Gurpreet Dhillon fights to have integrity commissioner’s report accusing him of sexual misconduct thrown out
A year ago, allegations emerged against Regional Councillor Gurpreet Dhillon for allegedly sexually assaulting a Brampton business owner while on a business trip in Turkey in November 2019.
Dhillon has consistently denied the allegations since they came forward. At an August 5 council meeting, Muneeza Sheikh, Brampton’s integrity commissioner, presented a 268-page report outlining her investigation into the allegations.
Dhillon was not present at the meeting.
Peel police told The Pointer in August that an investigation was not conducted as the alleged incident occurred in Turkey.
Her report asked Council to approve a number of punitive actions, including suspending Dhillon for 90 days, asking him to issue a formal apology, removing him as the chair of committees, restricting his ability to travel outside the province on city business, banning his access to his office for most uses and only allowing him to communicate with the public through his official email.
Councillor Gurpreet Dhillon in Turkey in 2019 where the alleged sexual assault was said to have occurred.
Council adopted all of Sheikh’s recommendations. Also accepted was a motion put forward by City Councillor Jeff Bowman which was supported by all members of council asking Dhillon to resign.
Dhillon was forced to comply with most of the punishments but refused to step down and has rejected the allegations detailed in Sheikh’s report. In a letter posted to Facebook days before council discussed Sheikh’s findings, Dhillon promised to fight back. “The allegations against me are wholly inconsistent with who I am and my 6-year track record as a public servant,” the message read, in part.
The handling of the case raises a number of complex questions. In the absence of a police investigation and criminal charges, Sheikh effectively took on a role beyond the scope of an integrity commissioner. In finding him guilty of the allegations she accused him of being guilty of a criminal act. Integrity commissioners are not supposed to deal with such matters, and are required to hand over investigations involving alleged criminality to the police or other law enforcement.
Dhillon took issue with the way she handled the matter.
On December 16, he made good on his promise to fight her report, filing a 1,700-page application for a judicial review asking the report, and council’s punitive actions, be revoked.
The process examines if the decisions made by an administrator are “fair, reasonable, and lawful.”
His legal team states the commissioner went beyond her authority, didn’t treat Dhillon with due fairness, and prepared an “unreasonable and illegal report,” stating the actions imposed by council made Dhillon suffer “serious harm”.
A lack of “lawful authority”
Dhillon’s legal team states in the application that Sheikh’s investigation was initiated without a formal complaint being filed, a violation of the requirements. It points out she only learned about the allegations through a phone call with Mayor Patrick Brown on November 27, 2019 after the alleged victim told him about the alleged events in an Ankara hotel room around midnight between November 14 and 15. Neither Brown or the complainant asked for a formal investigation at the time, Dhillon’s application states, and the required written complaint that is supposed to trigger an integrity commissioner investigation was never filed.
Sheikh does not dispute this in her response to the application but she argues the Municipal Act, which outlines her responsibilities and gives power to her role, allows her to launch an investigation without a formal complaint request.
Dhillon’s application refutes this. It points back to the Municipal Act, which states a “request” is required and that the City has to adopt a Code of Conduct which outlines the terms for the integrity commissioner’s work including how an investigation is to be launched.
According to the City’s Complaint Protocol in its Code of Conduct, the council-approved rules state: “A request for an investigation of a complaint that a member has contravened the Code of Conduct (the ‘complaint’) shall be sent directly to the Integrity Commissioner by mail, E-mail, fax or courier in the form attached to this Protocol as Schedule ‘A’. All complaints shall be signed by an identifiable individual (which includes the authorized signing officer of an organization).” The Code of Conduct, which was approved in 2016, states a formal complaint form must lay out all the allegations clearly including the name of the council member and the specific violations that might have contravened the Code of Conduct.
Both the Municipal Act and the Code of Conduct prevent the integrity commissioner from investigating criminal matters, and complaints that involve criminal allegations are to be suspended until law enforcement authorities have completed their full investigation process including the final disposal of charges.
The Municipal Act states: “If the Commissioner, when conducting an inquiry, determines that there are reasonable grounds to believe that there has been a contravention of… the Criminal Code (Canada), the Commissioner shall immediately refer the matter to the appropriate authorities and suspend the inquiry until any resulting police investigation and charge have been finally disposed of, and shall report the suspension to council.”
In compliance with its governing legislation, Brampton’s Code of Conduct also does not allow the integrity commissioner to investigate criminal matters. It states: “If the complaint is not, on its face, a complaint with respect to non-compliance with the Code… if the complaint on its face is an allegation of a criminal nature consistent with the Criminal Code of Canada, the complainant shall be advised that if the complainant wishes to pursue any such allegation, the complainant must pursue it with the appropriate police force.”
Dhillon’s application pointing out a formal complaint was not filed when he was made aware that Sheikh was investigating the matter, details how Sheikh contacted the complainant in order to eventually get a written complaint and avoid any concerns that she was not following protocol.
In her report, Sheikh notes that Dhillon’s lawyer raised the concern that no complaint had been filed shortly before March 19, 2020. She contacted the complainant’s lawyer, Nadia Klein, to provide an update on the investigation and mentioned the concern that a formal complaint had not been filed. One was filed a day later, months after Sheikh had launched her investigation.
In her August 5 report, Sheikh states she exercised her own judgment to conduct the investigation. “I chose to exercise my discretion in doing this, as the allegations were extremely concerning in nature. I was and still am of the view that allegations of this nature (sexual misconduct) are to be investigated immediately and without delay.”
It’s unclear why she thought this was the case, as the legislation she is supposed to follow clearly states she is not to investigate complaints of a criminal nature.
By claiming she had her own “discretion” to treat anything as a formal complaint, Sheikh, who has no prior experience as a municipal lawyer or as an integrity commissioner, thought she could investigate any topic she wanted and not apply the rules of the Municipal Act, Code of Conduct or Complaint Protocol, Dhillon’s lawyers argue in his application to have Sheikh’s report thrown out.
“There is nothing in the governing legislation or the Complaint Protocol that permits the Integrity Commissioner to rely on prior consistent statements in this way, in contravention of well-established rules of evidence. These errors directly undermine the Integrity Commissioner’s credibility assessment of the complainant.”
In response to Dhillon’s application, separate lawyers representing the integrity commissioner and the City of Brampton have filed their retorts.
The response from Sheikh’s lawyers outlines that the complainant spoke with Brown and a member of his staff on November 20, 2019, and played a recording of the alleged incident for them.
Sheikh’s report details that Brown arranged a meeting between himself, various staff in his office and the alleged victim, after she revealed her allegations to him. The alleged recording was played when they met.
Though it’s certainly common for an alleged victim to share and process their experience with others as an important part of deciding to come forward, it’s unclear why Brown arranged to meet with the alleged victim and took staff with him before police were involved.
A week later, on November 27, 2019, Brown “reported the complainant’s allegations” to Sheikh and informed her he reported the matter to police. Later that day, Sheikh informed Brown his “request” was being treated as a formal complaint. Brown didn’t state any objections, according to Sheikh, but he never filed a complaint himself and the alleged victim still had not submitted one.
Roughly a month later, Sheikh says she learned Peel Police were not investigating the complaint because of “jurisdictional issues.”
Shortly after the release of Sheikh’s report in early August this past summer, Peel police confirmed with The Pointer that Turkish authorities were still investigating the matter. It’s unclear why Sheikh did not suspend her probe and wait to address the complaint until after the completion of the entire law enforcement process, if she was allowed to do so under the legislation.
In her response to Dhillon’s application, Sheikh says she treated Mayor Brown’s phone call to her as a formal complaint, and she claims this allowed her to begin her own investigation.
It’s not clear why she waited a month to contact Peel police and why she went forward with a probe despite the requirement to set aside any matter that involves alleged criminality.
Denying Dhillon “sufficient information” and his right to be heard
Dhillon’s lawyers argue he wasn’t given “sufficient information” to respond to the allegations filed against him. Under the complaint protocol detailed in the City’s Code of Conduct, information needs to be shared at two points. The first is immediately after a complaint has been accepted by the integrity commissioner. “Serve the complaint and supporting material upon the member whose conduct is in question with a request that a written response to the allegation by way of affidavit or otherwise be filed within ten days,” the Complaint Protocol states.
The second point is closer to the end of the commissioner’s process, before a decision is made, in order to give the opposing party a chance to respond, Dhillon’s team argues. “The Integrity Commissioner shall not issue a report finding a violation of the Code of Conduct on the part of any member unless the member has had reasonable notice of the basis for the proposed finding and any recommended sanction and an opportunity either in person or in writing to comment to the Integrity Commissioner on the proposed finding and any recommended sanction,” the complaint protocol states.
Dhillon’s application says “the opportunity to be heard” only works if the accused knows what the evidence being used is so they can respond to it. Dhillon’s legal team asked for the evidence launched against him, primarily the alleged audio recording that offers details of the alleged attack, and evidence gathered from witnesses, in order to provide a “meaningful response”. They argue this requirement was not fulfilled. The only materials the integrity commissioner provided was a summary of the phone call between Brown and Sheikh which led to the investigation, email exchanges between the two, a transcript of the audio recording and the eventual complaint form, according to Dhillon’s application.
“Allowing the Integrity Commissioner access to all of the evidence, and allowing the member access only to the parts of the evidence selected by the Integrity Commissioner, is fundamentally unfair,” Dhillon’s legal team argues.
Not disclosing such information prevents the member from “meaningful participation” when the process of the decision is being made. The lawyers argue that even though the commissioner can change the first draft of the report after getting input from the accused, key steps such as “the weighing of evidence, finding of facts, and application of the Code of Conduct,” have already been discussed when evidence is presented after the fact. The opportunity to be heard happens before decisions are made, and in order for this to be carried out fairly, evidence needs to be shared early on in the investigation.
The integrity commissioner provided an interim report on July 14 to Dhillon’s lawyers. They argue he was given a week to look at the report and even though Dhillon allegedly pointed out flaws, the final report was “identical to the first draft” and no changes were made. His lawyers argue Sheikh said she wouldn’t consider submissions on the first draft of the report or evidence she provided to Dhillon because he had not conducted an interview with her.
“In the face of the scant disclosure provided by the Integrity Commissioner, Mr. Dhillon explained that the only meaningful participation he could offer was a letter denying the allegations,” Dhillon’s application states.
Without sufficient information about the allegations against him, lawyers for Councillor Gurpreet Dhillon argue he was unable to respond.
In her final report, Sheikh says Dhillon refused to meet with her and was an “obstructionist” in her ongoing investigation. Dhillon’s defence argues such an interview is not legally required. This was especially true, they said, since there was no proper complaint, evidence was not properly disclosed to Dhillon, and there were no summons for an interview. They argue there is nowhere in the Municipal Act, Complaint Protocol, or Brampton’s Code of Conduct stating an interview has to be completed.
Dhillon’s application states he was never “unwilling to cooperate” but believed he had the right to be given the disclosure of the evidence before being interviewed. He had requested a copy of the audio recording before meeting with Sheikh, but she said she could not provide an audio copy because the complainant would not allow it. She instead offered a written transcript or to play the audio recording in her presence, without providing it to Dhillon and his team. They argued this would not allow them to test the authenticity of the recording.
Dhillon argues in his application that his position was not obstructionist, but rather a defence of his rights to fair process. Even if this was an incorrect legal position for Dhillon to take, it shouldn't override his right to be heard, he argues. Obstruction happens if the person being investigated does anything to interfere with the ongoing investigation or doesn’t comply with an obligation the procedure states should be acted on. This did not apply to Dhillon, his legal team argues.
“Upholding the Integrity Commissioner’s definition of obstruction will chill legitimate inquiries of Integrity Commissioners, which will reduce safeguards against overreach. This Court ought not allow such an outcome.”
Sheikh’s lawyers argue Dhillon didn’t meet her for an interview despite her numerous requests, instead sending a written response on April 7 denying the allegations without any other details. She notes this as a change from Dhillon’s initial behaviour expressing “willingness” to complete an interview. Her legal team outlines Sheikh provided a number of details to Dhillon and he was “well positioned to respond to the allegations, if he intended to do so.”
An interview was denied a second time on April 27, and Dhillon’s counsel stated he had nothing to add beyond the April 7 response. A third point of refusal, according to Sheikh’s response, came after Dhillon was presented with the interim report and didn’t participate, when his legal counsel questioned why Dhillon was only given a week to respond.
Her response states that Dhillon’s claim of an inability to participate which “meant he had limited scope to respond to the report,” “erroneously suggested the integrity commissioner had restricted his response.”
“On this application, Councillor Dhillon makes repeated reference to the Integrity Commissioner’s comment that she understood there would be limited response from him, while completely ignoring her clear statement that she remained prepared to receive any information that he wished to provide,” her legal team states.
Sheikh’s legal team states she asked Dhillon to partake in interviews a number of times between February and April of 2020. He “refused” and posed “procedural irregularities” in the investigation. Sheikh states she attempted to answer the questions that arose from this but Dhillon kept repeating the same questions and didn’t agree to meet with her. Her legal team argues there is no definition to what obstruction means, either in the Municipal Act or Code of Conduct.
“In refusing to accept my answers, and most critically in refusing to take part in an investigation where he was named as the Respondent, it is my view that Councillor Dhillon hindered and delayed the completion of my investigation. In doing so, Councillor Dhillon did not respect the intent and spirit of the Code of Conduct or my investigation,” Sheikh states in her report.
Issues with council’s actions
The last issue Dhillon raised in his application to quash Sheikh’s report was the way it was handled by City Council, claiming they accepted “illegal penalties,” such as Dhillon being forbidden from travelling outside of the province on city business.
Under section 223.4(5) of the Municipal Act, the only “penalties” that could have been suggested were reprimand or suspending pay for 90 days, while continuing his duties as a councillor, Dhillon’s lawyers argue. Other remedial measures, under the guiding legislation, such as asking for a formal apology, can be made as long as they’re not punitive. Dhillon’s legal team state the actions recommended by Sheikh and by other members of council went beyond what is allowed under statute.
The City’s legal team argues council “properly exercised” its rights when they imposed the penalties against Dhillon. It’s unclear how this was the case, as the legislation is clear about what can and can not be imposed, Dhillon’s lawyer’s argue.
When council was discussing the report, they asked Sheikh and Brampton’s acting solicitor, Diana Soos, a number of questions to ensure their actions were within the Municipal Act. This led council to approve all proposed actions, as well as asking Dhillon to resign from his position.
Citing the report from the integrity commissioner, the City’s legal team points to the recording made by the complainant as part of important evidence of Dhillon’s misconduct, highlighting the following sentence from Sheikh’s report: “The audio recording makes it very clear how vigorously the Complainant was refusing Councillor Dhillon while he was trying to force himself onto her. The Complainant said ‘no’ a total of 74 times.”
It remains unclear why this allegation was part of the integrity commissioner’s work and why she ruled on it, as it is a criminal allegation, which she was not supposed to investigate.
The City’s legal team denies Dhillon’s claim that it authorized “illegal penalties” or that council acted beyond its jurisdiction in imposing the measures it did.
Citing the video and transcript from the August 5 council meeting when the integrity commissioner report was dealt with, the City lawyers argue the decisions were made on Sheikh’s findings that Dhillon breached the Code of Conduct when he sexually harassed someone on a trade mission as a representative of the City.
They state the actions were remedial and were made to address the effects of Dhillon’s alleged misconduct and these are not punitive measures. Specifically speaking on the action to remove Dhillon from the economic development committee, for example, the City’s lawyers pointed to sections 8, 9, and 11 of the Municipal Act which gives the City permission to “take steps relating to its own governance structure as appropriate”. These are outside the Act’s sections related to the integrity commissioner’s role and jurisdiction.
“This measure was carefully targeted to redress the harm caused by the specific misconduct in question. Councillor Dhillon’s sexual misconduct gave rise to a serious loss of public trust and confidence in his ability to be a representative of the community.”
Dhillon’s lawyers argue if the report is upheld, it would mean council can give itself “new powers” to impose actions towards council members, and integrity commissioners “are a law unto themselves” and can ignore their duties under the idea of “self-granted ‘discretion’.”
Dhillon is asking for the report to be set aside or, as an alternative, Sheikh’s finding that he went against the code of conduct to be thrown out. He also wants to have all of the “penalties” enacted against him dismissed.
Sheikh’s lawyers are asking for the application to be dismissed. If not, it should go back to the commissioner so Sheikh can reconsider the entire matter.
The City’s lawyers adopt the response from Sheikh and ask the court to uphold council’s “good-faith decision” of remedial steps to keep staff and residents safe and to allow the City to address the “serious loss of public confidence” brought on by the alleged actions.
A decision in the judicial review has not yet been released.
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