Court dismisses request for judicial review in case of Windsor police officer who made convoy donation

An Ontario court has upheld a decision made by the Ontario Civilian Police Commission in the case of a Windsor officer who was found guilty of discreditable conduct over a $50 donation to convoy protesters in 2022.

In May 2023, after a six-day hearing, a Windsor Police Service (WPS) hearing officer ordered Const. Michael Brisco to forfeit 80 hours of pay as a penalty for his donation to the protest against pandemic mandates.

The donation was made on Feb. 8, 2022, the day after protesters began blocking access to Windsor's Ambassador Bridge.

Brisco's name was found in a database of donors made public after the crowdfunding website GiveSendGo was hacked.

Brisco appealed to the commission, challenging the finding of discreditable conduct and saying the hearing officer failed to apply a standard of "clear and convincing evidence" in arriving at the finding. The commission dismissed Brisco's appeal.

Brisco subsequently sought judicial review of the commission's decision. In his request, Brisco raised four submissions in this court:

• The WPS did not meet its burden of demonstrating on clear and convincing evidence that the Freedom Convoy protests were "illegal", as described in the notice of hearing, at the time of  his donation.
• The Commission unreasonably concluded the limitation on his freedom of expression under the Charter was proportionate.
• The commission erred in failing to address his abuse of process argument.
• The commission erred in failing to recognize and consider the s. 2(c) Charter value of freedom of peaceful assembly.

In a ruling on Wednesday, the Ontario Superior Court of Justice dismissed Brisco's application.

Justice J. O'Brien said the commission did not err in accepting the hearing officer's finding that the protests were "illegal", as described in the notice of hearing. 

"Because Mr. Brisco's challenge to the commission's Charter s. 2(b) balancing rested on his argument that the protests were not 'illegal,' the second ground of review also fails," O'Brien wrote in the ruling.

"I further conclude the commission's decision not to hear the abuse of process argument for the first time on appeal was reasonable. Finally, the commission was not required to consider the Charter value of freedom of assembly."