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The association backed Jabobs’ unsuccessful application to the Divisional Court and has applied for leave to appeal the court’s decision to the Ontario Court of Appeal, Skof said. Moreover, the Police Association of Ontario is seeking intervener status if the appeal is heard.

“It’s not just an Ottawa issue now,” Skof said. “It affects all the standards across the province on how to apply evidence rules.”

The police associations are alarmed by the Jacobs decision because, they say, it lowers the standard of proof required in police disciplinary cases from “clear and convincing evidence” to the easier-met “balance of probabilities” standard used in civil cases.

They cite a 2013 decision by the Supreme Court of Canada that stated that “clear and convincing evidence” is a different and higher standard of proof than the balance of probabilities.

However, the Division Court rejected that argument, concluding that a balance of probabilities remains the standard for all civil proceedings, including police disciplinary hearings.

Bruce Chapman, president of the Police Association of Ontario, said police believe the process for hearing disciplinary cases against police officers lacks fairness and isn’t impartial.

“A hearing officer is appointed by the chief, who has ordered the charge to be laid,” he said. “The hearing officer is usually a member of the police service, as is the prosecutor.”

Given that, “the standard of proof should be more than just a balance of probabilities,” Chapman said. “It should be clear and convincing evidence to convict a party under the Police Services Act.”

If the Court of Appeal agrees to hear the case, a decision isn’t likely until at least 2016. Meanwhile, said Greenspon, a civil action launched by Krupa against Jacobs is on hold pending the outcome of the appeal.

Greenspon, reached while on his honeymoon, didn’t recall the details of the civil suit but said it involved “significant damages for pain and suffering” in the range of six figures or more.

dbutler@ottawacitizen.com

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