An Ontario Provincial Police Sergeant who had previously been found guilty by a professional standards bureau tribunal for speaking against prohibition at a conference in 2015 and had successfully appealed two of three charges, had the final charges recently dismissed by an Ontario court.
The original charges stemmed from Sergeant Dan Mulligan attending a conference put on by the Government of Ontario and a group called “Not by Accident”. The event took place on September 17, 2015 in London, Ontario entitled “Cannabis Legalisation – Is this a trip we want to take?”.
The 2015 Not By Accident conference featured speakers discussing the legalization of cannabis, just a month prior to the October 19, 2015 election that saw Justin Trudeau’s Liberal’s winning a majority after campaigning on a platform of, among other things, full legalization and regulation of cannabis in Canada.
The Sergeant was a 29-year veteran of the force at the time, and a member of Law Enforcement Against Prohibition (LEAP, now called the The Law Enforcement Action Partnership), a nonprofit group of current and former law enforcement, judges, prosecutors, and other criminal justice professionals who “use their expertise to advance drug policy and criminal justice solutions that enhance public safety.”
Sergeant Mulligan had been ordered by his superior to not attend or speak at the conference, but he did so, anyway. As a result, he was charged with two counts of insubordination and one for discreditable conduct.
The insubordination charges were because Mulligan had disobeyed the orders to not attend or speak at the conference. The discreditable conduct was because his employer alleged that the act of speaking at the conference – even though he was not in uniform and emphasized he was not speaking on behalf of his employer – was likely to discredit the reputation of the Ontario Provincial Police.
At the initial hearing in January 2017, a hearing officer dismissed one insubordination charge, arguing it was not lawful to prevent the Sergeant from attending in plain clothes. But Mulligan was convicted of the other two charges, and had a penalty of a forfeiture of forty hours in relation to the discreditable conduct charge and a forfeiture of twenty-four hours due to the insubordination charge.
Mulligan then appealed these two convictions to the Ontario Civilian Police Commission in December 2017, with the Commission accepting his appeal of the discreditable conduct but rejecting his appeal of the insubordination charge. The most recent court ruling then subsequently revoked the insubordination charge, as well, dismissing the Commission’s findings.
The initial charges arose because Mulligan had been invited to speak at the conference to give his opinions on legalization. After becoming aware of the invitation, Mulligan’s supervisor, Staff Sergeant Cameron was issued a directive by his superior to issue a verbal and written order to Sergeant Mulligan that he was not allowed to attend the conference.
Mulligan attended out of uniform and stated in his talk that he was only giving his opinion, not the opinion of his employer, when he stated that he didn’t support prohibition.
Since Mulligan did attend and speak at the conference, he was then charged with insubordination for violating the orders to not attend or speak, and discreditable conduct for behaviour that was argued to damage the credibility of the OPP in the eyes of the public. His employer argued that seeing an officer sworn to uphold the laws of prohibition speaking out against them would discredit the law enforcement group in general, leading the public to believe the Sergeant wouldn’t enforce those laws.
After the initial hearing and finding, Mulligan then appealed that ruling with the Ontario Civilian Police Commission who accepted his appeal of the discreditable conduct charge, but rejected his appeal of the insubordination charge. The Commission reasoned that given public opinion around legalization at the time, that Mulligan’s talk was not likely to discredit the OPP, but that the orders to not attend or speak which lead to the insubordination charges were lawful.
In the most recent appeal and ruling released in April of this year, a Divisional Court found that the insubordination charge was also not lawful because the The Honourable Harriet E. Sachs ruled that the Commission’s reasoning for dismissing the discreditable conduct charges also applied to the insubordination charges.
“Having made the finding that the Hearing Officer erred in relying on Inspector Andrews’ evidence to support the discreditable conduct count,” writes Justice Sachs, “it would be manifestly unreasonable for the Commission to use this evidence (the only evidence on the point) to support a finding of guilt on the insubordination count.
“The issue remains whether it is likely that a reasonable person would have inferred from Sergeant Mulligan’s presentation at the conference that he would not enforce the laws he was obligated to uphold. There is no question that in certain circumstances this inference could be made. But if it was a reasonable one, it would also form the basis for a finding of discreditable conduct.”
“The Commission disagreed that this inference was an objectively reasonable one on the facts of this case. Therefore, it would be manifestly unreasonable for them to draw the same inference to support a finding of insubordination. In the result, given the findings made by the Commission, the test in s.80(2) cannot be met and the result is inevitable: the underlying charges must be dismissed.”
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