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TORONTO (Justice Center for Constitutional Freedom) — The Ontario Civilian Police Commission heard the appeal of Constable Michael Brisco on Tuesday, 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, Brisco did not identify himself as a police officer and did not contribute to the protest in his capacity as a police officer.
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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 Brisco had donated to the protest.
The Windsor Police Service then chose to charge Brisco for “discreditable conduct.”
After a six-day hearing before an Ontario Provincial Police Adjudicator, 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 Brisco should forfeit pay for 80 hours of work as a penalty.
With the support of the Justice Centre, on June 14, 2023, Brisco filed a Notice of Appeal with Ontario Civilian Police Commission, challenging his conviction and the imposed penalty.
Counsel for Brisco argued 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 Brisco. Further, counsel for Brisco argued 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 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 Brisco’s donation was a demonstration of support for the Ambassador Bridge blockade in Windsor, Ontario; 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, 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, 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.
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Darren Leung, one of the lawyers for 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.
Reprinted with permission from the Justice Center for Constitutional Freedom.
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