While the standard of proof in criminal law is to establish facts beyond a reasonable doubt, civil courts and administrative tribunals generally require that claims be proven on a balance of probabilities. Thanks to a recent decision of the Ontario Court of Appeal, we now know that the standard of proof in police discipline hearings lies somewhere in between.
Subsection 84(1) of the Police Services Act provides that “misconduct” as defined under the Act “is proved on clear and convincing evidence”. The Court of Appeal’s unanimous decision in Jacobs v. Ottawa (Police Service) [link: http://www.canlii.org/en/on/onca/doc/2016/2016onca345/2016onca345.pdf], specifies that “clear and convincing evidence” mandates a standard of proof that lies somewhere between a balance of probabilities and proof beyond a reasonable doubt.
Overturning the lower court’s decision, Justice Hourigan wrote that the Division Court erred in declining to follow the Supreme Court’s decision in Penner v. Niagara (Regional Police Board) [link: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12962/index.do] that acknowledged this third standard of proof in police disciplinary hearings. In Penner, the Supreme Court wrote:
“because the PSA requires that misconduct by a police officer be ‘proved on clear and convincing evidence’, it follows that such a conclusion might, depending upon the nature of the factual findings, properly preclude relitigation of the issue of liability in a civil action where the balance of probabilities — a lower standard of proof — would apply. However, this cannot be said in the case of an acquittal. The prosecutor’s failure to prove the charges by “clear and convincing evidence” does not necessarily mean that those same allegations could not be established on a balance of probabilities. Given the different standards of proof, there would have been no reason for a complainant to expect that issue estoppel would apply if the officers were acquitted.” [emphasis added]
Justice Hourigan concluded, “In my view, we are bound by the Supreme Court’s statement in Penner that the standard of proof in PSA hearings is a higher standard of clear and convincing evidence and not a balance of probabilities.”
This higher standard of evidence will likely make it more difficult for prosecutors in police disciplinary hearings to prove that officers have engaged in professional misconduct. However, the precise meaning of “clear and convincing evidence” has yet to be determined. Neither the Court of Appeal nor the Supreme Court has provided any guidance on the content of this third standard of proof. It also remains to be seen whether similar intermediate standards of proof will become more common before other administrative tribunals.