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The Ontario Divisional Court will hold a judicial review hearing Wednesday for a Windsor police officer convicted and punished for his $50 donation to the Freedom Convoy in 2022.
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Const. Michael Brisco was found guilty of discreditable conduct in March 2023 following a six-day Police Services Act hearing. He was ordered to forfeit 80 hours of pay. Brisco lost a subsequent appeal of that conviction before the Civilian Police Commission (OCPC).
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“Canadians in any profession should be free to express themselves on whatever political issue they feel strongly about,” Darren Leung, a lawyer with the Justice Centre for Constitutional Freedoms, which is representing Brisco, said in a statement.
“This case will test freedom of expression and the right of all Canadians to donate to the causes of their choice without fear of punishment,” the organization said Monday.
“Constable Brisco should not be punished for supporting a perfectly legal protest which certain politicians such as the Prime Minister disliked,” said Leung.
At the time of his anonymous donation, the veteran officer with an otherwise exemplary record said it was intended for the protesters in downtown Ottawa, not those participating in the Ambassador Bridge blockade at the same time by other opponents of government COVID-19 mandates.
At the original hearing, the prosecution had argued for a harsher penalty, saying Brisco’s donation had brought the Windsor Police Service into “disrepute” at a time his uniformed colleagues were trying to dismantle the bridge blockade.
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The OCPC, an independent, quasi-judicial agency whose function includes hearing appeals of disciplinary decisions, agreed the penalty was “significant” but not unreasonable.
The Justice Centre for Constitutional Freedoms said it will argue this week that Brisco made his donation not in his capacity as a police officer, but anonymously and while he was on unpaid leave (for refusing to take the available COVID-19 vaccine).
Part of Brisco’s appeal will be arguing that evidence of the donation only became public after an “illegal” hack into a crowdfunding platform that was then used by the OPP to track down officers who donated.
The Justice Centre said it will argue that the earlier disciplinary findings were based on media reports regarding “opinions that the Freedom Convoy was illegal,” which falls short of the necessary “clear and convincing” standard to support a finding of discreditable conduct.
Key facts in the case included Brisco’s donation coming days after Ottawa’s police chief had deemed his city’s downtown Freedom Convoy protest as unlawful; Prime Minister Trudeau saying the protest there was “becoming unlawful;” and Ontario Premier Doug Ford calling it an “occupation.”
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The Divisional Court is a branch of the Superior Court of Justice and hears statutory appeals from administrative tribunals in Ontario. Brisco’s hearing is in Toronto, the only city where the Divisional Court sits regularly throughout the year.
As recently as last month, the Star reported the City of Windsor was suing the federal government, still trying to recover the balance of approximately $900,000 of the nearly $7-million response to the week-long 2022 blockade, most of which went to policing and legal fees. Ottawa has already reimbursed Windsor the $6.1 million it says was refundable by the federal government.
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