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Police - PSA - Ontario Independent Police Review Director (OIPRD) (3). A. Z. v. Office of the Independent Police Review Director
In A. Z. v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considered a JR of the dismissal of OIPRD screening, investigation and examination of a complaint of local police misconduct, here regarding their handling of sexual assault allegations. Paras 1-35 are illustrative of police and OIPRD procedures in such matters.
In these quotes the court considers bias, here in an statutory and administrative OIPRD (police complaint) context:[55] A reasonable apprehension of bias is to be determined not from the standpoint of the decision-making organisation, or from that of the complainant. Rather, the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 111.
[56] It is not an answer to an allegation of reasonable apprehension of bias to say that there is no evidence that actual bias was displayed by the NRPS investigation into the applicant’s complaints. It is sufficient that if a reasonable and informed person would have reasonable concerns about the ability of the NRPS to conduct an impartial and unbiased investigation into five of its own, a reasonable apprehension of bias would be established.
[57] While public expectations in relation to the police complaints system in Ontario have evolved over the last two decades, it remains open to a police service to investigate a complaint into its own officers.
[58] In his Report on the Police Complaints System in Ontario (Toronto: Ministry of the Attorney General of Ontario, 2005), the Honourable Patrick J. LeSage, Q.C., expressly rejected the proposition that police services could not investigate themselves.
[59] By contrast, the Honourable Michael H. Tulloch (now Chief Justice of Ontario), in his 2017 Report of the Independent Police Oversight Review (Toronto: Queen’s Printer for Ontario, 2017) (“Tulloch Report”), noted, at p. 167:Many of the people with whom I spoke expressed a strong desire to have an independent, civilian body investigating police misconduct, rather than police services themselves. Irrespective of issues of actual bias, they noted the potential for a perception of bias when police officers investigate other police officers in their same force. Such views led Tulloch J.A. (as he then was) to recommend that within five years, the OIPRD should be the sole body to investigate police misconduct complaints.
[60] However, this recommendation from the Tulloch Report was not adopted by the government when it enacted the Community Safety and Policing Act, 2019, S.O. 2019, c. 1., Sched. 1. To the contrary, the new legislation, once proclaimed, would create a presumption in favour of having the same police service conduct investigations.
[61] Further, currently, s. 61(5) of the PSA explicitly permits the investigation of a complaint to be referred to the same police service for investigation. The statutory scheme does not require that complaints be sent to a different service, or that they be retained by the OIPRD. In exercising the discretion to retain the complaint or to refer it to the same or different police service, s. 61(6) of the PSA requires the Director to consider the nature of the complaint and the public interest. Further, Rule 7 of the OIPRD’s Rules of Procedure sets out a list of non-exhaustive factors to be considered in making the decision to refer or retain the investigation of a complaint. The OIPRD’s Operational Directive provides further guidance in making this determination.
[62] The applicant relies on the portion of the Operational Directive that provides, as an example of a complaint the Director may retain or refer, “[a]llegations of substandard police investigation of sexual assaults…where effective oversight cannot be achieved by referring the complaint to a different police service other than the one that undertook the original investigation.” However, the Operational Directive provides guidance, not mandatory instruction. It also states that the decision to retain or refer is made on a case-by-case basis. It does not contain a presumption that allegations of substandard police investigation of sexual assaults be retained by the OIPRD or be referred to a different police service than the one that undertook the original investigation.
[63] In the present case, the record clearly demonstrates that at the screening stage, the OIPRD was alert to the question of whether or not investigation of the applicant’s complaints should be undertaken by the NRPS, or by an external force, or by the OIPRD itself. This is evidenced by the fact that one of the four OIPRD personnel involved at the screening stage did support referring the matter out to another police service. The other personnel, however, found that the factors that would support a referral to a different police service were not engaged. It is evident from the record that due consideration was given to the issue.
[64] Contrary to the applicant’s belief, the investigation was not conducted by the same unit as the one to which the complaint pertained. The complaint was investigated by the Professional Standards Unit, as opposed to the Sexual Assault Unit. In the end, two officers were found to have violated certain policies relating to sexual assault investigations and were found to be in neglect of duty.
[65] In addition, the NRPS has a review body, the Sexual Violence Advocate Case Review Team, which examines all sexual assault allegations where charges are not laid. This review body is composed of civilians who represent various advocacy groups in the Niagara region. None of the members of the review body are employees of the NRPS. The review body can make recommendations to the Sexual Assault Unit if its members have a concern about an investigation. The review body did not make any recommendations in this case.
[66] Overall, the OIPRD reviewed the specific circumstances of this case and exercised its discretion to refer the complaint to a different unit of the same police service, where there would also be oversight by a civilian review body. A reasonable person would not find these circumstances raised a reasonable apprehension of bias.
[67] Based on the foregoing, we are not satisfied that there was actual or a reasonable apprehension of bias. . A. Z. v. Office of the Independent Police Review Director
In A. Z. v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considered a JR of the dismissal of OIPRD screening, investigation and examination of a complaint of local police misconduct, here regarding their handling of sexual assault allegations. Paras 1-35 are illustrative of police and OIPRD procedures in such matters.
In these quotes the court considers procedural fairness in the OIPRD complaint screening process, here regarding 'reasons for decision' and Baker 'legitimate expectations':Was There a Breach of Procedural Fairness?
[44] The applicant argues that she was denied procedural fairness because she was not provided with reasons for her complaint being sent to the NRPS for investigation, nor was she given the opportunity to make submissions on that issue, despite her legitimate and reasonable expectations that her complaint would be investigated either by the OIPRD or by a different police service.
[45] At the screening stage of the process, the OIPRD is given a broad discretion. In Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, 373 D.L.R. (4th) 149, at para. 28, the Court of Appeal stated:It is beyond the scope of this appeal to define what limits or procedural requirements may be imposed by the PSA on a director’s discretion to screen out a complaint. Suffice it to say that the PSA does not contemplate the need for a hearing or notice, nor does it impose any specific procedural requirement. The PSA gives the Director broad discretion to screen out complaints and to do so before any investigation as provided in s. 61 is undertaken. No hearing or proceeding is contemplated at the weeding out stage. [46] As Endicott makes clear, the threshold for procedural fairness at the screening phase is low. The OIRPD was under no obligation to provide a reasoned decision. Nevertheless, it is clear that the process did engage consideration of whether or not the NRPS should be responsible for investigating the applicant’s complaints. Indeed, the OIPRD’s own investigator, Robert Zufelt, expressed the view that investigation of the complaint should be retained by the OIPRD or referred to another police service. Ultimately, however, the senior manager concluded that the complaint did not necessitate the OIRPD either retaining it or referring it to another service. His view was that despite the deficiencies in the investigation, the professional standards unit of the NRPS should be able to conduct a thorough review of the matter, taking into account their own sex assault investigation policies.
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[50] Similarly, we disagree with the applicant’s submission that she ought to have been given an opportunity to make submissions on the issue of whether the misconduct was “serious” or “less serious.” As further detailed in these reasons, the characterization of the seriousness of the misconduct is for a limited disciplinary purpose: Green v. Toronto Police Service, 2016 ONSC 6433 (Div. Ct.). Under the PSA, the chief of police determines whether the misconduct is serious or not and is not required to consider submissions or provide reasons. Pursuant to s. 71(1) of the PSA, the opportunity for a complainant to make submissions is at the review stage, which the applicant did in this case.
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Was the Determination that the Misconduct Was Not of a Serious Nature Unreasonable?
[80] The scheme of the PSA is that if, following an investigation, a police chief believes on reasonable grounds that an officer’s conduct constitutes misconduct, the matter will proceed to a disciplinary hearing unless the misconduct is deemed “not to be of a serious nature”.
[81] As the Divisional Court explained in Green v. Toronto Police Service, 2016 ONSC 6433 (Div. Ct.), s. 80(1) of the PSA, which provides that a police officer is guilty of misconduct if they engage in any of eleven categories of proscribed activity, does not characterise any of these categories as “serious” or “not serious”. However, s. 66(4) of the PSA provides that if the chief of police is of the opinion that the misconduct was “not of a serious nature”, the chief of police may resolve the matter informally without holding a hearing if the police officer and the complainant consent to the proposed resolution. Even if the complainant does not consent, the chief may still resolve the matter without a hearing, but subject to certain limitations imposed by s. 66(10) of the Act. The penalties available in that circumstance are set out in s. 85(1)(d),(e), and (f). As Dambrot J. explained in Green, at para. 23:In short, if a chief of police is of the opinion that misconduct is not of a serious nature, at the most the decision takes dismissal and demotion off the table as potential punishment. The limited significance of the characterization of misconduct as not serious informs the interpretation of the term. . Potter v. Office of the Independent Police Review Director
In Potter v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considered (and dismissed) a JR of a decision by the Director of OIPRD to find no police misconduct after a local police investigation stemming from the complaint of the applicant.
In this paragraph, the court succinctly cites the limited purpose of the OIPRD-PSA system: "remediating police conduct, improving police accountability, and increasing public confidence in police oversight":[81] As the Respondent points out, the PSA does not provide a complainant with substantive benefits or remedies. The complainant does not receive monetary awards or compensation and there are no personal or financial remedies a complainant can pursue. Rather, the outcome of the process is directed at remediating police conduct, improving police accountability, and increasing public confidence in police oversight. Where a complaint proceeds to an investigation, the PSA entitles a complainant to no more than a copy of the investigative report and, where misconduct is substantiated, the right to participate in an informal resolution or party status if the matter proceeds to a hearing. Complainants have a right to make a complaint, but they are not entitled to a particular investigative outcome or resolution: Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, at paragraph 23. The Director’s decision to confirm the Chief’s findings does not threaten the complainant’s life, liberty, dignity, or livelihood in any way. Consequently, there was no heightened responsibility for the Director to consider the consequences of his decision on the Applicant. . Potter v. Office of the Independent Police Review Director
In Potter v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considered (and dismissed) a JR of a decision by the Director of OIPRD to find no police misconduct after a local police investigation stemming from the complaint of the applicant.
In these quotes the court canvasses standards of review applicable to such JRs:STANDARD OF REVIEW
[37] The Director’s decision to screen “out” the Applicant’s complaint is reviewable on a reasonableness standard. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 (“Vavilov”), the Supreme Court of Canada confirmed that the presumption is that the reasonableness standard applies in assessing the merits of an administrative decision. The application of the reasonableness standard to the Director’s request for review decisions has been confirmed in a series of recent decisions of this Court: Potter v. Office of the Independent Police Review Director, 2021 ONSC 1602; Korchinski v. Office of the Independent Police Review Director, 2022 ONSC 6074.
[38] The Supreme Court of Canada in Vavilov did recognize, however, that correctness would be the appropriate standard where the decision in question engages the rule of law, namely where the decision raises a constitutional question; a question of law of central importance to the legal system; or a question regarding the jurisdictional boundaries of two or more administrative bodies arises. . Potter v. Office of the Independent Police Review Director
In Potter v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court reviews the statutory role of the Director of OIPRD:The Director’s Powers
[14] The Director of the OIPRD (“the Director’) is responsible for dealing with the public’s complaints regarding police officers’ conduct in Ontario. The OIPRD obtains its powers from Parts II.1 and V of the PSA, which create a statutory right of review for complainants to challenge the outcomes of the investigations. Section 71 of the PSA requires the Director to review the police service’s investigation where a chief of police has determined the misconduct was unsubstantiated or the misconduct was not of a serious nature.
[15] This review process is not a de novo investigation but rather considers two issues: (i) whether the investigation conducted by the police gathered relevant evidence and adequately addressed the allegations raised in the complaint; and (ii) whether the conclusions of the chief of police were supported by the evidence.
[16] The Director has statutory options, per s. 71 of the PSA, available at the conclusion of a review. He or she can:(a) confirm the chief of police’s decision in relation to the complaint;
(b) direct the chief of police to deal with the complaint as he specifies;
(c) assign the investigation of the complaint or the conduct of a hearing to a force other than the police force to which the complaint relates;
(d) take over the investigation of the complaint; or
(e) take or require to be taken any other action with respect to the complaint that he considers necessary in the circumstances. ....
The Director’s Governing Statutory Scheme
[69] The Applicant asserts that the Director’s decision ought not to stand because he failed to investigate during the review process. There is no merit to this submission. To require the Director to conduct his own investigation during the review process would be inconsistent with the OIPRD’s statutory scheme. As noted earlier, s. 71(1) of the PSA creates the right of review and s. 71(2) defines its parameters. Subsection 71(2) specifies that the Director’s role at this stage is to “review the decision” and specifically limits the material he is to take into account to what is “provided by the complainant or the chief of police”. The subsection further specifies that a review is not a hearing. The term “investigation” is used elsewhere in Part V of the Act, including in s. 66 (investigations by the chief of the police service of which the respondent officer is a member); s. 67 (investigations by another police service); and s. 68 (investigations by the Director). Section 66 applies to the Applicant’s complaint as it was investigated by the OPS.
[70] It is clear from the use of the term “investigate” in these subsections and its use of “review” in s. 71 that the Legislature did not intend for these terms to be conflated or interchangeable. It is also clear from the subsection’s direction that the Director focus squarely on the materials provided to him by the parties that he is precluded from conducting his own investigation.
[71] The Applicant also argues that the Director’s decision breached ss. 59(1) and 60(3)(c) of the PSA. Neither of these subsections apply at the review stage. Section 59(1) of the PSA simply provides for the Director’s screening function. Section 60(3)(c) of the PSA indicates that the Director may screen out a complaint where he determines it is not in the “public interest” for it to be investigated. In this case, however, the Director considered that it was in the public interest for the Applicant’s complaint to be investigated. He therefore performed the very duty the Applicant alleges that he breached when he referred the matter for investigation. The alternative would have been to screen out the Applicant’s complaint pursuant to s. 60 of the PSA. . Murray v. Independent Police Review Director (Ontario)
In Murray v. Independent Police Review Director (Ontario) (Div Court, 2023) the Divisional Court considered a complainant's concern that evidence submitted in an OIPRD complaint could be used against them in other proceedings:The Applicant’s Concerns About Potential Uses of the OPP Report
[19] In this court’s r.2.1 decision in this case (2022 ONSC 7255, para. 11), the court identified a concern raised by the applicant as follows: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. [20] This court now has the benefit of the respondents’ submissions on this point and is satisfied that these concerns are misconceived. The PSA contains sections both of specific application to the OIPRD, and of general application to “every person engaged in the administration of” Part V of the PSA – “Complaints and Disciplinary Proceedings”:
Section 26.1 of the PSA provides:(9) The Independent Police Review Director, any employee in the office of the Independent Police Review Director, any investigator appointed under subsection 26.5(1) and any person exercising powers or performing duties at the direction of the Independent Police Review Director shall preserve secrecy in respect of all information obtained in the course of his or her duties under this Act and shall not communicate any such information to any person except, (a) as may be required in connection with the administration of this Act and the regulations; (b) to his or her counsel; (c) as may be required for law enforcement purposes; or (d) with the consent of the person, if any, to whom the information relates.
(10) The Independent Police Review Director, an employee in the office of the Independent Police Review Director, an investigator appointed under subsection 26.5(1) or a person exercising powers or performing duties at the direction of the Independent Police Review Director shall not be required to give testimony in a civil proceeding with regard to information obtained in the course of his or her duties, except at a hearing held under Part V.
(11) A document prepared in the course of his or her duties under this Act by the Independent Police Review Director, an employee in the office of the Independent Police Review Director, an investigator appointed under subsection 26.5(1) or a person exercising powers or performing duties at the direction of the Independent Police Review Director is not admissible in a civil proceeding, except at a hearing held under Part V…. Section 83 of the PSA provides:(7) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties under this Part, except at a hearing held under this Part.
(8) No document prepared as the result of a complaint made under this Part is admissible in a civil proceeding, except at a hearing held under this Part. Section 95 of the PSA provides:Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except, (a) as may be required in connection with the administration of this Act and the regulations; (b) to his or her counsel; (c) as may be required for law enforcement purposes; or (d) with the consent of the person, if any, to whom the information relates. [21] These provisions have been interpreted to mean that information gathered in the course of an investigation directed by the OIPRD, including an investigative report, are not admissible in a civil action or a proceeding before the Human Rights Tribunal of Ontario: Hewitt v. Doyle, 2021 ONSC 6655, paras. 6, 19 and 28; Sanaee v Grad, 2016 ONSC 4718, para. 6; Koroma v Peel (Regional Municipality) Police Services Board, 2017 HRTO 1248, para. 28; Fields v Ontario (Ministry of Community Safety and Correctional Services), 2018 HRTO 55, para. 28
[22] In light of these provisions, we are satisfied that the OPP Report may not be used against Ms Murray in other legal proceedings, and thus that the prospect of such use does not give rise to “exceptional circumstances” that could lead this court to hear an application that is moot or premature. . Murray v. Independent Police Review Director (Ontario)
In Murray v. Independent Police Review Director (Ontario) (Div Court, 2023) the Divisional Court considered particularly unusual provisions that may be described as 'statutory mootness' on a complaint upon a police officer's resignation, provisions that are themselves subject to an equally-unusual statutory five-year extension if the officer is re-hired as a police officer:[14] The applicant’s complaint was found to be unsubstantiated by the Chief of the Windsor Police Service. The applicant then asked the OIPRD to conduct a review of that decision pursuant to section 71 of the PSA. That review had to be stopped pursuant to section 90 of the PSA, because the subject officers resigned on August 9, 2022 and October 12, 2022 and the OIPRD therefore lost jurisdiction over the complaints.
[15] Section 90 of the PSA states:(1) If at any time after a complaint about the conduct of a police officer is made under this Part and before the complaint is finally disposed of the police officer resigns, no further action shall be taken under this Part in respect of the complaint after the date of resignation.
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(3) Despite subsection (1), if the police officer who resigned is employed by a police force within five years of the date of resignation, this Part shall apply to the police officer in accordance with the regulations.
(4) In the circumstances described in subsection (3), if the police officer is employed with a police force other than the police force from which he or she resigned, the police officer is deemed, for the purposes of the complaints process under this Part, to be employed with the police force from which he or she resigned, except that an action that shall be taken with respect to the matter by a chief of police under subsection 84 (1) or by a board under subsection 84 (2) or 85 (3) after the complaints process is resumed shall be taken by the chief of police or board, as the case may be, of the police force in which the police officer is employed following the resignation. [16] If a subject officer resigns before a complaint is finally disposed of, section 90 requires that the complaint process will be stopped at whatever stage it has reached as of the date of the resignation. However, that complaint may be restarted if the subject officer becomes employed as a police officer with any police service in Ontario within five years of his or her resignation. In this case, the five years will not elapse until August and October 2027.
[17] Thus, the process below is effectively in abeyance, but could resume if either of the subject officers becomes employed as a police officer with any police service in Ontario during the five-year period specified in s. 90 of the PSA. Until the process below resumes, or the five-year period runs its course, the process below has not been completed, and recourse to this court is premature: Kahissay v. Insurance, 2023 ONSC 3650 (Div. Ct.) and Awada v. Allstate Insurance Company, 2021 ONSC 8108 (Div. Ct.); see also Ontario (Liquor Control Board) v. Lifford Wine Agencies Ltd. (2005), 2005 CanLII 25179 (ON CA), 76 OR (3d) 401 (CA); Aon Inc. v. Towerhill Developments Inc., [2010] O.J. No. 2698 (Div. Ct.).
[18] If either of the subject police officers becomes employed as a police officer before the five-year period has expired, then the process below will resume before the OIPRD. If this employment does not happen, then we agree with the submissions of the Chief of the Windsor Police Service that the application will be moot: the subject officers cannot be disciplined once they have left their employment as police officers, and thus there is nothing left to adjudicate before the OIPRD or before this court. . Murray v. Independent Police Review Director (Ontario)
In Murray v. Independent Police Review Director (Ontario) (Div Court, 2023) the Divisional Court briefly sets out procedures following an OPIRD referral of a public complaint for investigation:[4] The decision below is that of the Windsor Chief of Police, dismissing Ms Murray’s complaint as unsubstantiated. The basis for this conclusion is set out in the OPP investigative report submitted to the Windsor Chief of Police pursuant to ss. 66 and 67(2) of the Police Services Act, RSO 1990, c. P.15 (the “PSA” or the “Act”).
[5] Ms Murray challenged this decision to the OIPRD, as was her right. The OIPRD agreed to review the impugned decision. Then, before this review was completed, the police officers who were the subject-matter of the complaint left their employment as police officers. The OIPRD advised Ms Murray of this and advised that it had no jurisdiction to continue further with its review since there was no police officer still employed whose conduct could be the subject-matter of a complaint process.
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[10] When the OIPRD refers a complaint by a member of the public for investigation by a police service, the professional standards unit (PSU) of that police service investigates the complaint and prepares an investigative report. The investigative report, which contains the PSU’s recommendations regarding the disposition of the complaint, is given to the Chief of the police service to which the subject officer belongs. The Chief then decides whether to adopt the findings in the investigative report. The final decision regarding whether misconduct has been committed by the subject officers (whether the complaint is “substantiated” or “unsubstantiated”) is therefore that of the Chief.
[11] In this matter, the OIPRD referred the investigation of the complaint to the OPP. At the conclusion of the OPP’s investigation, the OPP’s Report was sent to the Chief of the Windsor Police Service to make a final determination of whether the applicant’s allegations were substantiated or unsubstantiated. The Chief determined that they were unsubstantiated.
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