NORTHERN ONTARIO

Court rejects provincial police officer's appeal of discreditable conduct penalty

Darren MacDonald CTVNorthernOntario.ca Journalist

Published Thursday, April 30, 2020 1:55PM EDT

OPP helicopter takes to the sky as seen in this picture. (OPP)

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SUDBURY -- v> An Ontario court has rejected an appeal by an Ontario Provincial Police sergeant seeking to have his discreditable conduct conviction overturned.

In a decision released earlier this month, the court dismissed his attempt to use the whistleblower defence -- and his claim the ruling against him was biased.

Sgt. Dan Mulligan was found guilty in 2017 of breach of confidence and discreditable conduct for undermining the public's confidence in the OPP. He was demoted to the rank of first-class constable for one year, after which he would be a sergeant again.

Mulligan got in hot water over a letter he sent to a local newspaper in May 2015. Mulligan strongly criticized the force’s plan to move one of its two search and rescue helicopters out of Sudbury to a central site in Orillia.

In the letter, he described the move as a "very negligent crapshoot with northern lives" and that Orillia was a bad location because frequent snow squalls force them to ground the helicopter.

His appeal was first rejected in 2018. Mulligan tried to convince the hearing officer dealing with his case to recuse herself, accusing her of bias, and said she had a conflict of interest since she reports to the head of the OPP, which had an interest in the case.

The hearing officer denied his motion, ruling he was using allegations of bias as a "weapon" to overturn her decision. Mulligan wasn’t entitled to use the whistleblower defence, she ruled, because he made no attempt to bring his concerns to his superiors, and went straight to the media.

Making a reasonable attempt to deal with the problem internally before going public is required to use the whistleblower defence. Mulligan said he went public first because he didn’t trust his superiors.

"I found this to be a self-serving notion," the hearing officer ruled. "What I heard and saw pointed to a frustrated employee whose contempt for his supervisor was deep-rooted and substantial."

While Mulligan said the move would jeopardize lives in the north, the hearing officer ruled he didn’t provide any evidence to back his claims. And in an email he sent to the province around that time contained "10 pages" of complaints about his supervisor.

"Sgt. Mulligan’s evidence persuaded me that the relocation of the OPP helicopter was, at least in part if not wholly, a convenient and timely opportunity for him to speak out against the OPP," she wrote in her decision.

Mulligan appealed, seeking a judicial review of his claims of bias and the whistleblower defence.

But the Ontario Court of Justice turned down the request, ruling Mulligan had failed to satisfactorily explain why he made no attempt to address the matter internally.

"Sgt. Mulligan’s explanation for not raising the matter internally first was that his work environment was poisoned, and his chain of command was dysfunctional," the court transcript says.

"Had he simply first sent the same letter … up the chain of command, either he would have received a response or he would have paved the way for him to go public with his concerns."

And the bar for accusing a judge of bias is high, the court ruled. The hearing officer made a mistake when she refused his request for disclosure from the OPP. But that error wasn’t significant enough to change the outcome, the court said, since Mulligan clearly was not entitled to use the whistleblower defence, which was the basis of his case.

"Absent exceptional circumstances, a public servant like Sgt. Mulligan, who owes a duty of loyalty to their employer, should not be able to breach that duty without first giving their employer a chance to deal with the matter," the court ruled. "The application for judicial review is dismissed."