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 protest against pandemic mandates.

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 the hearing officer failed to apply a standard of "clear and convincing evidence" in arriving at the finding.

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

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

Original hearing officer cited range of evidence

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

It found the original hearing officer, Supt. Morris Elbers, who has since retired, 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 Ottawa's mayor to declare a state of emergency on Feb. 4.
• A statement by the prime minister that the protest was "becoming illegal."
• The Ontario premier's description of some of the actions of the protesters as "lawlessness."
• A decision by the fundraising platform GoFundMe to remove a fundraiser for the convoy due to concerns about violence.

"There is no basis for the commission to reweigh 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 the discipline struck a reasonable balance between Brisco's expression rights and the objectives of the Police Services Act.

Officer's 15-year career taken into account

The Windsor Police Service (WPS) had argued 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 WPS with no prior disciplinary history and strong workplace and community character references.