So You Got Punched By a Cop: Disciplinary Action or Civil Suit? Issue Estoppel in Penner v Niagara

Mrs. Penner was on trial for the weighty offense of not properly displaying two valid license plates. Mr. Penner, her husband and the appellant in a juicy case before the SCC this month, sat in the very back of the courthouse, wearing sunglasses and chewing gum. Cst. Koscinski sat directly behind Mr. Penner, awaiting an unrelated matter.

Cst. Parker was testifying against Mrs. Penner when the court became aware of what the prosecutor termed a “chirping” noise from the back of the courtroom, a sort of “running commentary” on the proceedings:

“That’s your f***ing opinion”!! (para 9) Mr. Penner audibly added to Cst. Parker’s testimony.

When Cst. Parker finished on the stand, he took the seat at the back next to Cst. Koscinski and warned Mr. Penner he would be arrested if there were any more disturbances. As Mrs. Penner rose to testify, Mr. Penner struck up his commentary again. The prosecutor finally asks the JP to intervene:

THE COURT: Make sure that there is no interruption whatsoever, okay?

MAN FROM THE BODY OF THE COURT: Your Honour, I haven’t said a word.


MAN FROM THE BODY OF THE COURT: Until this officer approached me and threatened me with arresting me.

Trololol! At this point, Mr. Penner pulls away from Cst. Parker who contemporaneously decides to arrest the man for causing a disturbance; Cst. Kosinski assists in this endeavor, and Mr. Penner resists.  As the Court of Appeal describes:

The courtroom “dissolved into pandemonium” as the officers took the Appellant into the hallway and ultimately completed the arrest. The Justice of the Peace fled the courtroom and the court clerk followed, locking the door behind him and calling 911 (para 11)

According to his Statement of Claim, Penner suffered a black eye, a wrist injury, and bruising about his temple. He was charged with causing a disturbance, assault resisting arrest, and breach of probation (these charges were dropped at the request of the Crown later that year).

Following his release, he filed a complaint under the Police Services Act, RSO 1990, c P.15, alleging misconduct by the arresting officers.

PROCEEDING #1: Complaints Issued against the Arresting Constables 

The Niagara Regional Police Services Board held a disciplinary hearing for the two constables, which Mr. Penner participated in through self-representation. He cross-examined witnesses and made legal submissions at the hearing, which was presided over by a retired police superintendent (the hearing officer, or HO). The HO’s decision found both officers not guilty of the disciplinary charges against them.

Central to that case was whether the officers had authority to arrest Mr. Penner without the direction of the presiding Justice of the Peace. The HO decided that the law was unclear on this issue, and that the onus was on the prosecution to prove that the arrest was not authorized by statute, and that they had failed to meet that burden.

Mr. Penner appealed this decision to the Ontario Commission on Police Services, which found the arrest to be unlawful, and any forced used was therefore unjustified. The Commission held that the HO should have decided the question of whether the officers acted beyond their authority. The Constables sought judicial review of this decision to the Superior Court of Justice (Divisional Court). It found the arrest to be lawful, restored the decision of the HO, and insisted that the powers of the police and courts could continue to co-exist, especially in this case where there was no direct contradiction.  Mr. Penner appealed the order on costs, but no further—he had more business to attend to elsewhere.

PROCEEDING #2: Action for Civil Recovery

While Mr. Penner’s complaint was working its way through the Niagara Police Services Board, he filed a lawsuit against the two arresting officers as well as the court officer, the Chief of Police, and the Regional Municipality of Niagara Regional Police Services Board.

PROCEEDING #2(a): Motion under Rule 21 – Issue Estoppel

Following the news that Mr. Penner would not be appealing the judgment of the Divisional Court (the ultimate outcome of Proceeding #1), the constables advanced a motion under Rule 21 of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194, to seek determination on a question of law before trial in order to dispose of all or part of the action – namely, whether Mr. Penner’s civil claims could be barred by res judicata.

The motions judge found that Penner’s civil claim brought up the same issues and asked the same questions as the disciplinary hearing, and that the two proceedings involved the same parties. The decision of the Divisional Court was final, as Penner elected not to appeal further. On their face, these facts satisfy the test for issue estoppel in Danyluk v Ainsworth Technologies Inc, [2001] 2 SCR 460 [Danyluk]. Regarding the residual discretion granted to judges in these situations, the motions judge found “that no grounds exist in this specific case for me to exercise my discretion to refuse to give effect to the issue estoppel.”

PROCEEDING #2(b): Appeal of Ruling of Motions Judge to ONCA

Good admin law students know that all factors relevant to the exercise of discretion must be considered (ie/ written down) even if the discretionary measure is not in the end accorded (see Danyluk). This error of omission, writes Laskin JA, means that “[they] are entitled to consider afresh whether to exercise our discretion not to apply issue estoppel” (Penner v Niagara (Police Services Board), 2010 ONCA 39, 39).

At this point in these proceedings, Justices Laskin, Moldaver and Armstrong are doing the daily grind, but usually their efforts are couched in less blatant terms: the residual discretion afforded in deciding to apply issue estoppel directs a judge to ask whether it would create some “injustice” to use it.

Here’s how the CA weighed the factors in this case in deciding whether or not to use their discretion not to apply issue estoppel even though technically, it applied (or: the test for its general application had been satisfied):

PRO (exercising discretion to not apply issue estoppel [i.e., “Good Reasons To Not Apply Issue Estoppel”])

  1. Different Purposes: the court concludes that Mr. Penner probably didn’t intend to preclude a civil action by pursuing a police complaint against his arresting officers. The civil courts and the police complaints process are two separate processes with two different purposes.
  2. No financial stake: The Police Services Act does not provide for compensation for complainants in successful actions. This weighs against applying issue estoppel, but this is mitigated by the potential for gain, as issue estoppel works both ways. The example the court gives is that if the HO had found the police used unreasonable force, they would have been estopped from saying otherwise in a civil action.

CONS (exercising discretion to not apply issue estoppel [i.e., “Good Reasons to Apply Issue Estoppel in this Instance”])

  1. Expertise of the decision maker: our HO lacks legal training as a retired police superintendent, but he does have the qualifications to determine whether there were reasonable and probable grounds for arrest and whether reasonable force was used during that arrest.
  2. Procedures in the disciplinary hearing: these police inquiries are no small effort and carry grave potential consequences. The disciplinary hearing, we are told, “had all the hallmarks of an ordinary civil trial.”  Mr. Penner’s lawyer would make that quote the title of his appellate factum if such a document allowed such titles, so incensed was he about this characterization of the hearing. Still, the ONCA reminded us, witnesses were called, evidence was presented, extensive cross-examination was conducted and concluding statements were given.

One difference between the police complaints process and civil trials is that there are two different standards of proof: “clear and convincing evidence” is needed to ground findings of police misconduct, whereas proof “on a balance of probabilities” is required to satisfy a civil claim. Laskin JA says this isn’t that big of a deal, because the HO’s notes indicate he would have found no misconduct even if the standard had been the civil one. While that may be factually accurate, it sounds distastefully like an argument from the “deprived of procedural justice” side of the tracks in this neighbourhood of jurisprudence, and I look forward to the Court’s response.

  1. Mr. Penner’s active participation throughout the police complaints process (as was his entitlement, I anticipate the SCC will remind us), and finally
  2. Right of appeal: Mr. Penner’s claims were fully assessed on appeal from the Commission’s decision at the Divisional Court (a decision he did not appeal further).

The Court of Appeal concluded that on weighing these considerations, “applying issue estoppel would not be unfair or unjust.” Therefore, issue estoppel applies, most of Mr. Penner’s civil actions are struck from his claim, and he appeals to the top court in the case that surely wins the title of Most Confusing Procedural History, Ever.

Proceeding #2(c): Appeal to SCC of ONCA decision on Motion’s Judge Ruling on Rule 21 Application

In his written submissions before the SCC, Mr. Penner’s lawyer heavily emphasizes the differences between police complaints proceedings and civil trials. The parties aren’t independent: the Chief of Police appoints the prosecutor (a police officer) as well as the hearing officer (read: judge), and that HO is a police superintendent, acting or retired. Beyond their “trappings,” courthouse-like or not, the two proceedings serve very different purposes.

Regarding Mr. Penner’s right to participate in the disciplinary proceedings, the legislature’s intent in allowing and encouraging this was to increase transparency and public confidence in police oversight, not to address the complainant’s civil rights. A complainant who participates in a police disciplinary hearing should not be punished by having to forfeit their right to a civil cause of action. This would seem to defeat the purpose of the complaints process.

It is further argued that the Police Services Act itself is incompatible with the application of issue estoppel, as the language in some sections contemplates civil proceedings.

Finally, it is argued that the CA “failed to take into account the unique role of the judiciary in adjudicating allegations of police misconduct” and in doing so, allowed a retired police officer to usurp the role of the judiciary in administering the rule of law:

“The public’s already minimal confidence in the police complaints system will be substantially eroded if an investigation and adjudication run by the police is relied upon to prohibit recourse to the last vestige of independent police accountability-the Court.” (Appellant’s factum, para 75)

The Respondents are arguing in their factum that the bar is set incredibly high for reviewing discretionary decisions; as they explain, this is only done when the discretion was exercised on a wrong principle of law or where there has been some other massive obvious error.

The Respondents also say that the Appellant is seeking to fundamentally alter the settled law in Canada following the decision in Danyluk, which outlines a test of general application for issue estoppel that is malleable to the specifics of each case. The test in Danyluk (as alluded to above: (1) same question/issue, (2) prior decision must have been final/judicial in nature (3) same parties) seems to have been met, but following Minott v O’Shanter (1999), 42 OR (3d) 321, even then the courts retain the discretion to refuse to apply the doctrine if doing so would create unfairness.

It is argued that the Appellants divert the discretionary analysis away from the particular facts of the case and towards the nature of the tribunal and its role alongside the courts. This appeals to the potential for injustice, rather than actual injustice. In doing this, they miss the central issue of this appeal, which is (as framed by the Respondent), “Would the application of issue estoppel given the particular facts of the Appellant’s case be unfair and unjust?”

Finally, the Constables argue in their factum that the application of issue estoppel in this case accords with the policy reasons underpinning the doctrine of res judicata—that this parallel civil litigation is a collateral attack on a final judicial decision, and that challenging unequivocal findings of fact is also an abuse of process.

Proceedings #0 & #3

We will likely never know whether Mrs. Penner was acquitted for her crime of failing to display valid plates, but we can guess that whatever the outcome, she wishes Mr. Penner had just stayed home that day.

Once this case is decided, the remainder of Mr. Penner’s civil suit will unfold. The Respondents agree that Mr. Penner’s charges of unlawful strip search and use of defective equipment (handcuffs) survive their Rule 21 motion – the only issue being, ultimately, whether and how judicial discretion should be used to apply issue estoppel in the particulars of this case.

The Supreme Court isn’t being asked what is (in my humble opinion) the most interesting question of this whole saga—whether police officers can arrest members of the public attending court proceedings on their own volition and without the authority of the Justice of the Peace. Who rules the courtroom: the presiding judge? The attending officers? Or the man in the back wearing  sunglasses and chewing gum?

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