A Windsor police officer has lost a second appeal of a discreditable conduct conviction for his Freedom Convoy donation.
Const. Michael Brisco is facing a penalty of working 80 hours without pay for donating $50 in February 2022.
His lawyer – funded by the Justice Centre for Constitutional Freedoms (JCCF) – wanted Ontario’s divisional court to overturn a failed appeal to the Ontario Civilian Police Commission (OCPC).
The OCPC was asked to overturn the conviction of discreditable conduct laid after a six-day hearing in May 2023.
The background
At the time of the donation, Brisco was off work because he would not comply with the COVID-19 vaccination policy of the Windsor Police Service (WPS).
Brisco wanted his donation to support the protestors in Ottawa, not the blockade of the Ambassador Bridge which were happening simultaneously.
His donation only came to light after an online crowd-funding site was hacked and the details released to WPS and the Ontario Provincial Police.
The Police Act hearing officer ruled Brisco’s donation amounted to discreditable conduct because it happened at a time when his fellow officers were over-worked in maintaining security at the border and outnumbered in trying to convince the protestors to clear the bridge.
OCPC ruling
The OCPC found no errors in the hearing officers’ decision.
The commission accepted that the protests were illegal at the time of the donation and dismissed Brisco’s arguments that it was based on media reports.
It also declined to consider Brisco’s argument that it was an abuse of process because the issue was not raised in the initial PSB hearing in Windsor.
Finally, the commission ruled Brisco’s rights to freedom of expression was outweighed by the public interest in enforcing the Police Services Act.
Divisional court appeal
A JCCF lawyer argued WPS did not prove the Ottawa protest was illegal, and the commission shouldn’t have limited Brisco’s right to freedom of expression.
They further argued the commission made a mistake in not considering Brisco’s right to peaceful assembly and his abuse of process argument.
The divisional court ruled against all their arguments.
On legality of the protests, the judge ruled Brisco couldn’t prove the protest was legal and, he also relied on media reporting to defend his side of the argument.
The judges also sided with the commission that if the protests were illegal, then the disciplinary hearing was not an abuse of process.
In terms of charter rights, the judges ruled against Brisco because he never made those arguments during the initial hearing and Brisco wasn’t actual present at the protests his rights to peaceful assembly were never breached.
Penalty status
When Brisco launched his second appeal, WPS confirmed he had yet to forfeit the 80 hours.
CTV News has reached out for an update, now that the appeal was defeated.
“We in communications are awaiting a decision on whether there will be an appeal in the Brisco case,” JCCF spokesperson Kevin Steel told CTV News Monday.
