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Durham police tend to a scene in Whitby, Ont., in 2012.

Fernando Morales/The Globe and Mail

An Ontario police chief is going to court in a bid to overturn a provincial body’s directive ordering his organization to drop disciplinary charges against an officer.

Durham Regional Police Service Chief Paul Martin last week filed an application asking a judge to reverse a directive made by an Ontario Civilian Police Commission administrator instructing the Durham force to drop disciplinary charges against Sergeant Nicole Whiteway.

The OCPC is a police oversight body invested with emergency powers to take control over aspects of police forces. Since launching an investigation of Durham Police just more than one year ago, the commission has been vetting the force’s disciplinary and promotional decisions.

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Durham Police is among Canada’s largest municipal forces. It has more than 900 uniformed officers policing communities east of Toronto, such as Oshawa and Pickering.

In early 2019, several officers, including Sgt. Whiteway, went public with complaints about harassment and leadership at the police service. The provincial government called in the OCPC to conduct a review.

“I am of the opinion that the crisis of confidence within the service constitutes an emergency, and that the appointment of an administrator to perform specified functions ... is necessary,” Linda Lamoureux, then the OCPC’s executive chair, said in a May, 2019, ruling.

Toronto police officer Michael Theriault found guilty of assaulting Dafonte Miller in 2016

Toronto police lay murder charges against man in separate shooting investigations

Under Ontario law, a police chief can order internal investigations into cases of alleged officer misconduct. Should serious charges be proven in tribunal hearings, officers can face penalties including docked pay, suspensions or even dismissal.

Starting in May, 2019, an OCPC-appointed administrator – Mike Federico, a former Toronto Police Service deputy chief – began to review nearly 30 continuing disciplinary cases in Durham. He recently told the local police service board that the vast majority of these cases have not been contentious.

The exception is the case involving Sgt. Whiteway. In 2017, she was separating from her former spouse when he accused her of improperly gaining access to his apartment as he was jailed on domestic-violence charges. He also alleged that she had taken a large sum of money from him.

After an internal investigation, Durham Police laid charges alleging discreditable conduct and corrupt practice against Sgt. Whiteway. The disciplinary case was heading toward a hearing until this summer, when Mr. Federico signed an 11-page decision saying it should not move forward.

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It “is not in the public interest to allow the PSA [Police Service Act] disciplinary hearing against Sgt. Whiteway to continue despite the prima facie evidence of misconduct that might exist against her,” he wrote in his June 17 decision, obtained by The Globe and Mail.

Citing allegations that a Durham Police deputy chief had used the disciplinary case as “a bargaining lever to extract information from Sgt. Whiteway” about another police officer, Mr. Federico found that the overall process was tainted. He then ordered the police service to “terminate the discipline hearing against her, forthwith.”

But his order to drop charges was never acted upon. Chief Martin is now challenging it in an Ontario Divisional Court, arguing that Mr. Federico’s directive “is not based on an internally coherent and rational chain of analysis.”

In an interview, the chief denied the “bargaining lever” allegation and said the disciplinary hearing should take place. “It is very much in the public interest to have an open and transparent hearing,” he said.

A lawyer acting for Sgt. Whiteway said the latest legal action is unsettling for his client, who has been battling the police brass for years. “She’s definitely been through enough, that anybody would want to walk away,” said Peter Brauti. “Not because she did anything wrong, but it’s been four years of nothing but torture.”

Tribunals Ontario, which oversees the OCPC, did not immediately respond to requests for comment.

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