A suspended Hamilton cop accused of having porn on his work computer and sex on the job has lost his bid to exclude evidence against him at his misconduct trial on the basis that his Charter privacy rights were breached by investigating officers.
Tribunal hearing officer Robert Fitches dismissed a motion on behalf of Insp. David Doel that sought a pre-trial voir dire, or closed session, to hear arguments on why evidence taken from his computer should be ruled inadmissible.
In a Nov. 19 written decision, the retired OPP superintendent ruled that Doel’s lawyer, Harry Black, failed to provide enough details on the alleged breach “to begin to assess this point to any degree whatsoever” despite being asked to do so.
This made it impossible for both police prosecutor Lynda Bordeleau and the tribunal to “comprehend the nature of the allegations being made” and prepare for the October 2011 motion, he concluded.
In August, Black told the tribunal that investigating officers had acted like safecrackers to gather the “deeply personal” information against Doel, who had taken “extensive steps” to hide it.
Fitches found that case law “speaks quite clearly” to the importance of providing supporting facts for a Charter of Rights challenge, rejecting Black’s argument that doing so before the motion is heard is contrary to the disciplinary trial’s adversarial nature.
He similarly dismissed the lawyer’s insistence that the facts would emerge when police investigators testified on the witness stand – a process Bordeleau had criticized as “a fishing expedition.”
“It seems unreasonable to wait until these individuals are before me to ‘spring the trap.’ If there was improper conduct, keeping it a secret until the last minute will not make the misconduct disappear. It will be what it will be,” Fitches wrote.
“The tribunal asked Inspector Doel to provide the tribunal with details of his allegations against the Hamilton Police Service. He was not asked to provide details of his defense of the allegations against him. There is a notable difference, in my view.”
The ruling was made public on Nov. 22, the same day a scheduled conference call on hearing matters was canceled because Black was absent.
It was also the latest twist as the tribunal tries to hear the case against Doel, who has been on paid suspension since Oct. 23, 2009 on 14 Police Services Act charges of discreditable conduct, corrupt practice, neglect of duty and insubordination.
The trial is now set to proceed on Feb. 11.
The Dundas resident, who earned $141,790 in salary and benefits last year, is accused of engaging in sexual activity while on duty and possessing “pornographic and/or inappropriate material” on his work computer.
Other charges include allegations the former quality-assurance supervisor’s actions toward a female and male co-worker between September 2008 and September 2009 were “prejudicial to discipline or likely to bring discredit upon the reputation” of Hamilton police.
The trial has hit repeated delays since an initial hearing date in February of 2010, including as a result of arguments over disclosure of evidence and Doel’s undisclosed illness last fall that canceled two hearing days.