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Fairness - Basic Communication. Boua v. Office of the Independent Police Review Director
In Boua v. Office of the Independent Police Review Director (Div Court, 2024) the Divisional Court allowed a JR of an OIPRD decision under Police Services Act, s.71 ['Request for review by Independent Police Review Director'], here involving OIPRD investigation of a non-English first language complainant's complaint:[27] Understanding and having one’s language understood by the decision-maker is an important part of the right to be heard. In Société des Acadiens v. Association of Parents, 1986 CanLII 66 (SCC), [1986] 1 S.C.R. 549, at p. 577, Beetz J. emphasized that the right to be understood is required for a fair hearing, stating as follows:The common law right of the parties to be heard and understood by a court and the right to understand what is going on in court is not a language right but an aspect of the right to a fair hearing. It is a broader and more universal right than language rights. It extends to everyone including those who speak or understand neither official language.
See also MacDonald v. City of Montreal, 1986 CanLII 65 (SCC), [1986] 1 S.C.R. 460, at p. 499. ....
[29] Given the importance of being understood as a component of the right to a fair hearing, the concerns Ms. Boua raised about misunderstanding and misinterpretation throughout the process should have raised a significant concern about whether the investigation adequately addressed the issues in the complaint. The Director’s own triage process squarely flagged the issue and recommended the matter could not be properly reviewed on the existing record. In these circumstances, we find it was incumbent on the Director to advert to this issue in his reasons. In our view, his failure to address this issue when he decided it was unnecessary to remit the matter for Ms. Boua to be interviewed was unreasonable.
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[37] In a circumstance where there was a serious concern that Ms. Boua had not been properly understood during the investigation because of language barriers, it was unreasonable for the Director to dismiss the question of whether Ms. Boua should be interviewed by saying he had her submissions when in fact he had not read and was not able to understand those submissions. We consider his reliance on the submissions in these circumstances to constitute a failure to account for a key consideration on the record before him.
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