Police officer challenges harsh discipline in free speech case

From the Justice Centre for Constitutional Freedoms

The Justice Centre announces that the Ontario Civilian Police Commission will hear the appeal of Constable Michael Brisco today, who is challenging his conviction and penalty for donating to the Ottawa Freedom Convoy in early 2022. This case raises questions about the Charter’s protection for freedom of expression, the right of police officers to support political causes while off duty, and the privacy rights of all Canadians.

Constable Michael Brisco of the Windsor Police Service is a highly trained and respected police officer with no prior disciplinary record. He made a $50 donation to the peaceful Freedom Convoy protest through the GiveSendGo fundraising platform on February 8, 2022 – one day after an Ontario Superior Court Judge held that people could continue to engage in “peaceful, lawful and safe protest” in Ottawa so long as honking ceased. When making his donation, Constable Brisco did not identify himself as a police officer and did not contribute to the protest in his capacity as a police officer.

Days later, the GiveSendGo donor list was hacked. The Ontario Provincial Police Service acquired the list and forwarded a set of names to the Windsor Police Service, who discovered that Constable Brisco had donated to the protest.

The Windsor Police Service then chose to charge Constable Brisco for “discreditable conduct.”

After a six-day hearing before an Ontario Provincial Police Adjudicator, Constable Brisco was found guilty of discreditable conduct by a Tribunal on March 24, 2023. Two months later, on May 18, 2023, the Tribunal ordered that Constable Brisco should forfeit pay for 80 hours of work as a penalty.

With the support of the Justice Centre, on June 14, 2023, Constable Brisco filed a Notice of Appeal with Ontario Civilian Police Commission, challenging his conviction and the imposed penalty.

Counsel for Constable Brisco argue that the prosecution against him lacks sufficient evidence. The claim that the Freedom Convoy in Ottawa was an unlawful protest rested entirely on claims made in newspaper articles by various officials, including the Prime Minister and the Premier of Ontario. No credible video, photographic, or other evidence on this point was filed against Constable Brisco. Further, counsel for Constable Brisco argue that the evidence against him – a hacked list that ought to have remained private and confidential – was obtained illegally. Counting the donor list as evidence against Constable Brisco amounts to an abuse of process, counsel argue.

Brisco’s legal counsel further argue that his conviction and penalty rested on a claim that Mr. Brisco’s donation was a demonstration of support for the Ambassador Bridge blockade in Windsor, Ontario; Mr. Brisco argues that there is no evidence of a link between the Ottawa protest and the Windsor blockade, and he denied any support for the blockade during his hearing.

Finally, Constable Brisco argues that the Tribunal’s decisions to convict and discipline him fail to acknowledge or proportionately balance their impact on his Charter-protected right to freedom of expression. While a police officer’s right to free expression is limited during the performance of their duties as officers, Constable Brisco did not donate to the Freedom Convoy in his capacity as a police officer. He also expected the donation to be confidential, and he did not seek to advertise his giving. The expression of off-duty police officers is protected by the Charter to the same degree as the expression of any other citizen.

Darren Leung, one of the lawyers for Constable Brisco, stated, “Freedom of expression is a right that is guaranteed to all Canadians. Police officers are also entitled to express their political beliefs, so long as they do it without identifying themselves as police. Furthermore, it is an injustice that Constable Brisco was investigated on the basis of illegally obtained information. Instead of investigating who was responsible for the hack, the Windsor Police Service have dedicated their resources in prosecuting Constable Brisco.”

“Every Canadian, including police and also including doctors, nurses, teachers and other regulated professionals, has a right to donate to the cause of her or his choice, and to do so privately and confidentially. No Canadian should face disciplinary proceedings at the hands of her or his professional association for expressing support for a cause or movement,” stated John Carpay, President of the Justice Centre.

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