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Police - Police Conduct. Liu v. London Police Service [discretion]
In Liu v. London Police Service (Div Court, 2024) the Divisional Court considers police investigative - and other professional - discretion:[27] In its decision, the Complaints Director noted that the law is settled that police officers are entitled to use their discretion in the course of their duties. This exercise of discretion extends to their investigations and their decisions regarding the arrest of suspects and/or the laying of charges. Provided they act in good faith and within the bounds of reasonableness, an officer’s legitimate exercise of discretion cannot be considered misconduct: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para. 73. . Rossi v. OIPRD
In Rossi v. OIPRD (Div Court, 2024) the Divisional Court dismissed a JR challenging an OIPRD decision which upheld the dismissal of a police chief against their officers.
The court holds that complaints regarding police not enforcing COVID rules could have been brought in the course of family law proceedings:Complaint #3: Investigation of Alleged Non-compliance with COVID-19 Requirements
[33] The Applicant complained that other antagonists in the family law conflict failed to respect COVID-19 regulations, placing children at risk.
[34] Police investigated these allegations and concluded that there were no reasonable and probable grounds to lay charges.
[35] The Applicant argues that the police investigation was incompetent, relied on the wrong regulations, and got important details of events wrong.
[36] It would have been within police discretion to decline to investigate the Applicant’s allegations on the basis that the issue could and should have been dealt with more appropriately in the family law courts. Further, “enforcement” (that is, laying charges) was a “last resort” when addressing non-compliance with COVID-19 protocols and regulations, and the circumstances of the Applicant’s allegations, on their face, were matters where police would be expected to do no more than issue a warning and discuss the requirements with someone who had failed to comply. The Respondent was reasonable in concluding that the police officer carried out the investigation in a lawful and professional manner and there was insufficient evidence to establish reasonable grounds that any misconduct occurred. . Rossi v. OIPRD
In Rossi v. OIPRD (Div Court, 2024) the Divisional Court dismissed a JR challenging an OIPRD decision which upheld the dismissal of a police chief against their officers.
The court cites standards expected for police conduct:[3] As found below, the subject officers were required to exercise their discretion multiple times while trying to keep the peace and promote more reasonable behaviour among the protagonists. Police have discretion about the manner in which they respond to a given situation; there is no single correct way in which police must respond: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41.
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[24] Police are not required to “exhaust all possible routes of investigation or inquiry” (495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, para. 52. Police resources are limited, and there is nothing unreasonable in the overall circumstances in the police decision not to investigate the incorrect name further when it was brought to their attention 14 months after the fact. The Respondent’s decision to this effect is reasonable.
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[39] As noted in the decision below, “the standard in reviewing an officer’s decision is that of a reasonable officer, judged in the circumstances at the time the decision was made” (Decision, p. 11). The Respondent found that the officers’ decisions fell well within this standard, and on the record below that conclusion is reasonable. The application is dismissed. . Rivard v. Kingston Police
In Rivard v. Kingston Police (Div Court, 2023) the Divisional Court considered an appeal (with leave) of an interlocutory order dismissing a "motion to strike out an amended statement of claim" under R21.01(1)(b) ['no reasonable cause of action or defence'] and R25.11 ['Striking out a Pleading or Other Document'].
In these quotes, the court considers a police assault lawsuit - here on the issue of proper pleadings for such an action:The Chief
[34] The Defendants rely upon two decisions of the Ontario Superior Court: Bilotta et. al. v. Barrie Police Services Board et. al., 2010 ONSC 4457 and Romagnuolo v. Hoskin, [2001] O.J. No. 3537 (S.C.). Both are “police cases” wherein the respective motion judges granted the defendants’ motions to strike out portions of the pleadings containing allegations similar to those found in the present pleading. In Romagnuolo, Keenan J. noted that if a plaintiff does not have knowledge of the material facts giving rise to the allegations, then it is inappropriate for the allegations to be in the Statement of Claim.
[35] In Bilotta, the first motions judge had struck certain portions of the claim but granted leave to amend. The second motions judge, at para. 14, held that the allegation of negligent hiring by the police force was “inadequately pleaded because it is not supported by any material facts sufficient to identify why, at the time of hiring, the Board was negligent.”
[36] With respect, I do not find these authorities to be persuasive or dispositive in respect of this pleading as it pertains to the Defendant Chief. The governing authority for pleadings in police cases is Odhavji. Like the court in Dawson, I find that the decisions in Odhavji ONCA and Odhavji SCC support the principle that a police commissioner or police chief’s duty of care for negligent supervision or training can be based on a pleading which alleges personal liability for a breach of his or her obligations of training or supervision under the PSA.
[37] In the case at bar, subject to what is set out below, I am satisfied that the pleading meets the threshold of a valid pleading as against the Defendants: it sets out the relief claimed; it describes the incident giving rise to the claim; and it describes in detail the altercation between the Plaintiff and the police officers which led to the injuries allegedly sustained.
[38] In addition, the allegations in support of liability against the Chief for failure to properly train, control, regulate or supervise his officers contain sufficient material facts for the Chief to understand the “what, when and why” of a potential finding of liability against him. If the material facts in those paragraphs are proven, then there would exist a basis upon which a trier of fact could conclude that the Chief breached a duty of care to the Plaintiff as a member of the public in the discharge of his statutory duties under the PSA.
[39] Finally, if the Chief and the Board have supported or followed policies that have encouraged or allowed a systemic culture or environment that encourages police brutality and Charter infringements, these would be material facts which could support the cause of action set in paragraph 1(c) of the pleading. It is not plain and obvious that this claim would not succeed.
Findings and Inferences
[40] I do not agree that the motion judge fell into reversible error by considering what findings or inferences could be made at trial or by referring to the factual findings made by the criminal court judge. In so doing, the motion judge was addressing the Appellants’ contention that the pleadings were boiler plate or general allegations. The motion judge was careful to stay within the parameters of the applicable test which led him to conclude that, “Those material facts could lead to a finding at trial in the civil action that the officers conduct was both grossly assaultive, and abusive and could be the result of a systemic issue within the police department”. And while strictly speaking, this aspect of the motion judge’s method of analysis was possibly misplaced, it did not in my view deflect the motion judge from applying the appropriate test to the impugned pleading, which led him to conclude that, “There are sufficient material facts disclosed that are capable of supporting the constituent elements of the causes of action against both the Chief of Police and the Board.”
The Board
[41] The pleading does, however, run afoul of the law as set out in Odhavji SCC, that no cause of action lies against a police services board for matters relating to the operational functions of a police force.
[42] At paras. 64-65 of Odhavji SCC, Iacobucci J. stated as follows:Unlike the Chief, the Board does not directly involve itself in the day-to-day conduct of police officers, but, rather, implements general policy and monitors the performance of the various chiefs of police. The Board does not supervise members of the force, but, rather, supervises the Chief (who, in turn, supervises members of the force). This lack of involvement in the day-to-day conduct of the police force weakens substantially the nexus between the Board and members of the public injured as a consequence of police misconduct.
... Under s. 31(1), the Board is responsible for the provision of adequate and effective police services, but it is not under an express obligation to ensure that members of the force carry out their duties in accordance with the Police Services Act. The absence of such an obligation is consistent with the general tenor of s. 31(1), which provides the Board with a broad degree of discretion to determine the policies and procedures that are necessary to provide adequate and effective police services. A few enumerated exceptions aside, the Board is free to determine what objectives to pursue, and what policies to enact in pursuit of those objectives. [43] This articulation of the law was taken up by the Court of Appeal for Ontario in Miguna v. Toronto Police Services Board, 2008 ONCA 799, 301 D.L.R. (4th) 540, at para. 89, where Blair J. stated as follows:[A] Police Services Board cannot perform or be held responsible for operational functions of a police force. Such matters are the responsibility of the Chief of Police. The Board has no authority to supervise the Police Defendants, although it does direct the Chief of Police and monitor his or her performance. It is precluded from giving directions to the Chief with respect to specific operational decisions or with respect to the day-to-day operation of the police force. [Citations omitted.] [44] Having correctly cited the law in Bilotta, Boswell J. went on to apply it to the pleading before him. In doing so, he concluded at para. 13, “The Plaintiffs’ allegations against the Board relate, in my view, to shortcomings in operational functions, which are not, in law, the responsibility of the Board.”
[45] A similar analysis leads me to conclude the same about the pleading before the court. Training and supervision of officers, ensuring that they comply with standards of conduct, gauging those officers’ fitness and competence for carrying out police duties: these are all day-to-day and operational functions which lie within the duties of the Chief and beyond the purview of the Board. It follows that alleging facts which seek to establish that the Board failed in its duty of care to discharge such duties and obligations cannot support a recognizable cause of action. A duty of care which does not exist at law cannot be pleaded into existence by allegations of material facts, however earnest and detailed.
[46] Save for what is set out below, the same cannot be said about the balance of the allegations against the Board. The reasoning in Odhavji SCC would allow those allegations to survive because they comply with the law of pleadings in setting out material facts. If proven, such material facts would tend to prove that the Board enacted, maintained, or promoted policies which caused, allowed or permitted the systemic problems to arise, exist and persist. To be sure, the allegations which support this cause of action are imperfect, but they do cross the low threshold to warrant survival. . Korchinski v Office of the Independent Police Review Director
In Korchinski v Office of the Independent Police Review Director (Div Court, 2022) the Divisional Court briefly states the function of the OIPRD, and considers some standards of police conduct:[6] The OIPRD is the statutory body responsible for receiving, managing and overseeing all complaints made by members of the public about the conduct of police officers in Ontario. Any investigation it conducts seeks to determine whether there are reasonable grounds upon which to believe that an officer committed misconduct, as defined in the PSA Code of Conduct.
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[42] To establish Neglect of Duty, the evidence must prove: (i) a duty existed; (ii) the officer failed to discharge the relevant duty promptly and diligently; and (iii) there is no lawful excuse, good or sufficient cause or adequate reason to excuse the failure to discharge the duty (Provincial Constable K.M. Soley and the Ontario Provincial Police, 1996 CanLII 17303 (ON CPC) at paras 12 and 13).
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D. Deceit
[75] A police officer commits deceit if he or she willfully or negligently makes a false, misleading or inaccurate statement pertaining to their official duties. However, an inaccurate statement by itself, in the absence of proof of willfulness or intent to mislead, will not support a conviction (Cate v Peel Regional Police Service, 2002 CanLII 74564 (ON CPC) at para. 41; Rollins v. PC W.J (Wayne) Desjardins and Ontario Provincial Police Service, 2020 ONCPC 10 (CanLII) at para 11).
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