Appeal dismissed against Windsor police officer who made convoy donation

The Ontario Civilian Police Commission has dismissed an appeal 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, Const. Michael Brisco was ordered to forfeit 80 hours of pay as a penalty for his donation to the 2022 convoy protest.

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.

He challenged the finding of discreditable conduct saying that the hearing officer failed to apply a standard of "clear and convincing evidence" in arriving at the finding.

Commission's role is to assess reasonableness and correctness of findings

Brisco also complained that the investigation into his donation amounted to an abuse of process and that the hearing officer had failed to properly consider his expression rights under the Charter of Rights.

In addition, he alleged that the forfeiture of 80 days' pay amounted to an unreasonable and unduly harsh punishment.

In finding against Brisco, the appeal panel noted that its role is to review whether decisions made by a hearing officer are reasonable and legally correct.

It found that the original hearing officer, Superintendent (Retired) Morris Elbers, considered a range of evidence in concluding that the protests arising from the convoy were illegal at the time of Brisco's donation.

That evidence included a decision by the mayor of Ottawa to declare a state of emergency on Feb. 4; a statement by the Prime Minister that the protest was "becoming illegal"; the Premier of Ontario's description of some of the actions of the protesters as "lawlessness"; and a decision by the fundraising platform GoFundMe to remove a fundraiser for the convoy due to concerns about violence.

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'No basis for the commission to re-weigh and reinterpret the evidence'

"There is no basis for the commission to re-weigh and reinterpret the evidence," the ruling reads.

"The hearing officer's factual conclusions, which are based on a comprehensive evidentiary record, are entitled to deference."

The commission refused to consider Brisco's argument that the investigation into his actions amounted to an abuse of process because he failed to raise the concern at the initial hearing.

However, it did agree to consider the impact of the disciplinary process on Brisco's free expression rights, saying that the hearing judge erred in failing to conduct a formal analysis.

It found, nonetheless, that Brisco's decision to make his donation at a time when the protests were illegal and were exhausting police resources was likely to bring discredit to the reputation of the police service.

The commission concluded that the discipline struck a reasonable balance between Brisco's expression rights and the objectives of the Police Services Act.

The Windsor Police Service had argued that those objectives include maintaining public confidence in policing and providing adequate and effective police services in the province, according to the ruling.

Finally, the commission rejected Brisco's argument that his punishment was unduly harsh and dismissed his attempt to draw parallels between his case and that of Ottawa police officer Kristina Neilson, who was ordered to forfeit 40 hours of pay for her donation to the convoy.

Neilson entered an early guilty plea, and her submission included a restorative justice component, according to the decision..

The commission noted in its ruling that Brisco had a 15-year career at the Windsor Police Service with no prior disciplinary history and strong workplace and community character references