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Police - PSA - Ontario Independent Police Review Director (OIPRD)
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. Yen v. Office of the Independent Police Review Director
In Yen v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considers a JR of the decision of the OIPRD to not proceed with a complaint. In these quotes the court sets out some basics of the Police Services Act OIPRD regime:The OIPRD’s Complaint Process
[13] Pursuant to the Police Services Act, R.S.O. c. P15, s. 59(1) (“PSA”), members of the public may make a complaint to the OIPRD about the police in Ontario. The Director is required to review every public complaint and those complaints are presumed to be screened “in” unless the Director exercises his legislative discretion to screen the complaint “out”. The PSA gives the Director broad discretion to decide not to deal with a complaint and screen it “out”: Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, 373 D.L.R. (4th) 149.
[14] The grounds to screen “out” are set out in s. 60 of the PSA:60. The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if, in his or her opinion, one of the following applies:
(1) The complaint is frivolous or vexatious or made in bad faith;
(2) The complaint could be more appropriately dealt with, in whole or in part, under another Act or another law;
(3) Having regard to all of the circumstances, dealing with the complaint is not in the public interest. [15] “Public interest” is not defined in the PSA; however, the OIPRD has provided guidance in Rules 6.4 and 6.5 of the OIPRD Rules of Procedure (“OIPRD Rules”) (see also Wijayaratnam v. Office of the Independent Police Review Director, 2021 ONSC 6303 (Div. Ct.), at para 9):6.4 In determining whether or not to deal with the complaint, the Director will have regard to the public interest. Public interest will always include a balancing of interests and a broad range of considerations. Some of the factors which the Director may consider will include:
(i) the effect of a decision to deal or not deal with a complaint on public confidence in the accountability and integrity of the complaint system
(ii) the number of complaints involved
(iii) the seriousness of the complaint, including the seriousness of the harm alleged
(iv) whether the complaint relates to an incident or event that has already been the subject of an earlier complaint
(v) whether there are issues of systemic importance or broader public interest at stake
(vi) the likelihood of interfering with or compromising other proceedings
(vii) whether another venue, body or law can more appropriately address the substance of the complaint.
6.5 It is not in the public interest to screen in a complaint that does not, on its face, disclose a breach of the Act or the Code of Conduct. . Murray v. Office of the Independent Police Review Director
In Murray v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court struck out a prolix self-presenter's JR application of an OIPRD's decision that, once a police officer had resigned, the OIPRD lost jurisdiction. Corbett J, sitting for the Divisional Court, held that the only 'remedy' left to the applicant was certiorari striking the OIPRD decision, and gave leave for her to re-file accordingly:[3] On November 17, 2022, the OIPRD advised the applicant that the sole remaining police officer named in Ms Murray’s complaint had resigned from their employment and was no longer a police officer. The OIPRD advised that, pursuant to s.90 of the Police Services Act, it had no jurisdiction to continue its investigation into the matter, and so the review request would proceed no further.
[4] Ms Murray then commenced this proceeding, seeking review of the OIPRD report and that this court adjudicate the underlying complaint, since the OIPRD had lost jurisdiction to do so. Ms Murray alleged that this court has inherent jurisdiction to carry on with the complaint now that the OIPRD has lost jurisdiction.
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[7] I understand Ms Murray’s frustration. Her lengthy, detailed argument, which she describes as an “essay”, is based on the fundamental principle of public law that arguable legal claims may be brought to an administrative body or court for adjudication. If no administrative body or court has statutory jurisdiction over a legal claim, then, as a matter of first principles, a court with inherent jurisdiction must have jurisdiction over that claim: in a society governed by the Rule of Law, there is always recourse available somewhere for adjudication of a legal claim. Ms Murray is self-represented, and if she has been unable to identify the correct venue for her claim, then it is the responsibility of the court to guide her in the right direction. In aid of her argument, Ms Murray has expounded on:- The intersection of certiorari and inherent jurisdiction
- “misplaced, if widespread, American ideas about local or “state” jurisdiction in Canadian law”
- “using the Socratic method, resulting in the construction of a simplified syllogism”
- “self-certiorari” (“as a life tactic, is under-utilized and highly advised, so long as it does not reach a level of neuroticism”)
- The second Quebec Reference (the provincial legislature “cannot in any way interfere with the federally distributed inherent jurisdiction of the s.96 court of inherent jurisdiction”)
- “federalism as an unchecked leviathan in Canadian constitutional law”
- “this application is one of inherent jurisdiction, explicitly, that makes a request for certiorari over the exercise of the specific judicial function of evaluating the legality of an arrest (habeas corpus), which is the core jurisdiction of the s.96 court of inherent jurisdiction”
- The OIPRD does not have original jurisdiction to rule on the legality of an arrest, but may consider and decide this question to the extent that it is necessary to so do to carry out its role investigating a complaint (my words, synthesizing the applicant’s argument)
- An OIPRD decision that includes findings about the legality of an arrest may be raised as a basis for an estoppel in other proceedings in which this issue is raised (such as a civil claim or a human rights claim) (my words, synthesizing the applicant’s argument).
- The OIPRD report is “patently unreasonable” and “contains defamatory statements” about the applicant, and may be used against the applicant in related civil and/or administrative proceedings [8] The Divisional Court is a statutory appellate and review court. It is not a court of inherent jurisdiction. This is well-trod ground and the applicant’s submissions to the contrary are without merit.
[9] The subject-matter of the applicant’s complaint to the OIPRD has disappeared. This court has no more jurisdiction to decide this complaint than does the OIPRD. This does not leave a “gap” to be filled by a court of inherent jurisdiction: there is no subsisting claim now that the police officers implicated in Ms Murray’s complaint have all left their employment with police services. Ms Murray’s concern that there must be a court with jurisdiction to rule on the legality of the arrest is misplaced: court’s do not rule on factual issues in the abstract: if the legality of the arrest is relevant to a subsisting legal claim, the court with jurisdiction over that claim may decide the point.
[10] However, there is one aspect of Ms Murray’s application which could be pursued in this court: a request for an order in the nature of certiorari quashing the OIPRD report of October 7, 2022. No further remedy is now possible: this court cannot remit the matter back to the OIPRD for further proceedings, nor may this court take original jurisdiction itself to decide the complaint.
[11] What would be the point of such an application? Ms Murray is concerned that the findings in the report could be used against her in other civil or administrative proceedings (such as a civil claim or a claim to the Human Rights Tribunal). It is not clear that principles of issue estoppel could lead to this result, in this case, but I acknowledge Ms Murray’s concern on this point and conclude that I should not decide this question summarily under R.2.1: this concern is at least arguable. . R. v. Collins
In R. v. Collins (Ont CA, 2023) the Court of Appeal, in the course of considering fresh evidence in a Charter 24(2) appeal, reveals some practices of the OIPRD:[18] The appellant seeks to introduce a Notification Letter dated November 18, 2022 from Stephen Leach, Director of the OIPRD, addressed to the Ontario Police Chiefs and the Commissioner of the Ontario Provincial Police. The letter says that part of the OIPRD’s mandate is to monitor policing issues that may affect the public’s trust in the police. The letter states that the OIPRD has identified dynamic entries as such an issue, and it recommends that police services in Ontario adopt specific policies for how to handle and document situations where the police depart from the “general rule” that the police are to “knock and announce their presence before entering a home.”
[19] The appellant argues that the letter is relevant to the third line of inquiry in Grant because it shows that there is a societal interest in not condoning a case such as this one where the police have failed to provide a satisfactory explanation for their dynamic entry into the appellant’s home.
[20] In my view, the letter should not be admitted as fresh evidence, primarily because, contrary to the fourth requirement in the Palmer test, it could not reasonably be expected to have affected the result at trial: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.
[21] The letter suggests that police forces should have policies in place that require that dynamic entries in private homes only be used in exigent circumstances, that dynamic entries be pre-authorized and that the circumstances and rationale for a dynamic entry be carefully documented after the fact. However, in this case, there is no evidence regarding the Hamilton Police Service’s policy regarding dynamic entries. As noted in the letter, some police forces already have these types of policies in place. In addition, as observed by the trial judge, there is no evidence that the use of unjustified dynamic entries is a systemic issue in Hamilton. In the circumstances, in the absence of any evidence showing a link between the concerns expressed in the letter and the circumstances of this dynamic entry, the letter on its own could not have affected the outcome of the s. 24(2) Charter analysis. . Komer v. Attorney General of Ontario
In Komer v. Attorney General of Ontario (Div Ct, 2022) the Divisional Court heard a judicial review application arguing that an OIPRD investigation was unreasonably conducted. The case is brief and interesting for illustrating to OIPRD investigation process.
. Martinez v. Office of the Independent Police Review Director
In Martinez v. Office of the Independent Police Review Director (Div Ct, 2022) the Divisional Court considered the duty of the OIPR director to vet complaints:[19] The Director’s broad power to screen out complaints provides balance to the ease with which complaints may now be made. It protects the integrity of the complaints system by ensuring that available resources are not directed to complaints for which there is, among other things, tenuous supporting evidence. [See Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363 at para. 30].
[20] The Director’s reasons for screening out a complaint need not be lengthy nor complex, but the complainant and the court are entitled to know the rudiments of the explanation for why the complaint will not be investigated. [See Wall v. Office of the Independent Police Review Director, 2014 ONCA 884 (CanLII)].
[21] The decision letters provided by the Director fairly summarized the complaint(s) made, the statutory framework within they could be considered, the steps taken to obtain the information necessary to assess the complaints and the reason the complaints would not or could not be pursued. For those complaints for which sufficient detail existed, the Director determined no breach of the PSA or any police code of conduct was indicated. For the various other complaints including corruption, embezzlement, harassment, infanticide, acceleration of death and other crimes, Mr. Martinez either refused to or was unable to provide the information necessary to warrant further investigation. Absent such information it was not in the public interest to dedicate investigative resources to the complaints.
[22] In these circumstances, the decisions made by the Director were reasonable. They were based on internally coherent reasoning that was both rational and logical; they were not untenable in light of the relevant factual and legal context in which they were made. . Wendt v. Office of the Independent Police Review Director
In Wendt v. Office of the Independent Police Review Director (Div Ct, 2021) the Divisional Court summarizes part of OIPRD procedure:Public Complaints Process
[6] With a few exceptions, all members of the public may make a complaint to the OIPRD about the police in Ontario. The Director is required to review every public complaint made.[1] The Police Services Act establishes that all public complaints are presumed to be screened “in”, unless the Director exercises his legislative discretion to screen it “out.”[2] The grounds for screening “out” a complaint include if it is “not in the public interest to be dealt with, having regard to all the circumstances.”[3]
[7] The OIPRD Rules of Procedure provide guidelines for screening of complaints. Specifically, Rule 6 establishes that in screening a complaint, the Director may consider various factors including - but not limited to - the impact of the decision on the public confidence in the oversight system, the seriousness of the compliant, and whether the complaint, on its face, discloses misconduct.[4] Rule 6.5 provides that it is not in the public interest to investigate a complaint that does not on its face disclose misconduct. This is because proceeding with an unwarranted investigation into unmeritorious allegations that have no chance of success will tax the public complaints system, cause prejudice to other parties, and inevitably damage public confidence in the police oversight system.[5] If a complaint is “screened out”, the file will be closed. The OIPRD notifies the complainant and the chief of police of the Director’s decision and the reason(s) for screening out the complaint.[6]
[8] If a complaint is screened in, the matter will proceed to an investigation to determine whether misconduct can be substantiated. If the investigation finds misconduct, the matter may proceed to a disciplinary hearing.[7] The court then continued to characterize the law that applied to the OIPRD summary dismissal stage:[25] In Endicott v. Ontario, the Ontario Court of Appeal noted that the Police Services Act gives the Director broad discretion to decide not to deal with a complaint and to do so before any investigation as provided in s.61 is undertaken. No hearing or proceeding is contemplated at what is described as the “weeding out stage”, which does not require a hearing, or lengthy reasons.[10] Contrary to the Applicant’s argument, there was no requirement for the Director at the screening stage to engage in a legal analysis of the concept of misconduct. The court in Vavilov made it clear that “administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge – nor will it always be necessary or even useful for them to do so.”[11]
[26] In Wall v. Office of the Independent Police Review Director, the Court held that the Director’s reasons for screening out a complaint under s.60(2) of the Police Services Act need not be lengthy or complex. But they must at least answer the question “Why?” The complainant and the court (for purposes of review) are entitled to know the rudiments of the explanation for why the complaint has been screened out.[12] . Wijayaratnam v. Office of the Independent Police Review Director
In Wijayaratnam v. Office of the Independent Police Review Director (Div Ct, 2021) the Divisional Court sets out the role of the OIPRD:OIPRD
[4] The role of the OIPRD is to receive and manage all public complaints about police misconduct in Ontario.
[5] A member of the public may complain to the OIPRD about policies or services of a police force, or the conduct of individual police officers.
[6] Once a complaint is received, it is screened to determine whether it will proceed to an investigation (s. 59 of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”)).
[7] All complaints are presumptively screened “in”, unless the OIPRD exercises its legislative discretion to screen the complaint “out”.
[8] The grounds to screen “out” are set out in s. 60 of the PSA:60. The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if, in his or her opinion, one of the following applies:
1. The complaint is frivolous or vexatious or made in bad faith;
2. The complaint could be more appropriately dealt with, in whole or in part, under another Act or other law;
3. Having regard to all of the circumstances, dealing with the complaint is not in the public interest. [9] “Public interest” is not defined in the PSA; however, the OIPRD has provided guidance in Rules 6.4 and 6.5 of the OIPRD Rules of Procedure (“Rules”):6.4 In determining whether or not to deal with the complaint, the Director will have regard to the public interest. Public interest will always include a balancing of interests and a broad range of considerations. Some of the factors which the Director may consider will include:
(i) the effect of a decision to deal or not deal with a complaint on public confidence in the accountability and integrity of the complaint system
(ii) the number of complainants involved
(iii) the seriousness of the complaint, including the seriousness of the harm alleged
(iv) whether the complaint relates to an incident or event that has already been the subject of an earlier complaint
(v) whether there are issues of systemic importance or broader public interest at stake
(vi) the likelihood of interfering with or compromising other proceedings
(vii) whether another venue, body or law can more appropriately address the substance of the complaint
6.5 It is not in the public interest to screen in a complaint that does not, on its face, disclose a breach of the Act or the Code of Conduct. [10] A complaint may be screened out if it is brought more than six months after the facts on which it is based occurred (s. 60 (2) of the PSA).
[11] Under Rule 6.2 the Director has the discretion to request further information.
[12] At the time of the Applicant's complaint, Rule 17 permitted the Director to reconsider his decisions:17.1 The Director may, at any time, correct a typographical error, error of calculation, misstatement, ambiguity, technical error or other similar error made in his or her decision up for determination.
17.2 The Director may reconsider his or her decision when it is in the public interest to do so, and having regard to any relevant considerations including, but not limited to, the following:
(i) the need to correct an error of fact or law, defect in the procedure or improper application of its mandate or jurisdiction
(ii) there is new information which was not available at the time of the original decision that may have reasonably affected the outcome
(iii) the extent to which any party has relied on the original decision
(iv) the extent to which any party or person has been affected by the original decision
(v) the balancing of interests between the need for the finality of decisions and the prejudice to all parties . Potter v. Office of The Independent Police Review Director
In Potter v. Office of The Independent Police Review Director (Div Ct, 2021) the Divisional Court succinctly stated the essence of the OIPRD statutory complaint process:The Legislative Context
[3] The role of the OIPRD is to receive and manage all public complaints about police misconduct in Ontario. Pursuant to s. 59 of the Police Services Act, R.S.O. 1990, c. P. 15 (the “PSA”), members of the public may make a complaint to the OIPRD about the policies or services provided by a police force or the conduct of a police officer. When a complaint is received, the staff review it to determine whether the complaint should be referred for investigation.
[4] There is a presumption that a complaint will be screened in unless it is screened out in accordance with the criteria found in s. 60 of the PSA. For example, a complaint may be screened out if it is brought more than six months after the facts on which it is based occurred (s. 60(2)). For purposes of the present application, s. 60(4) is important. It states:The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if, in his or her opinion, one of the following applies:1. The complaint is frivolous or vexatious or made in bad faith.
2. The complaint could be more appropriately dealt with, in whole or in part, under another Act or other law.
3. Having regard to all the circumstances, dealing with the complaint is not in the public interest. [5] Rule 6 of the OIPRD’s Rules of Practice also sets out criteria to be applied in the screening process. In accordance with Rule 6.1, the Director must first determine whether the complaint relates to the conduct of a police officer or to the services or policies of a police service. In accordance with Rule 6.2, the Director has the discretion to request further information:6.2 When more information is required to screen the complaint or assign it for investigation, the OIPRD will request such other information as required from either the complainant or the police service. The police liaison officer may be required to supply the OIPRD with information to assist in screening or assigning the complaint for investigation. [6] Rule 6.4 deals with the concept of the “public interest”, setting out factors that may be considered:6.4 In determining whether or not to deal with a complaint, the Director will have regard to the public interest. Public interest will always involve a balancing of interests and a broad range of considerations. Some of the factors which the Director may consider will include:(i) the effect of a decision to deal or not to deal with a complaint on public confidence in the accountability and integrity of the complaints system
(ii) the number of complainants involved
(iii) the seriousness of the complaint, including the seriousness of the harm alleged
(iv) whether the complaint relates to an incident or event that has already been the subject of an earlier complaint
(v) whether there are issues of systemic importance or broader public interest at stake
(vi) the likelihood of interfering with or compromising other proceedings
(vii) whether another venue, body or law can more appropriately address the substance of the complaint. [7] Finally, Rule 6.5 states that “It is not in the public interest to screen in a complaint that does not, on its face, disclose a breach of the Act or the Code of Conduct.” . Stanley v. Office of the Independent Police Review Director
In Stanley v. Office of the Independent Police Review Director (Ont CA, 2020) the Court of Appeal explains in part the role of the Office of the Independent Police Review Director (OIPRD):[35] In order to explain my conclusions, it is necessary to outline the legislative framework within which the OIRPD operates. The procedure for addressing police complaints is complex. This summary, which is not comprehensive, highlights the difference between the powers of the OIPRD to refer cases to a chief of police for investigation and the power to refer a case for a hearing.
[36] The OIPRD is an arms-length agency of the Ministery of the Attorney General. It derives its authority from Parts II.1 and V of the PSA. As stated in its Annual Report (April 1, 2018 to March 31, 2019), at p. 7: “The OIPRD ensures that public complaints about police are effectively dealt with in a manner that is transparent and fair to both the public and the police. All decisions are independent of the government, the police and the public.”
[37] In general, any member of the public may make a complaint to the OIPRD under the PSA about the policies of, or the services provided by, a police force, or the conduct of one of its officers (ss. 58(1), (2)). The Director shall review every complaint it receives (s. 59). A complaint is presumptively “screened in” (meaning that it will be investigated), unless the Director exercises his legislative discretion to “screen out” the complaint (meaning that it will not be investigated) (s. 60). This may occur, for example, when the Director determines that the complaint is vexatious (s. 60(4)). Therefore, the presumption is that complaints are “screened in”.
[38] This initial screening power has been interpreted to be a statutory power of decision within the meaning of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1: see Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, 373 D.L.R. (4th) 149, at para. 28.
[39] In Wall v. Office of the Independent Police Review Director, 2014 ONCA 884, 123 O.R. (3d) 574, at paras. 33-36, the Director decided not to consider a complaint that had been made six months after the alleged incident. He relied upon s. 60(2), which provides that the Director “may decide not to deal with a complaint by a member of the public if the complaint is made more than six months after the facts on which it is based.” The Divisional Court held that the Director erred in treating s. 60(2) as a limitation period, failing to apply the discoverability principle, and failing to give adequate reasons: Wall v. Independent Police Review Director, 2013 ONSC 3312, 362 D.L.R. (4th) 687 (Div. Ct.).
[40] In dismissing the Director’s appeal, this court described the Director’s discretion under s. 60 as a “screening” function: Wall (ONCA), at para. 62. Writing for the court in Wall (ONCA), Blair J.A. observed, at para. 45, that this function involves the exercise of “a discretion to be exercised within the confines of the factors set out in s. 60(3) and the bounds of procedural fairness”: see also paras. 28, 49, 60.
[41] If a complaint remains “screened in”, s. 59(2) requires the Director to ensure that every complaint reviewed under s. 59(1) is “referred or retained and dealt with in accordance with section 61”. Section 61 gives the Director three options:(a) refer the complaint to be investigated by the chief of police of the officer’s force (s. 61(5)(a));
(b) refer the complaint to be investigated by the chief of police of another force (s. 61(5)(b)); or
(c) retain the complaint to be investigated by the OIPRD (s. 61(5)(c)). Where the OIPRD retains the complaint for investigation and finds it to be substantiated, it must refer the matter under s. 68(3) to the chief of police for a hearing. That is what happened in this case – the Director originally found the Stanleys’ complaint to be substantiated and made a hearing referral.
[42] Thus, it can be seen that there are two types of referral: investigation referral under ss. 61(5)(a), (b), and hearing referral under s. 68(3).
[43] At the conclusion of an investigation, the decision-maker (be it the Director or a chief of police) must report on the investigation in writing and provide reasons explaining whether there are reasonable grounds to believe misconduct occurred (ss. 66(1)-(3) (chief of police); ss. 68(1)-(4) (OIPRD)).
[44] The decision-maker must then determine whether the misconduct is “serious”. Misconduct that is determined to be “not of a serious nature” may be dealt with by informal resolution, or discipline without a hearing, with the consent of the complainant and the officer (ss. 66(4)-(7) (chief of police); ss. 68(4)-(7) (OIPRD)). Importantly, with all “serious” misconduct findings, a hearing must be held to determine whether the officer committed the misconduct alleged.
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