TORONTO - The latest round in Ontario Provincial Police Commissioner Julian Fantino's fight to have an adjudicator removed from a disciplinary hearing goes before the courts Monday amid fresh allegations that the province's top cop abused his power and acted unlawfully.
The new allegations, contained in filings with the Ontario Court of Appeal, stem from a criminal probe into a police officer who was a defence witness at the misconduct hearing Fantino initiated against two other senior officers.
The criminal investigation began in January, three months after now-retired provincial police Insp. Keith Messham inadvertently disclosed a privileged document during the discipline process.
"The commissioner, in commencing a criminal investigation of (ret.) Insp. Messham, has again attempted to punish a defence witness," according to the defence's factum filed with Appeal Court.
The document also shows the probe prompted the two other officers to complain about Fantino's behaviour to the deputy minister of community safety and the province's integrity commissioner.
The complaint, which has not been proven, alleges Fantino "engaged in unlawful acts of reprisals against defence witnesses," according to the factum.
The Messham probe came as a Divisional Court panel was still weighing a Fantino request to force retired justice Leonard Montgomery to step down as adjudicator in the misconduct case.
In a letter to the lead investigator filed with the Appeal Court, Messham's lawyer Scott Fenton called the probe of his client a "gross misuse" of criminal investigative power.
"The decision to direct a criminal investigation against Insp. Messham (ret.) appears to be part of a broader pattern of misuse of authority by the commissioner of the OPP against current and former senior officers who the commissioner perceives are disloyal, recalcitrant or disrespectful of his authority and his particular methods of enforcing discipline," Fenton wrote.
On Monday, the Appeal Court hears yet another attempt by Fantino to have the hearings put on hold while he fights to have Montgomery removed as adjudicator.
The disciplinary case arose when the high-profile commissioner charged Supt. Ken MacDonald and Insp. Alison Jevons, formerly with the provincial force's internal standards branch, with misconduct and deceit under the Police Services Act.
The two officers had reviewed how police responded to a domestic dispute involving yet another officer in 2004 and concluded proper process was not followed.
Messham, who served with the provincial police force for three decades until retiring in January, found no issue with how MacDonald and Jevons had acted. Their lawyer, Julian Falconer, called him as a defence witness.
Falconer had been arguing before Montgomery that Fantino was vindictive and politically motivated in charging the pair. He has previously argued Fantino tried to transfer another officer who co-operated with the defence.
As a result, he expressed concern that Messham would face sanction for the inadvertent disclosure, and even won agreement from Fantino's lawyer that none was warranted.
Three months later, however, Messham found himself under criminal investigation.
"It is apparent that the very concern with respect to reprisal by the commissioner against a witness has now occurred," Falconer said in a recent letter to Fantino's current lawyer, Tom Curry.
In an interview Sunday, Curry said he did not know any details of the Messham investigation.
"It has nothing to do with any of the issues that are now going forward," Curry said.
"For my part, it's really not relevant."
Fantino, who was under cross-examination by Falconer when his lawyer raised the bias accusation against Montgomery in November, wants a stay of the disciplinary proceedings while he tries to appeal two Divisional Court rulings that went against him.
He insists Montgomery, who expressed concerns after Fantino changed his evidence, has shown a pattern of bias that undermines his impartiality.
"Commissioner Fantino's credibility . . . is of importance and the adjudicator expressed unwarranted conclusions about (his) credibility and conduct in the midst of his evidence," Curry states in his factum.
The commissioner will suffer "irreparable harm" if a stay is not granted, he says.
For his part, Falconer wants the Appeal Court to deny a stay, arguing Fantino is seeking the hiatus for "an improper motive or purpose."