The misconduct trial of Hamilton police Insp. David Doel faces yet another delay, this time because of allegations by his lawyer that the hearing officer is biased against him.
Lawyer Harry Black is calling on Robert Fitches to recuse himself in the wake of his refusal to hold a pretrial hearing on Black’s bid to exclude evidence against his client on the basis that his Charter privacy rights were violated by police investigators.
Black will argue for the retired OPP superintendent’s removal from the case on Feb. 11, the date the trial was finally set to begin.
Doel, who earned $141,790 last year, has been on paid suspension since Oct. 23, 2009 on 14 Police Services Act charges, including over allegations he had porn on his work computer and sex on the job.
In a Nov. 28 conference call, Black rejected Fitches’ suggestion the question of whether he should continue to hear the case be dealt with through written submissions to allow the trial to proceed in February as scheduled.
The Toronto lawyer said doing so doesn’t allow back-and-forth arguments, and instead committed to provide Fitches and prosecutor Lynda Bordeleau a supporting factum two weeks beforehand.
He said he also can’t fit an earlier hearing date into his schedule because he is booked solid with other cases.
“We’re not going to agree to do this in writing. I can tell you, superintendent, that I have had no luck with submitting things in writing in this case,” Black said.
“You don’t have my agreement, which you do require under the (Statutory Powers Procedure Act), if this tribunal even had rules, which it doesn’t for in-writing and electronic hearings and so on.”
Bordeleau agreed neither she nor Fitches can compel Black to proceed through written arguments, but said having the factum beforehand will be helpful.
“I don’t have any other ability to move this forward. I have offered evenings, weekends. Mr. Black’s indicated his schedule,” the Ottawa-based lawyer said.
“At this point, I don’t have any ability to assist you, superintendent, to get this moving quicker without the consent of the inspector’s counsel.”
Black’s bid to remove Fitches comes on the heels of the superintendent’s recent dismissal of his motion for a pretrial hearing on whether evidence taken from Doel’s computer should be inadmissible on the grounds that his privacy rights were breached.
Fitches ruled Black failed to provide enough details on the alleged breach to support a pretrial hearing and rejected his argument the facts would emerge when police investigators testified – a process Bordeleau criticized as “a fishing expedition.”
The 14 misconduct charges against Doel, who was the chief’s quality-assurance supervisor, include allegations he engaged in sexual activity while on duty and had “pornographic and/or inappropriate material” on his work computer.
They also allege Dundas resident’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 the disclosure of evidence and Doel’s undisclosed illness last fall that canceled two hearing days.