Ontario Civilian Police Commission inquiry into conduct of Mayor Daryl Bennett's conduct on Peterborough-Lakefield Police Services Board

8/10/2019 Ontario Civilian Police Commission inquiry into conduct of Mayor Daryl Bennett's conduct on Peterborough-Lakefiel

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Appearances:

Richard Taylor, Counsel for Daryl BennettPrabhu Rajan and Melanie Goren, Counsel for the Ontario Civilian

Police Commission

Background

1. Daryl Bennett is a member of the Peterborough-LakefieldPolice Services Board (the Board). Mr. Bennett is also themayor of Peterborough (Mayor Bennettor the Mayor).

2. The City of Peterborough is located in east central Ontariowith a population of approximately 135, 000 people.

3. Policing in the community is provided by an amalgamatedmunicipal police force, the Peterborough Lakefield PoliceService (the Service), headed by Chief Murray Rodd (ortheChief).

4. The events that gave rise to this hearing took placeprimarily between March 2011 and September, 2012. Theevents included a protracted dispute over the Services

proposed budget for 2012.

5. The composition of the Board for most of the relevant timeperiod was:

Chair - Nancy MartinVice Chair - R. Kenneth ArmstrongMayor Daryl BennettReeve Mary Smith

Robert Lightbody

The Administrative Assistant to the Board was NiquelPritchard Pataki.


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6. On April 16, 2012, the Ontario Civilian Police Commission(the Commission) received a letter from a Peterboroughbusinessman requesting an investigation into the conductof Mayor Bennett in relation to his role as a member of the

Board.

7. On June 1, 2012 the Commission asked for the Boardsposition on whether an investigation was necessary. In aletter dated June 20, 2012 the Commission received aresponse from the Board that included a lengthychronology of Mayor Bennetts actions while on the Board.

8. As per section 25 (1) (a) of the Police Services ActR.S.O.

1990, c.P.15, as amended (the Act), on September 4,2012, at an in camera meeting of its members, theCommission decided on its own motion to conduct aninvestigation. As a result of its investigation, theCommission decided to hold a hearing into the conduct ofMayor Bennett as a member of the Board.

9. Mayor Bennett was charged with engaging in conduct thatdiscredits and compromises the integrity of the Board or

the Service, contrary to Sections 2, 5, 6, 8, and/or 13 ofthe Members of Police Service Boards - Code of Conduct,O. Reg. 421/97 (the Code of Conduct), enacted under theAct.

10. An amended Notice of Hearing1dated December 23, 2013(the Notice) alleged that Mayor Bennett had engaged inconduct that discredits and compromises the integrity ofthe Board or the Peterborough-Lakefield Police Service.

The following 11 specific allegations of misconduct werelisted in the Notice:

1The original Notice of Hearing dated January 31, 2013, was amended by way of a Ruling on Motion,

dated December 19, 2013, to add 2 additional allegations to the 9 allegations that had been set out in theoriginal Notice of Hearing.


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1) On receiving a confidential complaint about theconduct of Chief Murray Rodd, he did not keep thematter confidential among members of the Boardbut shared the complaint with members of

Peterborough City Council and a member ofPeterborough City staff;

2) On receiving a confidential complaint about theconduct of Chief Murray Rodd, he did notimmediately bring the complaint to the Board foraction;

3) While negotiating the budget for the PeterboroughLakefield Police Service for 2012, he attempted to

negotiate directly with Chief Murray Rodd ratherthan, as a member of Council, with the Board;

4) He publicly expressed disagreement with adecision by Chief Murray Rodd to hire a civilian tothe position of Police Service CommunicationsCoordinator which decision was supported by theBoard;

5) He authored and sent a letter to the Minister of

Community and Safety and Correctional Services(the Minister) advocating that Board Chair NancyMartins term not be extended after the Board hadvoted down his motion not to support her termbeing extended;

6) He authored and sent a letter to the Ministeralleging that Board Chair Nancy Martin hadcommitted misconduct while not bringing theallegation to the Board for action;

7) He authored and sent a letter to the Ministeralleging unsupported allegations of misconductagainst Board Chair Nancy Martin;

8) He publicly condemned the Commissionsinvestigative process, describing it as a farce


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13. The Service serves the City of Peterborough and theTownship of Selwyn. The size of the population served setsthe make-up of the Board which in this case is set out in s.27(5) of the Act, altered by the amalgamation agreement

signed in 1998. Pursuant to s. 27(5)(a) the head ofPeterborough City Council, Mayor Bennett, and the Mayorof Selwyn Township, Reeve Smith, are automaticallymembers of the Board. The Province appointed two Boardmembers, namely Nancy Martin and R. Kenneth Armstrong,and Peterborough Council appointed Robert Lightbody as acommunity representative.

14. It is to be noted that neither Mayor Bennett, nor Reeve

Smith, exercised their rights as the heads of theirmunicipal councils, under s. 27(5)(a) to choose not to to siton the Board. This was their right. Each of them could havechosen not to be on the Board, in which case anothermember of their council would have been appointed in theirplace.

Mayor Bennetts Overarching Positions

15.

Mayor Bennetts actions andresponses to this hearing wereguided by the following positions:

1) A mayor who sits on a PSB is not always bound bythe Act because his/her obligations andresponsibilities as mayor supersede or trump therequirements of any other role he or she takes on.

2) The Charter of Rights and Freedoms2, protects hisright to free speech and association and that theapplication of the Code of Conduct to hisbehaviour is an infringement of these rights.

2Part I of the Constitution Act, 1982, being Schedule B to the Canada

Act 1982(UK), 1982, c 11. (the Charter).


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16. Because these two positions were taken generallythroughout Mayor Bennetts arguments we address them atthe outset of our reasons.

MAYORS WHO SERVE AS MEMBERS OF A PSB

17. In his testimony Mayor Bennett repeatedly madecomments that his role as mayor was more significant thanhis role as a Board member. He made comments that hisrole as mayor was paramount, that the mayorshat sitson top of all other hats and he consistently stated that Iam head of Council and Mayor. That trumps many aspectsof what I do.

18. While we understand Mayor Bennetts commitment to hisrole as mayor, we find that this demonstrates amisunderstanding of the Act and the obligations it placeson all Board members.

19. Counsel for Mayor Bennett argued that his role as mayorsupersedes and overrides the obligations placed on MayorBennett by the Act.

20. We do not accept this argument. The Code of Conduct andmore generally the Act applies to all members of theBoard, regardless of appointment status or otherobligations the Board member may have.

21. All Board members are required to carefully reconcile theirroles and responsibilities without compromising theirobligations under the Act.

22. The legislature in providing for PSBs ensured that no onelevel of government would control a PSB. This is reflectedin the composition of PSBs. Members are appointed by bothmunicipal councils and the Province. Municipalappointments consist of both council members and a


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community representative who is neither a member ofcouncil nor employed by council.

23. This tripartite mix of appointments is tailored to achieve

balance and representation of the goals, needs andinterests of the community, the municipality and theProvince.

24. In reality, being a member of a PSB is not generally a full-time occupation. In setting up PSBscomprised of part-timemembers, the legislature clearly understood that memberswould occupy other roles. Indeed, there is no requirementthat a mayor sit on the PSB for his or her municipality. It is

a choice that the mayor makes.Section 27(5)(a) of the Actstates that the PSB shall consist of:

the head of the municipal council or, if the headchooses not to be a member of the board, anothermember of the council appointed by resolution of thecouncil;

25. While a PSB is funded by the municipality it is not a

committee of Council. It is a separate and distinct entitywith responsibilities set out in s. 31 of the Act and in otherprovisions of Part III of the Act.

26. Municipal Councils are governed by The Municipal Act,2001, S.O. 2001, c. 25. PSBs are governed by the Act.Both are provincial statutes. The legislation is separate butequal in force and effect. One Act is not more importantthan the other. Neither Act trumps the other.

27.

All PSB members are bound by the obligations andresponsibilities of the Act as long as they are members ofthe PSB. There is no exception or distinction in the Act.Therefore, when a mayor is a member of a PSB he or she isbound to abide by the Act and relevant Regulations.


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28. While Mayor Bennett is the head of the Peterboroughmunicipal council, there is no requirement for the Board toreport to him or to follow any of his individual directives.

29.

In his affidavit (Exhibit 79) at paragraph 3 Mayor Bennettstated that:

Pursuant to the Police Service Act, I indicated mydesire that I would be the only elected representativeof the Corporation of the City of Peterborough, on thePeterborough Lakefield Police Services Board.

30. Mayor Bennett could have exercised his right under s.

27(5)(a) to choose not to be a member of the Board andthereby have allowed City Council to appoint someone elsefrom City Council to sit on the Board. He did not exercisethis right. He chose clearly and deliberately to sit on theBoard.

31. In the hearing and in closing submissions Mayor Bennettdescribed the positions of being mayor and a member ofthe Board as akin to wearing two separate hats and that

the mayors hat was higher and always sat on top of hisBoard member hat. This analogy does not fully representthe situation that Mayor Bennett is in. Unlike wearing a hat,once appointed to the role of a PSB member, the role, isnot freely adorned or discarded as a member wishes.

32. Mayor Bennett, in choosing to serve as a Board memberwhile he was mayor, chose to fulfill two important roles.

33. While he could have decided not to act as a member, oncehe took on that role he could not shirk his responsibilities.Instead, it was incumbent upon him to find a way to fulfillhis obligations as mayor and Board membersimultaneously.


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34. A major part of these obligations include the responsibilityof abiding by the provisions of the Code of Conduct.

35. The Act gave Mayor Bennett the option of choosing not to

be a member of the Board so that the City Council couldappoint another member of City Council to the Board. Oncehe chooses to be a member of the Board, the Act does notgive him the option of choosing his role as mayor over hisrole as a member of the Board.

36. We find therefore that Mayor Bennetts argument that hisrole as mayor trumped his role as a Board member isunsupportable and incorrect. This is not a defense for his

conduct.

THE CHARTER AND ITS APPLICATION TO BOARD MEMBERS

37. Mayor Bennett argued that these proceedings, in so far asthey sought to assess whether the mayors commentsviolated the Code of Conduct, were unconstitutional as theyconstitute a restriction on the mayors freedom ofexpression as protected by s. 2 (b) of the Charter.

38. Mayor Bennett also argued that the Code of Conductrestricted his freedom of association as guaranteed by s. 2(d) of the Charter. He suggests that his right to associatefreely with his City Council colleagues has been impeded.

39. We summarily dismiss Mayor Bennetts argument that hiss.2 (d) rights have been infringed. The Code of Conductdoes not limit Mayor Bennetts ability to establish or

maintain an association. There is no evidence of this beforethe Panel and no case law has been presented thatsupports this proposition.

40. The Code of Conduct prescribes that the standard ofconduct that PSB members must meet is higher than thatof the general public standard of conduct. Mayor Bennett is


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free to associate with his City Council colleagues, but thereare limits on what information he can share about Boardbusiness. The limits prescribed in the Code of Conduct arelimits of conduct not association.

41. We acknowledge that the Code imposes restrictions on freeexpression. These restrictions are however justified in afree and democratic society by the limits expressed unders. 1 of the Charter.

42. Section 1 of the Charterstates:

The Canadian Charter of Rights and Freedomsguarantees the rights and freedoms set out in it subjectonly to such reasonable limits prescribed by law as canbe demonstrably justified in a free and democraticsociety.

43. We conclude that a PSB members limits to free speech arejustified by the importance of public confidence in policingas well as confidentiality and security concerns related tothe position of a PSB member: see R v. Oakes 1 S.C.R.103.

44. The limits to speech of the PSB member are minimal andare directly related to the legislative intent and theobligations of a board member under the Act.The OntarioCourt of Appeal held in Browne v. Ontario CivilianCommission on Police Services, [2001] O.J. No. 4573 thatthe legislative purpose of the Act is to increase publicconfidence in the provision of police services.

45.

Most importantly, the limits do not prohibit a PSB memberfrom expressing his or her opinion. Indeed the Code ofConduct explicitly states at para. 6 that a board memberwho expresses disagreement with a decision of the boardshall make it clear that he or she is expressing a personalopinion.


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46. The limits on this right are balanced by the power andprivilege one assumes by choosing to serve on a PSB. It isalso balanced by the impact of boundless comments madeby someone in this position of power.

47. There is a rational connection between the limit and thelegislated intent behind the limit. The intent behind the Actand the Code of Conduct is to increase public confidence inpolicing. The limit on PSB member conduct acts to ensurethat PSB members will conduct themselves in a mannerthat will not bring disrepute to policing or compromise theintegrity of the PSB or the police service it oversees.

48.

We find that the benefit derived from the Code of Conductoutweighs the minimal infringement of the s.2(b) right ofPSB members.

49. Finally, we find that this infringement is an infringementthat is consciously adopted by anyone who chooses toserve as a member of a PSB. People are not forced intositting on the PSB. It is a choice that they take on with fullknowledge that they will have to adhere to the obligations

of the Act and Regulations enacted thereunder. Section 32of the Act requires that Board appointees take an oath ofoffice in which they promise to perform their duties

faithfully, impartially and according to the Police ServicesAct.

50. In the Inquiry into the Conduct and Performance of Dutiesof Norman Gardner of the Toronto Police Services Board(March 1, 2004, OCCPS, hereinafter Gardner), theCommission laid out the importance of a PSB membersrole:

In a very real way they act as public stewards inensuring that police forces are representative of andaccountable to the communities they serve...(emphasisadded)


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51. Stewardship is defined as the conducting, supervising ormanaging of something: especially the careful andresponsible management of something entrusted to onescare. (Merriam-Webster Dictionary, 2014 online edition)

52. PSB members are responsible for the careful andresponsible management of a police service which dealswith the publics liberty and safety. Members mustunderstand that to be a public steward, is to first andforemost serve the public, not ones own self-interests. Thisrequires limits at times to ones behaviour, as is provided inthe Code of Conduct.

53.

We find these limits to be justified and reasonable for aPSB member given his or her responsibility.

54. Therefore, we find that Mayor Bennettsarguments that hisCharterrights provide him with the authority to say and dowhatever he wanted is a flawed understanding of hisentitlements under the Charter and a mischaracterizationof the limits that he chose to be constrained by.

Standard of Proof and Legal Test

55. The standard of proof is the civil law standard, namelyproof on a balance of probabilities. The Commission mustbe satisfied on the basis of clear, cogent and compellingevidence that the allegations have been proven. TheCommission must consider all evidence properly before it.Hearsay evidence may be accepted and considered, but itmust be carefully weighed: see Burrows and OntarioProvincial Police, (August 13, 2012 OCPC).

56. The balance of probabilities test is elucidated in theSupreme Court of Canada decision F.H. v. McDougall,[2008] S.C.J. No. 54, where the court held that the trial

judge must scrutinize the relevant evidence with care to


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determine whether it is more likely than not that an allegedevent occurred.

57. The balance of probabilities standard is less onerous than

the criminal standard which requires that the case beproven beyond a reasonable doubt.

58. The burden to prove the case rests on the Commission as itis the party that has brought the application.

59. F.H., supra, provides us with further guidance on thestandard we must meet with our findings. In their decisionthe Supreme Court held that when the correct standard

was applied even if not expressly stated, the reviewingcourt would not intervene. The Supreme Court affirmedthat an appellate court should only intervene with factualfindings if the decision being reviewed contains findings offact that are clearly wrong, unreasonable or unsupportableby the evidence.

60. The F.H., supra, decision upholds the very well establishedprinciples of evidence that an appellate court will be hard

pressed to find a palpable and over-riding error wherethere is some evidence to support the conclusion drawn bythe trier-of-fact: see also H.L. v. Canada, (AttorneyGeneral), [2005] 1 S.C.R. 401, 2005 SCC 25, and Housenv. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.

61. In the Matter of an Inquiry under s. 25 (1) of the Act Intothe Conduct and Performace of Duties of Greg Oliver, AMember of the Stirling-Rawdon Police Services

Board,(October 7, 2014, OCPC) (hereinafter Oliver), theCommission confirmed the origins of the legal test todetermine if Board member misconduct took place:

The tests adopted and applied by the Commission ininquiries pursuant to section 25(1)(a) of the Act have


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been derived from inquiries into the conduct of policeofficers.

62. This test in turn emerged from the Act which establishes a

duty on police officers not to bring any discredit to a policeforce. In our view, this duty and expectation extends to allresponsible for the effective operations of policing inOntario, including PSB members.

63. The Commission in Gardner, supra, stated:

In many respects, the obligation on Board appointeesnot to act in a manner likely to compromise theintegrity of the Board or the police force is similar to acorresponding duty imposed on police officers not toact in a manner [...] likely to bring discredit upon thereputation of the police force.

64. There are many cases dealing with misconduct of policeofficers. They articulate some helpful principles but themost often relied upon and quoted legal test formisconduct was first fully articulated in Girard v. Delaney,(1995) 2 P.L.R. 337, at p. 349, where the Ontario Board ofInquiry held:

1. The test is primarily an objective one.

2. The Board must measure the conduct of theofficer by the reasonable expectations of thecommunity.

3. In determining the reasonable expectations of the

community, the Board may use its own judgment,in the absence of evidence as to what thereasonable expectations are. The Board mustplace itself in the position of the reasonableperson in the community, dispassionate and fullyappraised of the circumstances of the case.


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4. In applying this standard, the Board shouldconsider not only the immediate facts surroundingthe case but also any appropriate rules andregulations in force at that time.

5. Because of the objective nature of the test, thesubjective element of good faith (referred to in theShockness case) is an appropriate considerationwhere the officer is required by the circumstancesto exercise his discretion.

65. In the case of Gillespie v. P.C. Shockness (October 4, 1994,Board of Inquiry), referred to in the test above, the Ontario

Board of Inquiry held that a subjective finding of good faithon the part of the officer could defend against a technicalbreach of the law.

66. The Board of Inquiry in Girard v. Delaney, supra, was verydirect in response to this, concluding that while good faithcan be considered as part of the assessment the test isobjective with a high level of importance placed on therequirements of the applicable rules and regulations. It

was held that:

An officers neglect of duty, without any element of badfaith or recklessness, can [still] bring discredit upon thereputation of the police force.

67. Further, in Mancini v. Courage, (August 12, 2004), OCCPS,hereinafter Mancini) the Commission elaborated on theapplication of the test and how to measure the reasonable

expectation of the community:

The measure used to determine whether or not conductis discreditable is the extent of the potential damage tothe reputation and image of the service should theaction become public knowledge.


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The Evidence

68. The documentary evidence in this case is generally not indispute.

69. There were 80 exhibits entered into evidence.

70. There were 8 witnesses called by Commission Counsel:

-Warren Korol (Investigator for the Commission),-Niquel Pritchard-Pataki (Administrative Assistant to theBoard),-Nancy Martin (former Chair of the Board),-Camile Parent (author of the written complaint to theCommission about the conduct of Mayor Bennett),-Brent Whetung (author of the email to Mayor Bennettabout the Chiefs use of language in a news interview),-Paul Thompson (Police Services Advisor with theMinistry of Community Safety and CorrectionalServices) and-Mayor Mary Smith (of the Township of Selwyn andmember of the Board).

71.

There were 6 witnesses brought by counsel for MayorBennett:

-Mayor Richard McGee (Mayor of the City of KawarthaLakes),-Patricia Lester (City Solicitor for Peterborough),-Darren Locke (System Administrator withPeterborough Utilities),-Robert Hall (Peterborough City Councillor),-Robert Lightbody (Board member from January 2011to 2012) and-Mayor Daryl Bennett.


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72. We do not find it necessary in this decision to make generalfindings of credibility relating to each of the witnesses thathave testified, or to summarize their testimony. We haveopted where appropriate to state the credible evidence that

we rely on, its weight and why it is relevant to the specificallegation.

73. In assessing credibility of witnesses testimony, we takeguidance from the well-established principles set out in thetraditionally applied British Columbia Court of Appealdecision Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A),in which it was held that:

In short, the real test of the truth of the story of awitness in such a case must be its harmony with thepreponderance of probabilities which a practical andinformed person would readily recognize as reasonablein that place and in those conditions.

74. Testimony that is consistent, without ulterior motive,without embellishment and corroborated and/or confirmed,tends to be credible: see Shah v. George Brown College,

2009 HRTO 920 (CanLII). Credible testimony can bedemonstrated by witnesses who: have a clear ability tounderstand and recollect events, have no reason tomanipulate evidence, and who will not benefit from acertain accounting of the evidence: see Shah, supra.

75. In the Commissions recent decision of Constable MichaelOReillyand The Ottawa Police Service, (December 5, 2014,OCPC), the Panel confirmed that credibility determinationsshould not be made on assessments of demeanor alone.The decision affirmed the specific credibility questionsasked in Pitts and Director of Family Benefits Branch of theMinistry of Community and Social Services, 51 O.R. (2nd)302 (Div. Ct.), including:


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MAYOR BENNETTS TESTIMONY

80. Mayor Bennetts testimony was not consistent. He wasevasive, guarded and often would not answer simple direct

questions. He often began with blanket denials that helater qualified or completely contradicted. For example, hestated that he had no direct contact with the Chiefregarding the 2012 budget for the Service. Later in histestimony, he admitted that he made two phone callsdirectly to the Chief.

81. The Mayor had a hard time recalling some significantmatters, including how it came to be that he gave Mr.

Lightbody a copy of the confidential Commissioninvestigation report into his conduct.

82. Frequently, he would not answer questions in cross-examination without some display of resistance oravoidance, whether that being some form of non-responsiveness or giving irrelevant answers.

83. On several occasions the Panel had to remind Mayor

Bennett of his duty to answer the questions truthfully andto the best of his knowledge.

84. We find on a balance of probabilities that the Mayorstestimony on a whole was not dependable or credible. Wefind however that some aspects of his testimony could berelied on when consistent and corroborated by othercredible witnesses or documentary evidence.

The Allegations

85. There are two questions that we must answer for each ofthe allegations:


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1) Whether the allegation against Mayor Bennett hasbeen substantiated with clear, cogent andconvincing evidence; and

2)

Whether the conduct alleged has been proven ona balance of probabilities.

86. We find that all 11 allegations against Mayor Bennett havebeen substantiated and the conduct alleged proven on abalance of probabilities.

87. We now turn to our findings on each individual allegation.

Allegation #1:On receiving a confidential complaint about theconduct of Chief Murray Rodd, Mayor Bennett did not keep thematter confidential among members of the Board but shared thecomplaint with members of Peterborough City Council;

88. The first allegation (or Allegation #1) against MayorBennett relates to an email Mayor Bennett received fromBrent Whetung, a member of the public, on December 7,2011.

89. In the email, Mr. Whetung requested an apology from theChief as a result of comments that were made by the Chiefon Chex News, where the Chief stated we have real badguys firing real bullets at us, we dont need politicians firingarrows at us.

90. Mr. Whetung deemed these comments offensive and yet,he also testified that he had no interest in his complaint

becoming a big issue in the media.

91. Mayor Bennett is alleged to have replied to Mr. Whetungsemail on December 8, 2011, copying members ofPeterborough City Council. This email included a copy ofMr. Whetungs complaint along with the Mayors suggestionthat Mr. Whetung direct his concerns to the Chief. Mayor


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Bennetts email can be found in Exhibit 6: CommissionCounsels Book of Documents (Commission Counselsbook) at Tab 31. The email reads, in part:

Thank you for your email. I saw the same referenceand I appreciate your concern. The Chief of Policereports to the Police Services Board, and not to CityCouncil; if you are seeking an apology, I would suggestthat you direct it to the Chief of Police who can becontacted [email protected].

92. The email demonstrates that the Mayor had copied theother members of City Council as their names and email

addresses appeared in the CC line of said email. TheCouncillors that were copied include: Andrew Beamer, BobHall, Bill Juby, Dan McWilliams, Dean Pappas, Henry Clarke,Jack Doris, Keith Riel, Lesley Parnell and Len Vass.

93. Chief Rodd testified that he made the comment Mr.Whetung took offence to, when a local reporter phoned himand asked him if he wanted to respond to Mayor Bennettscomments about the Chiefs salary. The Chief stated thathis comment was taken directly from Shakespeare and hedid not intend to offend First Nations people. He statedthat he was trying to express that he felt attacked by themunicipal politicians involved.

94. Mr. Whetung testified that he sent the email to MayorBennett because he was also a member of the Board.Mayors who sit on PSBs are often perceived as having themost influence on that PSB. It makes sense that Mr.Whetung would send his complaint to Mayor Bennett as ahighly visible and influential representative of the Board.Mr. Whetung also testified that he wanted the email to bekept private and confidential.

95. Mayor Bennett admitted to sending the email to Mr.Whetung and to members of City Council.
mailto:[email protected]:[email protected]:[email protected]


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96. When asked by the Panel how he decides if an email fromthe public is confidential, Mayor Bennett stated, I dontfeel the need to make that decision. If someone indicatesthat theyre looking for my personal response, I would treat

my response as being of a personal nature. Therequirement for confidentiality is quite broad. He advisedthe Panel that he copied council members because hewanted them to know how he responded to Mr. Whetungsemail.

97. Mayor Bennett stated in his email response to Mr. Whetungthat the Chief reports to the Police Service Board. Indeed,one of the key functions of a PSB is to act as the employer

of the chief of the police services in their municipality.Therefore the Board employs and supervises the Chief.

98. The duties and responsibilities of PSBs are clearlyarticulated in the Act. Subsection 31 (e) states that theBoard shall direct the chief of police and monitor his or herperformance

99. As an employer, the PSB is responsible for the supervision

of the Chief. Personnel matters for a variety of reasons arekept confidential between an employer and an employee.Not only is this just common sense business practice this isalso the legal obligation of government employers. As aBoard member Mayor Bennett is a member of the employerof the Chief and as such he is bound by privacy restrictionsrelated to the Chiefs employment.

100.The Freedom of Information and Protection of Privacy Act,

R.S.O. 1990, c.F.31, as amended, and the MunicipalFreedom of Information and Protection of Privacy Act,R.S.O. 1990, c.M.56, as amended, articulate the privacyrights of employees who work in government institutions.Both acts require that government employers takemeasures to ensure privacy for public employeespersonnelinformation. These acts dictate that personnel files should


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be limited to authorized staff who need access to personnelinformation to carry out their duties. Complaints aboutemployees would constitute private personnel information.

101.

Therefore, we find that Mr. Whetungs email complaint toMayor Bennett (as a Board member) was a confidentialpersonnel complaint about an employee of the Board.

102.We can see no reason why City Councillors should havebeen privy to this complaint prior to the Chiefs employer orat all for that matter.

103.Counsel for Mayor Bennett argued in closing submissions

that since the municipality funds the police, City Councillorsshould be informed of issues related to the Chief andpolicing. Giving Council general reports at Council meetingsof general policing issues is not at issue here. It is veryspecifically the release of information to Council that wouldonly be in the purview of the Board as the employer of theChief. City Councillors are not the employers of the Chief.They do not supervise him or have any direct authorityover his performance. That is solely the function of the

Board.

104.Mayor Bennett gave several other reasons why he thoughtit was appropriate to share this matter with the rest of CityCouncil. We find those reasons not to be supported.

105.We found that Mr. Whetungs, the Chiefs and the Mayorstestimony with respect to this allegation to be credible. Wefind that the documentary evidence supporting this

allegation to be clear, cogent and convincing. This evidenceis highly relevant as it speaks directly to whether or not theconduct alleged occurred.

106.Following an assessment of the evidence and the testimonyof the witnesses, the Panel has determined that the


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conduct alleged in Allegation #1 has been proven on abalance of probabilities.

Allegation #2: On receiving a confidential complaint about the

conduct of Chief Murray Rodd, Mayor Bennett did not immediatelybring the complaint to the Board for action;

107.The second allegation (or Allegation #2) speaks to thesame email exchange detailed in Allegation #1.Commission Counsel alleges that Mayor Bennett, uponreceiving Mr. Whetung's email, did not send the emailimmediately to the Board.

108.

Commission Counsel alleges that instead of sending it firstto the Board as would be his obligation as a member of theBoard, the mayor first sent it to City Council, "waitedalmost 24 hours and then had his assistant pass it on tothe Board."

109.According to Commission Counsel, on December 7, 2011,Mr. Whetung emailed Mayor Bennett. On December 8,2011, Mayor Bennett emailed Mr. Whetung and copied City

Councillors and a member of City staff. On December 9,2011, Mayor Bennett emailed his assistant, Ms. Watson,and asked her to forward Mr. Whetungs email to the Board.Ms. Watson emailed Ms. Pataki the same day and askedMs. Pataki to forward the email to the Board. Copies of allof these emails are in Commission Counsels book at Tabs31 and 34.

110.It is very clear from the three emails above that Mayor

Bennett did not send the complaint about the Chief first tothe Board.

111.The three emails included in Commission Counsels book,also provide the times and dates when Mayor Bennettresponded to the email (copying members of the City


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Council) and the date and time he requested his assistantto send the email to the Board.

112.Mayor Bennett asserted that no temporal obligation to

bring the complaint immediately to the Board exists in theCode of Conduct or in the Act.

113.According to Mayor Bennett, a three business day timelimit applies to the Board's processing of complaintsinvolving police chiefs. However, he states that this is aBoard obligation and he was not acting on behalf of theBoard.

114.We note here that the Mayor was acting on behalf of the

Board. The email was sent to him as a Board member, hedid not respond to the email saying his response was his

personal opinion and even if he did that would not be alikely defense given that this was so evidently a Boardmatter and he was being contacted in that regard.

115.Mayor Bennett stated that even if the above rule applies tohis handling of Mr. Whetung's email, he complied with thisrule by directing his assistant to send the email to Ms.

Pataki on the day immediately following his receipt of theemail.

116.Commission Counsel argued that as a Board member theMayor was obligated to send matters about the Chief firstto the Board and not any other body as the Chief isemployed by the Board.

117.The question to be asked here is what would constitute

immediate? The Oxford Dictionary (Oxford UniversityPress, 2014 ed.) defines immediately as done at once;instantly.

118.We can see from the chronology of events that MayorBennett did not email the Board with the complaint aboutthe Chief immediately, at once or instantly:


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-Mr. Whetung emailed Mayor Bennett at 6:24 pm onDecember 7, 2011.

-Mayor Bennett replied to Mr. Whetung (copying CityCouncil members) on December 8, 2011 at 9:38

am.-Mayor Bennett emailed his assistant Ms. Watsonrequesting that she send Mr. Whetungs email to theBoard on December 9, 2011 at 9:19am.

119.We find that in most cases it would not have been aconcern that Mayor Bennett forwarded the complaint to theBoard within one business day. The problem arises becauseat the first instance when he addressed this complaint he

did not include the Board.

120.In the email quoted above Mayor Bennett states that theChief reports directly to the Board and not City Counciland yet he proceeds not to report this issue first to theBoard that supervises the Chief. In doing this he clearlydemonstrates that he does not feel accountable to theBoard in the way he feels accountable to City Council. Thismatter however was not for City Council to deal with. It

was a confidential issue which should have been dealt withby the Board.

121.The problem arises under this allegation because MayorBennett sent this confidential complaint to others before heinformed the Board.

122.We find that immediate in this case would be the firstavailable instance in which Mayor Bennett dealt with theemail that was sent to him by Mr. Whetung.

123.To make a determination on this allegation the Panel needonly rely on the documentary evidence as it is directlyrelevant to the determination and Mayor Bennett did notprovide any evidence that would disprove the emailchronology above.


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to a 4% increase from the year before or the Mayor wouldgo after Lakefield to do an OPP costing.

131.Chief Rodd testified that he perceived this as an attempt to

intimidate him. Chief Rodd stated that he told Mr.Armstrong that the discussion would have to happen at thetable between Council and the Board. The Chiefstestimony of this was corroborated by the Board Chair atthe time, Ms. Nancy Martin.

132.Mr. Armstrong did not appear as a witness. We do notimpute any negative inferences from this.

133.

Mayor Bennett denied having sent Mr. Armstrong to theChief to negotiate the budget. He recalled meeting with Mr.Armstrong, discussing the budget and discussing hisopinion about how to resolve the budget dispute. Herecalled showing Mr. Armstrong a document with variationsof police budget increases and how that would affect theCity Council budget.

134.Mayor Bennett testified that he told Mr. Armstrong that hispreference would be for a police budget increase from theyear before of 4% to bring it to a total of no more the 10%of the City budget. This would amount to a seriousreduction in the increase that the Chief had proposed in hisbudget.

135.Mayor Bennett testified that this was his preference andnot a formal proposal.

136.Mayor Bennett testified that he did not think it was

inappropriate for Mr. Armstrong to share the informationfrom their discussion with the Chief. He testified that if Mr.Armstrong thought it was appropriate to go to the Chiefwith this information, he did not have an issue with that.


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137.There are elements of the testimony of both Mayor Bennettand Chief Rodd that are consistent and corroborative.Based on that evidence, it is clear that:

-Mayor Bennett phoned Chief Rodd directly on twooccasions and spoke about the 2012 Service budget.

-Mayor Bennett called the Chief these two times,subsequent to a meeting where the Service budgetwas discussed. He called specifically to follow up onthe discrepancy between the proposed number by theBoard and the expectations of City Council.

-Mr. Armstrong (while a member of the Board) had ameeting with Mayor Bennett, where Mayor Bennettexpressed that he would like the Service budget to beincreased by 4% only.

-Mr. Armstrong subsequently met with Chief Rodd andinformed him of Mayor Bennetts preference.

138.The Chief testified that he understood from theseconversations that the Mayor was trying to negotiate withhim directly about budget matters.

139.The Mayor denies this.

140.Given that the facts have been admitted in this allegation,the issue revolves around whether these forms of contactbetween the Chief and Mayor Bennett were intended by theMayor to be attempts to resolve City Councils concernsabout the Service budget.

141.The Panel finds that proving this allegation comes down toan assessment of credibility.

142.We find the testimony of Chief Rodd to be more crediblethan that of Mayor Bennett.


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143.As stated above Mayor Bennett directly contradicted hisown evidence on this issue.

144.Chief Rodds testimony was logical and corroborated by the

documentary evidence and by the testimony of severalother witnesses. He withstood cross-examination andrecalled everything he spoke of clearly, consistently andconvincingly. We find his testimony to be reliable anddependable and on a balance of probabilities likely to betruthful.

145.Chief Rodds testimony was corroborated by Ms. Martin,who as discussed below we found to be a highly crediblewitness.

146.Furthermore, when assessed against the facts, MayorBennetts assertion that his conversations with the Chiefand Mr. Armstrong, were merely informal conversationscannot be accepted. Mayor Bennett cannot divorce his roleas both the Mayor and a Board member, from the contentsof his conversations on the highly contentious budget issueor from the roles of the people he is having thoseconversations with.

147.On the face of it, it is clear that these were conversationswhere about different budget scenarios/compromises. Thatis a negotiation. He had two of those conversations directlywith the Chief and one indirectly with the Chief through Mr.Armstrong.

148.Therefore, we find that on a balance of probabilities MayorBennett attempted to negotiate directly with the Chief

about the Service budget for 2012. This is supported by theclear, cogent and convincing evidence of Chief Rodd.

Allegation #4: Mayor Bennett publicly expressed disagreementwith a decision by Chief Murray Rodd to create and hire for theposition of Police Service Communications Coordinator, whichdecision was supported by the Board;


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149.The fourth allegation (Allegation #4) relates to commentsthat Mayor Bennett is said to have made in local mediaabout his dissatisfaction with the hiring of a Police Services

Communications Coordinator.

150.On April 12, 2011, during his annual performance reviewby the Board, Chief Murray Rodd stated that one of theorganization's goals was to hire a professional withcommunications skills/experience to handle mediarelations.

151.Chief Rodd noted that this position would enhance public

communications for the organization and stated that hiringa civilian would reduce costs.

152.The Commission asserts that Mayor Bennett, who waspresent at this Board meeting, did not oppose Chief Rodd'ssuggestion. This is confirmed in the minutes of the April 12,2011 Board meeting minutes in Commission Counsels bookat Tab 26.

153.Chief Rodd subsequently hired a skilled professional to fillthis position. He testified that this has resulted in costsavings and that the contribution of the person hired in thisposition has beentremendous.

154.On December 7, 2011, Mayor Bennett was quoted in localmedia stating that he disagreed with the creation of amedia relations role. At Tab 114.8 of Commission Counselsbook there is an audio-visual recording of this interviewwith CHEX TV.

155.Mayor Bennett is quoted saying, they put their money intospinning it and that offends me Weve been requested tobolster the force to assist with all these heinous crimesgoing on in the city and here we are hiring acommunications officer or a communications person. If


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that doesnt send a message to the city, I don`t know whatwill.

156.This interview was played at the hearing and Mayor

Bennett was questioned about it. He confirmed that hemade this statement. He testified that he did not thinkthese comments would hurt the Service and he gave anincomprehensible explanation of why he used the word

spin in his statements to the press.

157.Mayor Bennett commented that he thought it was anunnecessary expenditure to hire someone for this role.

158.

Ms. Martin who was the Chair of the Board at the time thatthese events took place testified that Mayor Bennett didnot raise any objections at the Chiefs performance reviewor ever at a Board meeting.

159.Ms. Martin stated that this was an operational policeservices matter and that it was the Chiefs decision to makeand not the Boards. This is supported by the Act.

160.

Section 31(3) and (4) of the Act delineate the reportingframework:

(3) The board may give orders and directions to thechief of police, but not to other members of thepolice force, and no individual member of theboard shall give orders or directions to anymember of the police force.

(4) The board shall not direct the chief of police with

respect to specific operational decisions or withrespect to the day-to-day operation of the policeforce.

161.Ms. Martin testified that if any Board member had an issuewith this they should have brought it up in the in-camera


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portion of a Board meeting because it is a confidentialmatter relating to a personnel issue. She testified that theChief does not spin things; the Chief provides publicinformation to the community.

162.We find Ms. Martin to be a credible witness. She is nolonger a member of the Board and has nothing to gainfrom these proceedings. In the past, she supported MayorBennetts campaign for mayor, and there is no evidencethat she is biased against the Mayor. Ms. Martin providedtestimony in a measured and thoughtful manner. When shewas unsure of the answers to a question, she did notanswer it, and she provided evidence that was consistent

throughout her testimony.

163.We have reviewed the media interview with Mayor Bennettand find that he did express public disagreement with theChief`s decision to hire a Communications Coordinator forthe Service.

164.We find that Allegation #4 has been proven on a balance ofprobabilities.

Allegation #5: Mayor Bennett authored and sent a letter to theMinister of Community Safety and Correctional Services (the

Minister) advocating that Board Chair Nancy Martins term notbe extended after the Board had voted down his motion not tosupport her term being extended;

165.The fifth allegation (Allegation #5) relates to a motionmade by Mayor Bennett during the February 14, 2012,Board meeting, to not reappoint Chair Nancy Martin to the

Board. Mayor Bennett is said to be the only person whovoted in favour of the motion - consequently, the motionwas defeated.


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166.Niquel Pritchard Pataki verified in her testimony that MayorBennett was the only one who voted in favour of hismotion.

167.

Mr. Lightbody testified that he voted against the motion.Ms. Martin testified that she did not vote in favour of it andMayor Mary Smith confirmed that she did not vote to passthat motion either.

168.It is alleged that, on February 15, 2012, Mayor Bennettthen sent a letter to the Minister which stated that NancyMartin should not be reappointed to the Board.

169.

This letter was sent on city letterhead but stated that hewas providing his opinion "as a member of the board".

170.The letter from Mayor Bennett to the Minister is located atTab 37 of Commission Counsels book. The letter states:

While I fully respect the right of your Ministry to grantsuch an extension, I want to suggest to you, as amember of the Board, that a decision to grant an

extension of [Ms. Martins] term would cause significantgovernance difficulties for the Board.

I would urge you to consider rejecting the request for aterm extension for the Chair, and taking the necessarysteps instead to appoint a new member of the Board. Ihave made this position known to the Board, andadvised them that I would be communicating myconcern to you.

171.Mayor Bennett testified that he told the Board that hewould be sending a letter to the Minister requesting thatshe not re-appoint Nancy Martin to the Board.

172.No other members of the Board who testified recall beingtold by Mayor Bennett that he would be sending a letterabout this issue to the Minister.


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the extension of the appointment of the Chair until suchtime as these matters are resolved.

180.The letter from Mayor Bennett to the Minister alleges that

Ms. Martin used her position as Chair of the Board to makeunilateral and unsupported decisions.

181.Whether the allegations made by Mayor Bennett againstMs. Martin are true or not, they are not relevant for thepurposes of making a finding on this allegation. The onlyrelevant evidence relates to whether Mayor Bennett sent aletter to the Minister alleging that Ms. Martin was guilty ofmisconduct. The other relevant evidence relates to whether

he brought this issue to the attention of the Board for thepurposes of having it dealt with.

182.Mayor Bennett testified that he wrote the letter and sent itto the Minister. He also testified that he did not bring theconcerns expressed in the letter to the Board for resolution.He confirmed that he wrote this letter while he was on theBoard and while he was mayor of Peterborough. The lettertendered as evidence was on city of Peterborough

letterhead.

183.We find that Allegation #6 is proven on a balance ofprobabilities and is substantiated by clear, cogent andconvincing evidence.

Allegation #7: Mayor Bennett authored and sent a letter to theMinister alleging unsupported allegations of misconduct againstBoard Chair Nancy Martin;

184.The seventh allegation also relates to Mayor Bennett's April12, 2012 letter to the Minister.

185.The letter is said to have contained unsupported allegationsquestioning the Chair's propriety, the use of her authority


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191.There was no evidence before this Panel that MayorBennett ever brought these allegations against Ms. Martinto the Board for discussion or for any kind of resolution.

192.

Mayor Bennett testified that he sent this letter. There wereno other Board members aware of this letter or theallegations contained therein and he was not authorized bythe Board to send this letter. Therefore there was nosupport for the allegations made in the letter.

193.When asked why he didnt tell the Board about this letter,he testified that he didnt feel the need to tell them aboutit.

194.We find that Allegation #7 is substantiated and proven on abalance of probabilities.

Allegation #8: He publicly condemned the Commissionsinvestigative process, describing it as a farce and anti-democratic, and he compared the Commissions investigativepowers to those which existed in pre-war Germany;

195.

The Mayor is alleged to have made offensive and incorrectremarks about the Commission and its investigativeprocess in the local media.

196.On September 20, 2012, the Mayor released a mediastatement on the City of Peterborough letterhead outlininghis belief that the Commission had not provided him withdisclosure of "particulars of any alleged conduct whichwould invite the initiation of such an investigation".

197.He also stated that he had not been contacted by theCommission to provide a response to the allegations and hehad not received "any communication as it would relate toa potential or possible Hearing".


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202.He also made the following comments:

It's very disheartening, quite frankly...we're not livingin pre-war Germany. We're living in 2012 in the city of

Peterborough...Ontario, Canada, and you'd like to thinkthat we've grown considerably since the pre-war daysbut it certainly smacks of difficulties...I can tell you atthe end of the day I'll be as guilty as sin because Ispoke my mind. That's what I've done in myestimation. I've not done anything beyond thenormalcy that flows from wearing the two hats, themayor of the city of Peterborough and a member of thepolice services board and it's very, it's a tough

balancing act but I err on the side of beingrepresentative of the constituents within thiscommunity who elected me, not the people whoassume because I'm appointed that I'll fall on that sideof the tracks. So I'll continue to represent the folkswho elected me.

203.On December 17, 2012, Mayor Bennett was quoted in thePeterborough Examiner as labeling the amount of time the

Commission was taking to bring the matter to a resolutionan "abuse of authority".

204.On September 4, 2013, Mayor Bennett was quoted ascommenting on the Commissions ability to direct electedofficials as saying, "I find it repulsive, actually."(emphasis added)

205.Following this Mayor Bennett stated on CHEX TV

Newswatch:

They finally decided they should have a hearing, butthey didn't bother to tell us what the date would be soof course Richard Taylor who I have representing meisn't available on the date that they chose. They didn'tbother to check with him first, which is not


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very...doesn't show much courtesy on their behalf. Wehave some jurisdictional issues with how they'veapproached where they've gotten to at this point andwe still have not got any back up information to what

the nine points that they've raised that they seem tofeel are in violation of something. Okay, I see whatyou're asking but tell me what the violation is. I hurtsomebody's feelings perhaps?

206.On February 4, 2013, Mayor Bennett released anothermedia statement on City of Peterborough letterhead. Themedia release reads, in part, as follows:

My belief that the procedures of the Commissionflout the democratic process remains intact.

I believe that these causes fail to properlydistinguish and recognize my responsibilities asMayor. I do not accept that my status as amember of the Police Services Board shouldprohibit me from speaking on certain policing orbudgetary matters as Mayor. I head a Council that

is responsible for the expenditure of taxpayerdollars on the police service, and I take thatresponsibility seriously.

I also believe that some of these causes overstepwhat should be the proper jurisdiction of theCommission. It is inappropriate in my view, toattempt to undermine or chill the right to the freeexpression of views by elected officials, and

particularly those views having to do with thepowers and procedures of an appointedCommission. It is surely inappropriate that aninvestigative body, having refused to provideinformation to the accused on the nature of anaccusation, should then view criticism of itsprocedures as a form of punishable misconduct.


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207.On February 7, 2013, Peterborough this Week published aletter written by Mayor Bennett in which he wrote:

In the matter of the proposed hearing by the

Ontario Civilian Police Commission into my conduct,(Our Opinion, Feb 6, 2013), you are right tosuggest that "until the inquiry delves into theinvestigation, the public won't know how muchtruth there is to the allegations". A lack of publicknowledge has been a sorry feature of this matterfor many months. The reasons for the hearing arestated by the Commission in terms so brief andcurt that they do a disservice to the practice of

public disclosure; and they were presented withoutthe benefit of any substantiating documentation oreven an investigator's report. The only reason theywere made public is because I chose to releasethem.

208.All of the statements above are found in CommissionCounsels book. There was no evidence provided by MayorBennett that he did not make these statements or that the

reports are untrue.

209.We find that Allegation #8 is proven on a balance ofprobabilities and supported by clear, cogent and convincingevidence.

Allegation #9: Mayor Bennett refused to be interviewed by theCommission during its investigation of this matter.

210.

The Commission alleges that between the dates ofSeptember 20, 2012, and December 2012, Mayor Bennettwas asked a number of times to participate in interviewsrelated to the investigation.

211.According to the Commission, correspondence was sentfrom the Commission to Mayor Bennett on nine occasions.


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decide whether to proceed to a public inquiry. TheCommission would prefer to have the Mayorsinformation prior to deciding whether to proceed toa public inquiry into his conduct as is described

generally in the Terms of Reference. If theCommission does decide to proceed to a publicinquiry, at the appropriate time it will provide fulldisclosure.

In addition, as a Member of the Board who issubject to the provisions of the Police Services Actand the Members of Police Services Boards - Codeof Conduct, O.Reg. 421/97, Mayor Bennett should

make himself available to be interviewed by theCommissions investigators.

218.According to Mr. Korol's testimony, Mayor Bennett did notattend an interview by the deadline of December 7, 2012.He had also not attended an interview by the time thehearing had commenced.

219.We find that Allegation #9 has been proven on a balance of

probabilities and is supported by clear, cogent andcompelling evidence.

Allegation #10: On receiving an email from the Board about aconfidential meeting, Mayor Bennett shared the email thread withmembers of City Council.

220.The tenth allegation (Allegation #10) relates to an emailthat was sent to Mayor Bennett by Niquel Pritchard Pataki

on May 22, 2012, advising Mayor Bennett that he was notentitled to attend an upcoming Special In-Camera meetingof the Board. This email can be found at Tab 47 ofCommission Counsels book of documents.

221.Since this was a confidential matter, Ms. Pataki's emailincluded a confidentiality clause, which stated that the


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email was "...directed in confidence to the person namedabove and may not be otherwise distributed, copied ordisclosed." The purpose of the Special In-Camera meetingwas to discuss Mayor Bennett's conduct.

222.On the same day, Mayor Bennett sent an email to Ms.Pataki telling her that she had violated procedures and that48 hours notice was required to call a special meeting.(Tab 48 of Commission Counselsbook)

223.On May 23, 2013, Mayor Bennett emailed Ms. Pataki,copying Board members, asking for "...a copy of all theinformation for discussion at today's meeting". (Tab 49 of

Commission Counselsbook)

224.Mayor Bennett sent another email to Ms. Pataki on May 25,2014, asking for a reply for the information he requested inhis earlier email. In that email, he stated, "There is a timeto graciously accept the will of council and this is it." (Tab50 of Commission Counselsbook)

225.On the same day, Ms. Pataki replied to Mayor Bennett's

email and advised him that the Board was waiting for legaladvice and would respond to him once they had received it.(Tab 50 of Commission Counselsbook)

226.Mayor Bennett responded to Ms. Pataki on May 25, 2012,copying the Board and all City Council members. This madepublic to the City Council members confidential informationabout the special in-camera meeting and Mayor Bennettsrequest for the agenda and reports for this meeting. (Tab

54 of Commission Counselsbook)

227.The Commission alleges that the email exchange betweenMs. Pataki and Mayor Bennett regarding the meeting wasincluded in the email and the confidentiality clause hadbeen removed.


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228.Mayor Bennett made several statements about why he cutout the confidentiality clause from Ms. Patakis email, thelast being that he did not think that the confidentialityclause was pertinent information. These statements

demonstrate that he did indeed remove the confidentialityclause from Ms. Patakis correspondence.

229.It is clear from the documentary evidence that MayorBennett shared the confidential Board email with membersof City Council. We find that Allegation #10 has beenproven on a balance of probabilities.

Allegation #11: Mayor Bennett made a number of disparagingand/or disrespectful remarks regarding the Chief, the police andthe Board.

230.The final allegation (Allegation #11) against MayorBennett is that he made several disparaging and/ordisrespectful remarks regarding the Chief, the Police, theBoard and the Commission.

231.At a public meeting where the media were present, MayorBennett made comments that the Chief submitted a reportthat was unprofessional and that the Chief acted

unprofessionally. The Mayor acknowledged in histestimony that he made these comments. In his testimonyMayor Bennett did not retract those comments and hemaintained his belief that his comments were appropriate.He testified that he did not think his comments wouldimpact the community negatively.

232.Mayor Bennett accused the Board of keeping a secret fileabout him in public. This has been repeated in severalnews articles. This was written about in an article by thePeterborough Examiner entitled Mayor Daryl Bennett notallowed to attend two police board meetings, dated April25, 2014. (Exhibit 69 of Commission Counselsbook)


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233.The article goes on to quote Mayor Bennett who statedthat:

Its become very personal from my stand-point It is

very troubling that the board has adopted a practice ofmaintaining secret files on those with whom itdisagrees...I am hopeful that board members will dothe right thing and, like all other public agencies focustheir energies on serving people rather than attackingthem.

234.The Mayor often publicly accused the Board of beingsecretive. On October 10, 2012 in a Peterborough

Examiner article about the police budgeting process, MayorBennett was quoted as saying Why are we having budgetdiscussions in closed sessions...whats so secretive? Thisarticle can be found at Tab 102 of Commission Counsel sbook.

235.Mayor Bennett spoke to media outlets and City Council onseveral occasions about the Chiefs salary. At a publicmeeting of City Council where the police budget was being

discussed, Mayor Bennett stated that it was anembarrassment that the Chief was on the sunshine list.(Tab 114.13 of Commission Counselsbook)

236.Mayor Bennett publicly accused the Chief of putting theworst possible light on crime statistics, see thePeterborough Examiner article entitled Police SlantingCrime Stats for Budget Request: Mayor. (Tab 82 ofCommission Counselsbook)

237.Mayor Bennett focused his talk to the Peterborough RotaryClub, on January 9, 2012, on policing. Mayor Bennett tookthe opportunity to suggest that the Chief and the Boardwere trying to get an increased Service budget by fearmongering. (Transcript of speech at Tab 82of CommissionCounselsbook)


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238.This speech was quoted in several media outlets. (Tabs 84-89 of Commission Counselsbook)

239.Mayor Bennett testified that he believed that the Chief was

bartering in fear to get an increase in the Service budget.He testified that he believed that the public had the right tothis information.

240.On numerous occasions Mayor Bennett spoke publiclyabout his negative view of the Boards decision to holdsome meetings privately. In one radio interview he stated:

I am extremely disappointed that we couldnt come to

some arrangement to allow this to occur in public. Asyou know the city tries to conduct most of its business,unless its of a touchy nature in public and certainly thePolice Services Board is compelled to act under thesame rules and regulations. (Tab 114.16 of CommissionCounsels book)

241.Mayor Bennett has stated in public that he believes that theAct is archaic. He was quoted in the Sun News stating

Well see if we cant promote some positive changes to apiece of legislation that I think is archaic. (Exhibit 40)

242.The Panel also relies on all the statements already stated inAllegation #8.

243.Based on the statements evidenced above, a review of allof the documentary evidence and testimony we find thatAllegation #11 is proven on a balance of probabilities,

substantiated by clear, cogent and convincing evidence.

Does the Conduct of Mayor Bennett Result in Breaches ofthe Code of Conduct

244.All of the allegations against Mayor Bennett have beenproven. The Panel will now determine whether that conduct


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results in a breach of s. 2, 5, 6, 8 and/or 13 of the Code ofConduct?

245.In this section we will review the five enumerated sections

of the Code of Conduct and examine Mayor Bennettsconduct against those provisions for PSB membersbehaviour.

246.There is little jurisprudence on the subject of the Code ofConduct. There is some limited case law however, that hashelped the Panel to ascertain whether there has been abreach. We begin our analysis by providing some of therelevant principles from these decisions that provide

guidance.

247.PSBs in Ontario are creatures of statute. PSBs lay thefoundation for civilian oversight of policing and are acornerstone of ensuring police are accountable to the publicand to the communities they serve.

248. A Hearing Under Section 25 of the Police Services Act intothe Conduct and Performance of Duties of the Members of

the Wallaceburg Police Services Board (June 19, 1996,OCCPS), herein calledWallaceburg, was a very significantCommission decision on PSB member conduct. Itunderscored the fundamental importance of thediscernment required of PSB members. At page 25 theCommission states:

We can sympathize with the great difficulty, frustrationand even anguish that may arise in dealing with serious

financial constraints. However, this can never be anexcuse for lawless behaviour. Rather, it calls for carefulthought, a proper understanding of the law, creativity,cooperative effort, a willingness to accept advice andthe highest levels of honesty and integrity. As hard asthis may be in some situations, the safety of the publiccalls for no less. [emphasis added]


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249.Wallaceburg supra, provides important guidance to all PSBmembers across the Province. All of the board members inWallaceburg, supra, were removed from the board by theCommission because they failed to follow the provisions of

the Act and because they conducted board business in aparticularly aggressive and confrontational manner.

250.The above principles are given further expression in theCode of Conduct for PSB members.

251.In a case involving a statement by a board member to themedia, Ontario Civilian Commission on Police Services andArnold Minors (December 19, 1994, OCCPS) hereinafter

Minors, the Commission held that:

In the Commissions opinion, it was hard pressed toimagine any situation where a member of a board couldbe asked to comment to the media on a policing relatedmatter and divorce the comments made from his or herrole as a member of a police services board. Membersof police services boards, as is the case with all otherpersons in highly visible positions of power and

authority, must be mindful of the possible unintendedconsequences and effects of their words and actions.Commenting on sensitive and serious issues requiresgreat care, thought, sensitivity and tact and the use ofappropriate words and images. (emphasis added)

252.Mayor Bennett often distanced himself from the Board. Hepositioned himself in his statements and conduct as if hewere not a member of the Board, but rather an outsider

observing a dysfunctional system that he wouldaggressively critique.

253.There are many things wrong with that position. The firstand the most obvious being that he is not a marginalizedperson looking into a system. He holds one of the mostpowerful positions in that system.


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policing. Clearly if the mayor publicly attacks the Chief forthis initiative, this will interfere with the desired outcome ofsuch operational decisions.

264.

What the Panel finds most notable in this situation is thatMayor Bennett was at a Board meeting where the hiring ofa civilian with specific skills for the role of CommunicationsCoordinator was discussed. He raised no objection to thishiring at the Board meeting where it would have beenappropriate to raise questions to the Chief and voice anyalternative viewpoints if necessary. Mayor Bennett did notdo this.

265.

This is of particular note because this was a chronic issuewith the Mayors conduct on the Board. On severaloccasions that are evidenced in the record, Mayor Bennettwould not voice any concerns at Board meetings. In someinstances, he would vote in favor of actions that he wouldlater publicly criticize the Chief or the Board forundertaking.

266.Mayor Bennett would attend these meetings with his

colleagues where he did not make his opinions heard andlater he would deliberately voice dissent about the Chiefsdecision to various media outlets.

267.Not only did the Mayor voice his disdain for this decisionbut he went further and made declarations about theChiefs and the Services intent to spin statistics on crime.

268.There is much other evidence that demonstrates that

Mayor Bennett interfered directly or indirectly with theChiefs operational duties, including:

-The Mayor made critical comments to the media andto City Council regarding the salary of the Chief ofpolice. He did not raise his objections about this atBoard meetings. Mayor Bennetts statements in public


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were that he believed the Chiefs salary was too high.The Chiefs salary is an operational budget issue.

-Mayor Bennett has made several public allegations

that the Chief has acted unprofessionally and withnegative intent. The Chief is an employee of the Board.It is inappropriate for an employer to publicly expressnegative opinions of an employee.

-Mayor Bennett alleged that the Chief and the Servicewere manipulating crime statistics to get more moneyfrom City Council. In his Rotary Club address, MayorBennett stated We dont barter in fear. Its not the

Canadian way. And its not the Peterborough way. Whythen is it acceptable for the Police to send the messagethat they must have everything they are asking for orpeoples safety will be put into jeopardy? Having thefunding to ensure public safety is a key operationalduty of the Chief, to question this in public is toundermine the Chiefs operational functionality.

269.This behaviour is unacceptable. This kind of conduct does

not inspire the confidence of Board members, the Serviceor the public. Indeed these actions quite specifically go toundermine the publics confidence in the Board, the Serviceand in this case most notably the Chief.

270.We find that Mayor Bennett does not agree with hisresponsibilities and obligations as a Board member. MayorBennett believes he should be able to say whatever hewants, whenever he wants and to whomever he wants.

271.He does not understand the expectations of Boardmembers as specified by the Act. As was held inWallaceburg, supra, Board members must have a properunderstanding of the law. Section 31 (4) of the Actspecifically states:


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The board shall not direct the chief of police withrespect to specific operational decisions or with respectto the day-to-day operation of the police force

272.

Accordingly, we find that Mayor Bennett has breached s. 2of the Code of Conduct.

Section 5 OF THE CODE OF CONDUCT

273.Section 5 of the Code of Conduct States:

No board member shall purport to speak on behalf ofthe board unless he or she is authorized by the board

to do so.

274.As evidenced in Allegations #5, 6 and 7, Mayor Bennettpurported to speak on behalf of the Board.

275.Mayor Bennett wrote a letter to the Minister advocatingthat the term of Board Chair Nancy Martin not beextended. In this first letter, he states that he wasproviding this opinion as a member of the Board. He

followed up this letter with two subsequent letters makingallegations that Ms. Martin had made unilateral decisionsand that she held meetings in closed sessions that shouldhave been held in public.

276.He did not author these letters with the support or consentof the Board. The Board had actually voted down hismotion suggesting Ms. Martins term not be extended. Therest of the Board was in favor of Ms. Martins term being

extended.

277.The conduct evidenced in Allegations #5, 6 and 7demonstrate that Mayor Bennett did not respect thedecisions of the Board collective. He leveraged his role asa member of the Board to try and get a result that the


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rest of the Board disagreed with and had specifically votedagainst.

278.Mayor Bennett went behind the interests of his colleagues

on the Board, he made false statements that the rest of theBoard was apprised of his contact to the Minister and thenhe made allegations against the Chair of the Board thatwere completely unsubstantiated by factual evidence.

279.This conduct is not worthy of that of a Board member. TheBoard has an official Ethical Framework that is providedto all Board members as part of their training package.(Exhibit 68)

280.The framework has a section on how Board members areexpected to interact with their professional partners. Itstates:

Responsibilities of the PLPSB members toward others inthe policing profession, their fellow board members andothers engaged in services relating to the policingprofession include:

-Building value based relationships-Sharing knowledge-Upholding the public trust-Being accountable-Consulting effectively

281.Mayor Bennett clearly spoke on behalf of the Board in theseletters, without their authorization to do so. As shown by

the framework, this conduct is a serious breach of allexpectations of a Board member not only of the Code ofConduct. Most notable is the Mayors false statements onthis issue to the Minister and those made in testimony.

282.Accordingly we find that Mayor Bennett breached Section 5of the Code of Conduct.


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283.Section 6 of the Code of Conduct States:

A board member who expresses disagreement with adecision of the board shall make it clear that he or sheis expressing a personal opinion

284.The Section of the Code of Conduct specifically provides forthe possibility that a member may wish to expressdisagreement with a Board decision and to that end clearlyrespects the freedom of expression guarantee entrenchedin the Charter.

285.However, as the Code, of Conduct points out, when voicingdisagreements with a board decision, a member mustensure that it is clear that the opinion expressed is onlypersonally held.

286.In paragraph 41 of his affidavit at Exhibit 79, MayorBennett states:

I have made a specific objective that I provide anindication that where I am expressing disagreementwith a decision of the Peterborough Lakefield PoliceServices Board, then the foregoing is undertaken as anexpression of my personal opinion as Mayor of the Cityof Peterborough.

287.We find however that the Mayor did not clearly provide thathe was expressing a personal opinion when discussing

Board matters in public.

288.There is no evidence before us that Mayor Bennettprefaced any of his many statements about policing with

this is strictly my personal opinion or words to that effect.


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289.Minutes from the Board Meeting on June 20th, 2011(Exhibit 20) demonstrate that Mayor Bennett not onlyvoted in favor of the proposed 2012 Service budget, butthat he Seconded the motion in favor of the Board

approving that budget.

290.There is an indication in those minutes that Mayor Bennettcautioned that there would be push back from council.But the minutes do not indicate anything that would reflectMayor Bennetts own personal disagreement with theBudget. We find that when he seconded the motion toapprove the Budget, it is an indication that he supports theapproval of the budget.

291.Mayor Bennett contradicted his express approval of thebudget at the Board by making public statements that hedid not approve of the proposed Service budget.

292.There are many media reports contained in the exhibitsthat express Mayor Bennetts disagreement with theproposed 2012 Service Budget. There is also the lengthyspeech Mayor Bennett presented to the Rotary Club. We

cannot find any account where the mayor states he is onlyexpressing his personal opinion.

293.Given that Mayor Bennett did not expressly state that hewas voicing his personal opinion about policing issues, wehave no evidence before us that would counteract a findingof breach on this section of the Code of Conduct.

294.The Commission has held that when a board member

publicly expresses an opinion about policing, it will be closeto impossible to sever his/her identity from his role as aBoard member, see Minors, supra.

295.Accordingly we find that Mayor Bennett has breachedSection 6 of the Code of Conduct.


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296.Section 8 of the Code of Conduct states:

Board members shall uphold the letter and spirit of theCode of Conduct set out in this Regulation and shalldischarge their duties in a manner that will inspirepublic confidence in the abilities and integrity of theboard.

297.We find that Allegations 1 to 11 in totality provide evidencethat Mayor Bennett has not upheld the spirit of the Code ofConduct, or discharged his duties in a manner that would

inspire public confidence in the ability and integrity of theBoard.

298.As stated in the introduction of the Act, this decision andnumerous decisions by the Commission, the purpose of theAct is to increase public confidence in the provision ofpolice services: see Browne, supra.

299. To demonstrate that Mayor Bennett has undermined

public confidence in the ability and integrity of the Board,we discuss the conduct evidenced in the allegations withrespect to three specific categories which are:

1) public commentary2) approach to the role of a PSB member; and3) not participating in the Commissions process.

PUBLIC COMMENTARY

300.Board members are entitl