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Ontario Provincial Police Discipline Hearing in the Matter of Ontario Regulation 268/10

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Ontario Provincial Police Discipline Hearing in the Matter of Ontario Regulation 268/10 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. MULLIGAN 2545015-0081 2 | Page 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: MULLIGAN 2545015-0081 3 | Page 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 MULLIGAN 2545015-0081 4 | Page 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.
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