Article by Harold Carmichael, Sudbury Star
An OPP sergeant has won a legal battle over whether he should be disciplined for speaking in favour of the legalization of marijuana at a public conference almost five years ago.
As a result, a judge has revoked a charge of insubordination against Sgt. Dan Mulligan, an OPP helicopter pilot.
Mulligan is known in Sudbury for having spoken out against the relocation of a Sudbury-based OPP helicopter to Orillia in 2015. He was disciplined for that as well, a finding a judge upheld earlier this year after Mulligan appealed an Ontario Civilian Police Commission decision.
In this second case, Mulligan spoke out in favour of cannabis legalization at a conference in Toronto in September 2015, before the decriminalization of marijuana became law.
Mulligan, who was off duty when he spoke, made it clear he was in favour of the legalization of marijuana and that he was not representing the views of his employer, the OPP.
Mulligan told the conference prohibition had failed, and that he and others in law enforcement saw no need to have a prohibition of cannabis. He attended the conference while off duty, in civilian clothes and spoke as a representative of Law Enforcement officials Against Prohibition, or LEAP.
However, Mulligan’s superior officer had ordered him not to attend or speak at the conference.
As a result, Mulligan was charged under the Police Act with insubordination and discreditable conduct. The insubordination charge arose from the fact Mulligan disobeyed the order of his superior when he attended and spoke at the conference. The basis for the second charge was the allegation that Mulligan’s conduct in speaking at the conference was likely to bring discredit upon the reputation of the OPP.
In 2017, a hearing officer convicted Mulligan and docked him 40 hours of pay in relation to the discreditable conduct charge and 24 hours for the insubordination charge.
Mulligan appealed his convictions (but not the penalties) to the Ontario Civilian Police Commission.
On Dec. 17, 2017, the police commission allowed his appeal with respect to the discreditable conduct conviction, finding there was evidence that, by 2012, most Canadians supported the legalization of marijuana. As a result, it was unreasonable to conclude that promoting that position at a conference would amount to “discreditable conduct in the eyes of the dispassionate, reasonable person even coming from a police officer.”
However, the police commission dismissed his appeal of the insubordination charge, finding the order Mulligan disobeyed by attending and speaking at the conference was a lawful one.
In response, Mulligan sought a judicial review of the police commission’s upholding the finding of guilt on the insubordination charge.
A Superior Court divisional court panel of three judges agreed to hear Mulligan’s application.
In her ruling, Justice Harriet Sachs addressed the fact that Mulligan was off duty when spoke at the conference and that he made it clear his views did not represent those of the OPP.
Justice Sachs said the police commission failed to take that into account and that it was wrong to assume, without evidence, that Mulligan would not enforce the laws around marijuana that existed at the time, which would justify a charge of insubordination.