A Toronto police constable who was fired for misconduct after tweeting about sexual harassment and racism inside the force has appealed her dismissal.
Const. Firouzeh Zarabi-Majd was found guilty of eight counts of misconduct at a Toronto Police Service disciplinary hearing decision on May 2 and was ordered to resign in seven days or be dismissed. The tribunal is a quasi-judicial forum where the service investigates allegations of serious breaches of its code of conduct and Police Services Act.
Zarabi-Majd was fired in relation to tweets alleging racism and sexual harassment inside the service, her refusal to leave the property of another officer and her refusal to take part in an internal investigation.
Melanie J. Webb, the lawyer who defended Zarabi-Majd, filed a notice of appeal to the Ontario Civilian Police Commission on May 8. The commission is an independent, quasi-judicial civilian police oversight agency that, among other things, resolves disputes regarding the oversight of policing services.
The notice, which Webb provided to CBC Toronto, states Webb is appealing the findings of misconduct and the penalty imposed upon Zarabi-Majd on the grounds that Robin D. McElary-Downer, who oversaw the hearing, allegedly made multiple errors and failings throughout the process. McElary-Downer is a retired deputy chief with the South Simcoe Police Service.
Webb wrote they are seeking that the findings of misconduct and penalty of dismissal be revoked, or a new hearing be ordered or that a lesser penalty be imposed.
Appeal claims multiple errors in decision
In total, the notice lists 14 issues in relation to the findings of misconduct and six with the imposition of the penalty of dismissal.
“The cumulative effect of the errors above resulted in multiple breaches of procedural fairness, a denial of natural justice, and overall a procedurally unfair hearing,” Webb wrote in the notice.
The Toronto police and the Toronto Police Association declined to comment.
According to the decision from early May, Webb argued during the hearing that Zarabi-Majd’s tweets were an outlet for her emotions and a manifestation of her PTSD and trauma. Webb also argued that any misconduct should be considered within the context that Zarabi-Majd had no prior disciplinary record and an exemplary service record in 10 years as an officer.
In the appeal, Webb said the penalty imposed didn’t take into account any chance for remediation, particularly in light of Zarabi-Majd’s personal circumstances and absence of a prior disciplinary record.
Webb declined to comment further on the appeal.
About three years before the tribunal ruled Zarabi-Majd should be dismissed, she told CBC’s The Fifth Estate that the Toronto police environment is “so toxic you’re just constantly trying to survive.”
WATCH | Officer tells The Fifth Estate about what she encountered in the workplace:
Toronto police Const. Effy Zarabi-Majd decided to document the pornographic magazines she found lying around at her workplace in 2018 and used the images as part of her complaint before the Human Rights Tribunal of Ontario.
Zarabi-Majd had no means to defend herself: appeal
Among the errors Webb claims is the fact that the hearing was held without Zarabi-Majd present.
Zarabi-Majd said she was unable to attend the hearing due to post-traumatic stress disorder, a diagnosis that McElary-Downer accepted, according to the appeal.
The appeal notes that Zarabi-Majd’s psychiatrist was of the opinion that she could not attend the hearing in person or virtually and says the police service’s prosecutor offered no evidence to refute that.
Webb had said it was unclear if any accommodation would allow for a fair hearing and that the accommodation needed would be an adjournment. McElary-Downer dismissed two applicaitons for adjournment.
“Because the appellant was unable to attend the hearing either in person or virtually, she was unable to participate in her own defence in any way,” the appeal reads.
Appeal claims decision relied on ‘hearsay,’ ‘opinion’
The appeal also alleges McElary-Downer made errors by relying on “hearsay” and “opinion” evidence, among other issues.
In the appeal, Webb alleges that McElary-Downer admitted and relied on “hearsay” evidence during the course of the hearing without referring to the “potential unfairness” that might have come from its “blanket acceptance.”
Webb does not specify which evidence she’s referring to as “hearsay.”
McElary-Downer also relied on evidence that was the opinion of an officer, Webb alleges in the appeal.
“It was unclear whether or not the officer offering such opinion had been specifically qualified to offer expert opinion evidence in the appellant’s matter,” the appeal says. The appeal does not specify who the officer was or what evidence they offered.
Webb further alleged that McElary-Downer failed to consider the “authenticity and admissibility of much of the documentary evidence tendered by the prosecutor and relied upon in [her] decision.”
A spokesperson for Tribunals Ontario said in an email that “next steps are being determined.”
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