize lives.

My focus turns to the email35 Sgt. MULLIGAN sent the Minister. Most notably absent from it was any evidence, for example facts and statistics, to support his claim the relocation of the helicopter compromised the lives and safety of others. Rather, for 10 pages it contained complaints about his supervisor. This helped me conclude there

34 Exhibit 29: North Bay Nugget, May 5, 2015, (the Commissioner’s response) 35 Exhibit 35: Email to the Minister

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really was no concrete evidence to base his claim lives would be lost because of the relocation. Rather, it was his personal opinion, and while he is entitled to one, it was not something to vent publicly. By doing so, he discredited the OPP.

Absent any evidence, Sgt. MULLIGAN failed to convince me the relocation of the helicopter would directly jeopardize the lives of others. In fact, if the OPP manages to achieve its stated goal as reported by the Commissioner, one can only expect more good news stories to flow in regard to its increased availability.

Specific to the last principle and contrary to Mr. Girvin’s belief, I find Sgt. MULLIGAN’s letter impacted the public’s perception of the OPP’s response to serious matters. The location of persons lost, in particular those who are vulnerable, is a serious matter and priority to the OPP. Regardless of how efficient the OPP responds to such incidents in the future, I am concerned that should a helicopter not be available for whatever reason, his letter – his opinion, will come back to unjustifiably discredit the OPP.

In view of my analysis, I find Sgt. MULLIGAN’s defence that he communicated responsibly on a matter of public concern and thus alleviated his duty of loyalty to his employer cannot stand.

PART III: DECISION

After a careful analysis of all the evidence presented, I conclude the allegations of breach of confidence and discreditable conduct have been proven based on clear and convincing evidence. To this end, I find Sgt. MULLIGAN guilty of breach of confidence and discreditable conduct, contrary to sections 2(1)(e)(iii) and 2(1)(a)(xi), of the Code of Conduct.

Robin D. McElary-Downer Electronically delivered: January 10, 2017 Superintendent OPP Adjudicator

Note: Page 3 (moot) amended and recirculated to parties on January 20, 2017.

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Appendix A

Exhibit 22: Sudbury Star opinion letter, Dan Mulligan, Law Enforcement Against Prohibition, October 19, 2015 Exhibit 23: Metroland Media, Opinions, Dan Mulligan, February 1, 2012 Exhibit 24: The Nugget, Northeast losing OPP helicopter. May 4, 2015 Exhibit 25: Sudbury Star – Opinion letters, May 7, 2015 Exhibit 26: OPP Vision, Mission, Values and Promise Exhibit 27: Professional Standards Bureau Investigation Report Exhibit 28: Complaint Intake form Exhibit 29: North Bay Nugget, May 5, 2015, (the Commissioner’s response) Exhibit 30: Prosecutor’s factum, Non-suit motion Exhibit 31: Prosecutor’s Book of Authorities, Non-suit motion Exhibit 32: Defence’s factum, Non-suit motion Exhibit 33: Brantford Expositor 2015 Exhibit 34: Barrie Examiner, 2012 Exhibit 35: Email to the Minister Exhibit 36: Letter from the Minister Exhibit 37: Book of Authorities A. Haydon v Canada (Treasury Board,) (FC), [2005] 1 FCR 511 B. Haydon v Canada (Treasury Board), (FC), [2005] 1 FCR 1146 C. Stenhouse v Canada (Attorney General), [2004] 4 FCR 437, 2004 FC 375 D. Walker and Board of Commissioners of Police (City of Belleville), OPC, March 15, 1990 E. Bratzer v Victoria Police Department, [2016] BCHRTD, No. 50 F. Assn. of Management, Administrative and Professional Crown Employees of Ontario v Ontario (Ministry of Health and Long-Term Care) (Globerman Grievance), [2006] OGSBA No. 156 Exhibit 38: Book of Authorities A. Fraser v Canada (Public Service Staff Relations Board), [1985] 2 SCR 455 B. Read v Canada (Attorney General), [2006] FCJ No. 1257 C. Chopra v Canada (Attorney General), [2014] FCJ No. 333

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