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Police - PSA - Ontario Independent Police Review Director (OIPRD) (2). Chaubet v OIPRD
In Chaubet v OIPRD (Div Court, 2023) the Divisional Court states plainly the absence of any duty on the police to investigate complaints:[9] Counsel for the OIPRD submits that the application for judicial review should be dismissed as frivolous because it seeks an order in mandamus which would appear to require the OIPRD direct the TPS to investigate the information provided by Ms. Chaubet. As confirmed by a panel of the Divisional Court in Homes v. White [2013] O.J. 2886 (Div. Ct.), “there is no private or public law duty owing by the police to investigate a complaint.” . Chaubet v OIPRD
In Chaubet v OIPRD (Div Court, 2023) the Divisional Court considers, and endorses in a JR, a PSA s.60(4) frivolous/vexatious and public interest 'screening-out' decision to dismiss an OIPRD complaint. Ironically, it does so by in fact repeating the OIPRD's frivolous/vexatious conclusions by granting the court's own RCP R2.1 ['frivolous and vexatious'] motion. In doing so, the court implicitly endorses a statement by OIPRD as to the extent of police discretion in investigation:[2] The OIPRD decision of November 5, 202,2 screened out Ms. Chaubet’s complaints as being frivolous and provided detailed reasons that included this explanation:...
Section 60(4) of the Police Services Act permits the Independent Police Review Director not to deal with a complaint if, in his opinion, having regard to all of the circumstances, dealing with the complaint is not in the public interest.
A review of the information you provided in your complaint indicates that you
raised the same allegations in your previous complaints to the OIPRD, [redacted] regarding the information you provided to the Toronto Police Service investigation [redacted].
Please note that the police have the discretion to determine whether or not to embark on an investigation of the information provided to them. In this case, we have carefully reviewed your complaint and while we understand your concerns, it appears that the police investigation into this matter is still ongoing. Furthermore, the police have an inherent discretion to determine what steps should be taken within an investigation. Whether an investigative step was appropriate depends on a number of circumstances. In fact, there may be circumstances when the officers are prohibited from performing an action based on the information provided to them. It is rare for courts and tribunals to second guess the police with respect to decisions made in the course of an investigation. As such, the decision of the officer not to investigate the information you provided is not unreasonable. The Police Services Act sets out screening criteria for public complaints and allows the OIPRD to decide which complaints should proceed and which should not proceed to investigation. Therefore, the Director has not identified any breach of the Police Services Act or its Code of Conduct. Therefore, having regard to all the circumstances, the OIPRD has decided not to investigate your complaint.
Please be advised that the Police Services Act, our governing legislation, does not provide for an appeal from the classification and screening of complaints conducted by the OIPRD. Accordingly, our file is now closed. If you wish to challenge this decision, you may bring a judicial review application in the Divisional Court which is a branch of the Superior Court of Justice. Information about the judicial review process is attached for your information.
A copy of your complaint as well as our decision not to proceed has been forwarded to the Chief of the Toronto Police Service for his records. . Poyton v. OIPRD
In Poyton v. OIPRD (Div Court, 2023) the Divisional Court considered a JR of an OIPRD decision to screen out ("not to deal with") a complaint on frivolous and vexatious or bad faith grounds [PSA s.60(4)1]. In this quote the court reflects the perhaps-universal (beyond the OIPRD context) legal cultural attitude that the investigation 'vindication' rights of an alleged victim/complainant are almost always weighed less than the competing rights of an alleged 'defendant':[24] Additionally, a decision to screen out a complaint has limited consequences for a complainant, which also informs the rigour of the reasonableness review: Vavilov, para. 133. Mr. Poyton is not entitled to a particular outcome or resolution of his complaint. The outcome has little impact on him, the aim of the complaints system being to remediate misconduct and improve police accountability rather than provide direct redress to the complainant. . Poyton v. OIPRD
In Poyton v. OIPRD (Div Court, 2023) the Divisional Court considered a JR of an OIPRD decision to screen out ("not to deal with") a complaint. In these quotes the court considers an argument by the applicant that the standard of review should be the raised JR standard of 'correctness', rather than the normal standard of 'reasonableness' - as the issue involved both Charter (constitutional) and 'general question of law critical to the legal system'. The court counters this with the high deference accorded to prosecutorial discretionary decisions:Jurisdiction and standard of review
[13] This court has jurisdiction to review the OIPRD decision pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act, RSO 1990, c. J.1.
[14] Decisions to screen out complaints are subject to review on a reasonableness standard: Wendt v. OIPRD, 2022 ONSC 166 (Div. Ct.); Wijayaratnam v. Office of the Independent Police Review Director, 2021 ONSC 6303 (Div Ct.); Korchinski v. Office of the Independent Police Review Director, 2022 ONSC 6074 (Div. Ct.).
[15] The Applicant submits, however, that a standard of correctness should apply, for two reasons. First, the Applicant argues that the OIPRD exceeded its jurisdiction by considering the deference owed to police investigation decisions and by concluding there was a lack of evidence to support an allegation of misconduct. This, the Applicant says, collapses the role of screener, investigator and adjudicator. Second, the Applicant has raised a constitutional issue, or general question of law, regarding the meaning of “public interest” under s. 60(4) of the PSA, arguing that this engages a complainant’s rights under s. 7 of the Canadian Charter of Rights and Freedoms, which ought to be considered when determining whether to screen out complaints.
[16] Neither argument has merit.
[17] In its decision, the OIPRD stated:While you may disagree with the decision by the officer, please be informed that courts and tribunals have recognized the broad discretion inherent in police investigation and are extremely reluctant to second-guess investigative decisions made by officers as long as they stay within the bounds of reasonableness. This discretion extends to the decision of whether to interview a witness or to charge an individual with a criminal offence. [18] The reference to the deference shown police decisions does not mean that the OIPRD exceeded its jurisdiction. Deference to an officer’s investigative decisions is well-established. In 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at paras. 51-52, the Court of Appeal stated very clearly that an officer’s function is to “make a conscientious and informed decision as to whether charges should be laid”, and that an officer is not “required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.”
[19] The OIPRD’s consideration of the legal framework surrounding its decisions and of the evidence necessary to support an allegation of misconduct was neither investigative nor adjudicative. Rather, it was simply a recognition of its task when screening complaints to determine whether the complaint is not in the public interest. In making this determination, the OIPRD must bear in mind Rule 6.5. Accordingly, courts’ and tribunals’ “reluctance to second-guess investigative decisions…within the bounds of reasonableness” is relevant when deciding whether an allegation of misconduct or neglect of duty does not, on its face, amount to a breach of the PSA or Code of Conduct.
[20] Turning to the Charter issue, the OIPRD is mandated to consider the “public interest” and is provided with a broad discretion to do so, which may include consideration of the rights of complainants and, perhaps more directly, the rights of officers. This includes Charter rights, but it does not change the standard of review. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 110, the Supreme Court observed that “where the legislature chooses to use broad, open-ended or highly qualitative language — for example, ‘in the public interest’ — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language.” Thus, whether or not Charter rights are considered, the interpretation of the “public interest” in the PSA is for the OIPRD to determine, and so long as it does so reasonably and “in light of the surrounding context”, its decision is entitled to deference by the courts. . Poyton v. OIPRD
In Poyton v. OIPRD (Div Court, 2023) the Divisional Court considers the extent of prosecutorial discretion, here in a JR of an OIPRD 'screening out' of the applicant's complaint in the 'public interest' [PSA s.60(4)3]:[18] ... Deference to an officer’s investigative decisions is well-established. In 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at paras. 51-52, the Court of Appeal stated very clearly that an officer’s function is to “make a conscientious and informed decision as to whether charges should be laid”, and that an officer is not “required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.”
[19] The OIPRD’s consideration of the legal framework surrounding its decisions and of the evidence necessary to support an allegation of misconduct was neither investigative nor adjudicative. Rather, it was simply a recognition of its task when screening complaints to determine whether the complaint is not in the public interest. In making this determination, the OIPRD must bear in mind Rule 6.5 [SS: "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."]. Accordingly, courts’ and tribunals’ “reluctance to second-guess investigative decisions ... within the bounds of reasonableness” is relevant when deciding whether an allegation of misconduct or neglect of duty does not, on its face, amount to a breach of the PSA or Code of Conduct. . Poyton v. OIPRD
In Poyton v. OIPRD (Div Court, 2023) the Divisional Court reviewed the basics of the OIPRD regime:The role of the OIPRD
[9] The OIPRD is an independent civilian agency established under the PSA to oversee and manage a public complaints system for police misconduct in Ontario. 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. Pursuant to s. 59 of the PSA, once a complaint is received, it is screened to determine whether it will proceed to an investigation. All complaints are presumptively screened “in” to be forwarded for investigation, unless the OIPRD exercises its discretion to screen the complaint “out” on the grounds set out in s. 60(4) of the PSA: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. [10] The term “public interest” is addressed in Rules 6.4 and 6.5 of the OIPRD Rules of Procedure, as follows: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 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 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
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. [11] Where a complaint is not screened out, it is forwarded for investigation to determine if there are reasonable grounds to believe that misconduct has occurred. Allegations of misconduct classified as serious will then proceed to a disciplinary hearing.
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