Windsor Constable appealing conviction for Freedom Convoy donation

Brisco v. The Windsor Police Service

Windsor Constable appealing conviction for Freedom Convoy donation

Brisco v. The Windsor Police Service

Constable Michael Brisco of the Windsor Police Service is a highly trained and respected police officer with an exemplary record. He has been a police officer for 15 years and has no prior disciplinary record.

So, what is his so-called offence? He made an anonymous $50 donation to the Freedom Convoy while on unpaid leave from his job as a police officer for choosing not to receive the Covid-19 vaccine. Constable Brisco made the donation on February 8, 2022, a day after a finding by the Superior Court Judge that protests could continue without honking.

Thousands of Canadians supported the Freedom Convoy and exercised their right to freedom of expression by donating to the peaceful protests in Ottawa. Constable Brisco believes that he was exercising his Charter right to freedom of expression when making the $50 donation to support the Ottawa Freedom Convoy.

The donation was brought to the attention of Windsor Police Service when the donor list was illegally obtained from the crowdfunding site, GiveSendGo. The Ontario Provincial Police intercepted the donor list and assisted in identifying police donors throughout Ontario.

After a six-day hearing before an Ontario Provincial Police Adjudicator, the Tribunal, on March 24, 2023, Constable Brisco was found guilty of Discreditable Conduct in a Windsor Police Service Discipline Hearing.

On May 18, 2023, the Tribunal ordered that Constable Brisco forfeit 80 hours of work as punishment.

In June 2023, Constable Michael Brisco filed a Notice of Appeal with Ontario Civilian Police Commission, challenging tribunal decisions finding him guilty of discreditable conduct and forcing him to work 80 hours without pay for donating $50 to the Freedom Convoy.

The Ontario Civilian Police Commission heard the appeal of Constable Michael Brisco on November 21, 2023.

Counsel for Constable Brisco argue that the prosecution against him lacks sufficient evidence. The claim that the Freedom Convoy in Ottawa was an unlawful protest rested entirely on claims made in newspaper articles by various officials, including the Prime Minister and the Premier of Ontario. No credible video, photographic, or other evidence on this point was filed against Constable Brisco. Further, counsel for Constable Brisco argue that the evidence against him – a hacked list that ought to have remained private and confidential – was obtained illegally. Counting the donor list as evidence against Constable Brisco amounts to an abuse of process, counsel argue.

Brisco’s legal counsel further argue that his conviction and penalty rested on a claim that Mr. Brisco’s donation was a demonstration of support for the Ambassador Bridge blockade in Windsor, Ontario; Mr. Brisco argues that there is no evidence of a link between the Ottawa protest and the Windsor blockade, and he denied any support for the blockade during his hearing.

Finally, Constable Brisco argues that the Tribunal’s decisions to convict and discipline him fail to acknowledge or proportionately balance their impact on his Charter-protected right to freedom of expression. While a police officer’s right to free expression is limited during the performance of their duties as officers, Constable Brisco did not donate to the Freedom Convoy in his capacity as a police officer. He also expected the donation to be confidential, and he did not seek to advertise his giving. The expression of off-duty police officers is protected by the Charter to the same degree as the expression of any other citizen.

Darren Leung, one of the lawyers for Constable Brisco, stated, “Freedom of expression is a right that is guaranteed to all Canadians. Police officers are also entitled to express their political beliefs, so long as they do it without identifying themselves as police. Furthermore, it is an injustice that Constable Brisco was investigated on the basis of illegally obtained information. Instead of investigating who was responsible for the hack, the Windsor Police Service have dedicated their resources in prosecuting Constable Brisco.”

“Every Canadian, including police and also including doctors, nurses, teachers and other regulated professionals, has a right to donate to the cause of her or his choice, and to do so privately and confidentially. No Canadian should face disciplinary proceedings at the hands of her or his professional association for expressing support for a cause or movement,” stated John Carpay, President of the Justice Centre.

The decision of the Windsor Police Service was appealed on June 14, 2023, but it was upheld by the Ontario Civilian Police Commission in February 2024. In response to this decision, lawyers provided by the Justice Centre have assisted Constable Brisco in applying for a judicial review – a process by which courts make sure that the decisions of administrative bodies (e.g., the Windsor Police Service) are fair, reasonable, and lawful.

With assistance from the Justice Centre, Constable Brisco continues to stand up for his Charter-protected freedom of expression. He made a private political donation and did not identify himself as a police officer. Like other Canadians, police officers enjoy Charter freedoms and can express themselves within reason. Canadians should not be punished for expressing their political views, especially when evidence against them is obtained by unlawful means.

Darren Leung, one of the lawyers for Constable Brisco, stated, “It was unfortunate that private donor information was unlawfully accessed. It is outrageous that the Ontario Provincial Police obtained this information to assist in persecuting police officers who were exercising their right to free expression. The evidence used to convict Constable Brisco amounted to nothing more than opinions from people who did not like the message. We are hopeful that the Divisional Court will see that the entire conviction was unreasonable.”

Constable Brisco, a highly trained and respected police officer of 15 years, is now back on active duty.

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