Toronto's police chief will not have to testify at a disciplinary hearing for the most senior officer charged over mass arrests made during the city's G20 summit, a retired judge ruled Wednesday after finding that the top cop's evidence would be irrelevant.
The proceeding is looking into the actions of Supt. David Fenton, who has pleaded not guilty to five Police Services Act charges stemming from two "kettling" incidents that occurred over the tumultuous 2010 summit weekend.
When he took the stand in his own defence in mid December, Fenton told the hearing his superiors were fully aware of the manner in which he had ordered the arrests, which became the largest in Canadian peacetime history.
After hearing his statements, lawyers for complainants involved in the case had requested that Chief Bill Blair and retired deputy chief Tony Warr be called before the hearing to explain their involvement in Fenton's decisions.
Counsel for Blair and Warr argued that the two senior officers' evidence would be irrelevant and that the police chief could not be compelled to appear.
Retired Ontario judge John Hamilton, who has been hearing the case, agreed with those arguments.
"I find that procedural fairness would be trampled upon if I were to allow deputy Warr or Chief Blair to be summoned to testify in this hearing," Hamilton said as he delivered his decision on Wednesday.
"I would like to continue with the business of hearing evidence pertaining to the allegations of misconduct against Supt. Fenton."
Blair was found to be "not a compellable witness" as he has the authority of a hearing officer under the Police Services Act — powers he has delegated in Fenton's case to Hamilton, but authority he still nonetheless holds.
"The legislature set this up this way so that the chief keeps the authority," said Hamilton. "I find that the role of the chief of police when dealing with conduct of his officers, is adjudicative in nature. The chief is the employer."
Hamilton also found that counsel for the complainants who had sought to have Blair and Warr testify already possessed information on the extent of the two senior officers' involvement in the events that took place during the summit weekend.
"I find that Chief Blair does not have evidence relevant to the decision I must make about Supt. Fenton's conduct," Hamilton said.
A lawyer for the three complainants who had tried to have Blair and Warr summoned expressed disappointment at Hamilton's ruling and noted that the testimony of the two senior officers was only sought after Fenton brought up their involvement.
"Supt. Fenton is the one who put their evidence, their conduct, into evidence and that is directly relevant to the issues in the proceedings," said Adrienne Lei
"If Fenton's going to be running the Nuremberg defence then the prosecution should have the right to put the evidence of Blair and Warr directly to him. If he's just following orders, we need to talk to the person who is giving the orders."
Fenton is expected to resume testifying in his own defence on Thursday.
