DAVID FINEDAY Applicant - v. -, 2024 SKKB 6

KING’S BENCH FOR SASKATCHEWAN Citation: 2024 SKKB 6 Date: 2024 01 17 Docket: QBG-SA-00432-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: DAVID FINEDAY Applicant - and - PUBLIC COMPLAINTS COMMISSION and THE CHIEF OF POLICE OF THE SASKATOON POLICE SERVICE Respondents Counsel: Nicholas R. Blenkinsop for the applicant Laura M. Mazenc for the respondent, Public Complaints Commission Ashley M.

Smith, K.C. for the respondent, Chief of Police of the Saskatoon Police Service ___________________________________________________________________________ FIAT GERECKE J. January 17, 2024 ___________________________________________________________________________ OVERVIEW [ 1 ] David Fineday seeks judicial review of the Public Complaints Commission’s [PCC]

summary dismissal of his complaint regarding his treatment by members of the Saskatoon Police Service [SPS]. This is a preliminary application concerning the judicial review. I am to determine its scope along with what disclosure, if any, must be provided to Mr. Fineday. [ 2 ] Mr. Fineday’s view of the proper scope is best understood through the following passage from a brief filed on his behalf: 4. … [T]he context for this question and the importance of processes of police oversight for countries claiming to be governed by the Rule of Law needs to be considered.

In a time when the role of police in our society and others similarly situated is being challenged through public discourse in relation to the use of force by police and by movements such as Black and Indigenous Lives Matter the question of the ambit and fulsome judicial oversight of police oversight processes has particular importance. [ 3 ] He is an older Indigenous man who lives in Saskatoon, Saskatchewan. He is blind. He was hosting a handful of friends in his apartment to celebrate a neighbour’s birthday. He had been drinking, though perhaps not a lot. For reasons unknown to the Court, police were called.

Mr. Fineday went into the corridor to talk with police, who explained they had received a complaint about a disturbance. Four police officers were present. They took his cane, handcuffed him, and arrested him. Once in the police cruiser, he realized he needed to urinate and asked officers to give him that opportunity. They said no, and he was forced to urinate in his clothes in the cruiser. He was taken to a cell at the SPS in downtown Saskatoon. His cane was not returned, and he spent the night in the cell. He had no blanket. He slept on the floor in a T-shirt and underwear, having removed his wet pants.

He was released the next morning. His cane was returned, but officers refused to transport him home. He walked to a provincial building that was a block or two away where he was able to have a taxi called. [ 4 ] As noted, Mr. Fineday lodged a complaint with the PCC, alleging that police abused their authority. After conducting an investigation, the PCC sent Mr. Fineday a short letter [ Decision ] dated November 1, 2021, concluding that the officers had lawfully executed their duties and committed no misconduct, and that no further action should be taken. Mr. Fineday’s application is to review the Decision .

Among other remedies, he asks for the Court to substitute its decision for that of the PCC or to remit to a differently constituted PCC panel. He contends that the Court has jurisdiction to review the Decision as to its merits. In a closely related issue, he argues that the Court can and should order the PCC to disclose its file as the record for the review. [ 5 ] The PCC takes a largely neutral stance. It will do what the Court orders it to do. Its main position is that the Court should be cautious as to an order to produce its file.

The availability of that material is very much in issue before the Court, as The

Police Act, 1990 , SS 1990-91, c P-15.01 [ Act ], contains provisions that make material received by a PCC from a police service confidential (ss. 39(5) and (7)). [ 6 ] The parties also raise questions about the status of the Chief of the SPS [Chief]. The SPS, or its Chief, would not necessarily have standing on such a review, though I am not deciding that. To their credit, counsel for Mr. Fineday recognized that the PCC might take the approach it did, and that the SPS would be better positioned to offer vigorous opposition to his application.

It mainly was the Chief who advanced opposing positions here, so that proved accurate. For the purpose of this preliminary application, I determined during oral argument that any decisions on the Chief’s standing were better made later in the proceedings, assuming that became necessary. [ 7 ] For the reasons that follow, I conclude that the scope of judicial review sought by Mr. Fineday is unavailable in light of provisions of the Act and recent jurisprudence in similar contexts. [ 8 ] The only review potentially available is on questions of procedural fairness.

As I explain below, the Court of Appeal recently characterized that as an open question. Mr. Fineday also seeks to challenge whether sufficient reasons were provided for the dismissal of his complaint. However, I did not receive argument on whether sufficiency of reasons is an issue of procedural fairness. On that point I will invite further submissions if Mr. Fineday wishes to provide them. [ 9 ] The disclosure issue raised by Mr. Fineday would become moot if there is no basis on which Mr. Fineday can pursue judicial review so I will not decide it unless I receive those submissions on sufficiency of reasons.

PROCEDURAL MATTERS [ 10 ] Elson J. and Currie J. encountered this matter before it came before me. Elson J.’s fiat dated July 15, 2022 ( Fineday v Public Complaints Commission (15 July 2022) Saskatoon, QBG-SA-00432-2022 (Sask QB)) [ Elson Fiat ], addressed matters raised by General Application Practice Directive #9 [GA-PD #9].

It assessed readiness to proceed and attempted to determine what preliminary matters would need to be determined to allow the main application to be heard. [ 11 ] The matter then came before Currie J. who determined that the availability of judicial review should be the first issue determined ( Fineday v Public Complaints Commission (19 April 2023) Saskatoon, QBG-SA-00432-2022 (Sask KB)). He adjourned the matter for two weeks.

Then the parties came before me ready to argue that issue of whether judicial review is available at all. [ 12 ] At the outset of the hearing before me, I canvassed the parties as to what preliminary issues needed to be determined before a hearing could proceed. Although there were discussions about the Chief’s standing, that was not argued in a meaningful way, so I will not decide that.

The parties were fully prepared to argue concerning availability of the PCC’s file as a record of proceedings, and my view was that it would add a step to delay argument on it, so I heard submissions on that. [ 13 ] No separate notice of application or originating notice was filed concerning the matters I decide. Those issues arise from the Elson Fiat and the parties’ preliminary discussions. As part of preliminary discussions with the parties, it was agreed that the Chief would proceed first with argument. I do not view onus as an important consideration here. [ 14 ] As well, Mr.

Fineday filed an affidavit between the appearance before Currie J. and when I heard the preliminary matters. The Chief applies to strike the affidavit in its entirety. I will address that first. PCC DECISION [ 15 ] Other than Mr. Fineday’s affidavit, the PCC Decision comprises the entirety of the record filed with the Court. Because of that, it is appropriate that I reproduce it in full: The review of the investigation of your public complaint concerning the Saskatoon Police Service (SPS) is now complete.

The Public Complaints Commission (PCC) is an independent authority established by The Police Act, 1990 to deal with complaints related to the actions of police officers appointed under The Act . The PCC’s role is to ensure that both the public and the police are provided an impartial and thorough review of a complaint about the police. Your complaint relates to the actions of SPS officers on April 18, 2021. You submitted a complaint through the FSIN, alleging SPS officers abused their power when they arrested you.

You alleged that SPS officers would not let you use the washroom upon your arrest, causing you to urinate on yourself. You stated you are legally blind and SPS officers did not provide your walking stick to you while lodge in an SPS cell. You were lodged in the cell in your urine-soaked clothing and were not offered a change of clothing. Upon your release, your walking stick was returned; however, you were not provided any means of transportation or the opportunity to contact someone for a ride to your residence.

On April 18, 2021, you stated, you invited friends and family to your apartment for a drink to celebrate your friend’s birthday. Shortly after the arrival of your friends, you heard a commotion in the hallway and went to the hallway to investigate. You observed four SPS officers in the hallway, and you spoke to the SPS officers. The SPS officers informed you that they were investigating an allegation that you threatened to cause bodily harm to an individual.

You alleged an SPS officer took away your walking stick and you were arrested for “public nuisance.” You were handcuffed and escorted outside, where you were searched and placed into the rear of an SPS cruiser. You stated you remained in the rear of the SPS cruiser for 15 to 20 minutes before being taken to the SPS cells. Upon your release the following morning and due to your disability, you asked SPS for a ride to your residence. You were not provided a ride to your home.

SPS reports, officers’ notes and audio recordings have been reviewed. You provided an interview to the PCC investigator, and SPS in-car-camera (ICCS), Detention Centre video footage and an SPS Communications recording were reviewed. It was determined SPS officers attended your building to answer a call for service. An individual contracted SPS to report that you were intoxicated, aggressive and threatened the individual. Upon speaking to you, SPS officers noted your behaviour and that you appeared to be intoxicated. SPS officers attempted to calm you down and to have you remain in your residence.

When you failed to calm down and lower your voice, SPS officers arrested you for the offence of public intoxication. SPS officers handcuffed you and escorted you out of the building. At the cruiser, you were searched and placed into the rear of an SPS cruiser. You requested to use the washroom or to have the officer open the door so you could urinate. SPS officers did not open the door, and this caused you to urinate on yourself. The SPS officers spoke to you, advised you of your Charter rights and cautioned you. You were transported to SPS Detention and were lodged in a cell.

You were not provided with your waking stick or a change of clothes. Upon your release, you were provided a change of pants and were escorted out of SPS Detention. Although the ICCS footage does not cover the entire incident, it does cover your exiting of the apartment. The video shows the SPS officers did not manhandle you down the stairs to the SPS cruiser. There were SPS officers on either side of you, and you were allowed to walk at your own pace. An SPS officer can be seen carrying your walking stick. The officers are calm and professional when escorting you to the SPS cruiser.

It was determined that you were not sitting in the rear of the SPS cruiser for 15 to 20 minutes before being transported to SPS Detention. Viewing the ICCS footage, you were in the rear of the SPS cruiser for three minutes before the SPS cruiser departed. During your time in the rear of the SPS cruiser, you can be heard informing the SPS officers that you have to urinate. You requested the SPS officers open the door of the cruiser and allow you to urinate. The officers could not let you urinate in the middle of the road or on the sidewalk.

Regrettably, you had to urinate on yourself while in the rear of the cruiser. When lodged in the cell, you were not allowed to take your walking stick or provided a change of pants due to your being wet. These issues are related to the SPS policy currently in place. The PCC does not have jurisdiction to change or order SPS to change its policies. Upon your release, you requested transportation from SPS to your residence, and this was denied. The SPS Chief of Police noted this and has taken steps to ensure the safety and well-being of individuals released from custody.

The SPS has changed its policy to prevent a similar situation from occurring. The PCC is satisfied your concerns have been thoroughly and impartially investigated and reviewed. The PCC has determined that SPS officers were in the lawful execution of their duties and did not commit any misconduct. Your complaint is focused on SPS policies involving possession of your walking stick in the cell and being lodged in wet pants. I suggest you document your concerns and suggestions and forward them to the SPS Chief of Police.

Your concern regarding transportation upon being released has been addressed, and the SPS has implemented a new policy. The PCC has concluded this matter as terminated, and no further action will be taken. [ 16 ] During argument, PCC counsel confirmed for the Court that the PCC terminated the investigation pursuant to s. 45(5) (

b) of the Act . Section 45(5) (

b) authorizes the PCC to direct that an investigation be terminated if the PCC is of the opinion that the complaint is “trivial, frivolous, vexatious, unfounded or made in bad faith”. The Decision does not specify which of those grounds the PCC relied on. ISSUES [ 17 ] The issues to be determined are: 1. Should Mr. Fineday’s affidavit be struck in whole or in part? 2. Does Mr. Fineday have standing to apply for judicial review of the Decision on its merits? 3. Does Mr. Fineday have standing to apply for judicial review in respect of adequacy of reasons? 4. Should the Court order that disclosure be provided to Mr.

Fineday? ANALYSIS Issue #1 Should Mr. Fineday’s affidavit be struck in whole or in part? [ 18 ] The Chief contends that the affidavit should be struck in its entirety, on two primary grounds. First, affidavits are generally admissible because judicial reviews are to be conducted on the record of proceedings. Second, Mr. Fineday’s affidavit contains hearsay evidence, and judicial review is an application for a final order where evidence must be confined to the deponent’s personal knowledge. [ 19 ] At least for now, Mr.

Fineday says that the affidavit is intended only for use in this preliminary application to give the Court enough information to determine the issue of his standing. He views its filing as necessary because the PCC and the Chief resist filing the record. He acknowledges that it contains improper hearsay that should be struck. [ 20 ] The affidavit was also filed late, only three days before I heard argument. Although that is irregular pursuant to Rule 3-50 of The King’s Bench Rules , and the Chief was pressed to file an application within the brief time available, I do not view the

respondents as having suffered much prejudice. I will permit the late filing of the affidavit. [ 21 ] I conclude that Mr. Fineday’s affidavit should not be struck in its entirety because at least part of it is necessary for the Court to properly decide these preliminary issues. For example, his complaint to the PCC [complaint] did not come onto the Court file until it was attached as an exhibit to the affidavit. [ 22 ] In general, judicial review should be conducted solely on the basis of the record before the tribunal whose decision is under review. However, exceptions exist.

Among other reasons, evidence may properly be received to provide general background, and to highlight procedural defects not apparent from the record. In Hartwig v Commission of Inquiry into matters relating to the death of Neil Stonechild , 2007 SKCA 74 , 284 DLR (4th) 268 , and Saskatchewan (Workers’ Compensation Board) v Gjerde , 2016 SKCA 30 , 395 DLR (4th) 331 , the Court of Appeal recognized a further exception where a reviewing court may receive evidence to establish the record on which the tribunal’s reasons were based. [ 23 ] At this point, no record has been filed.

Even the Decision was not formally filed; the Chief filed a copy as an attachment to his brief. The PCC filed no documents that could represent even a portion of a record of proceedings. At least the complaint and the Decision needed to be filed to consider even the preliminary questions. In my view the PCC was the party responsible to file those, but it did not do so. Mr.

Fineday cannot be criticized for concluding that he needed to make and file an affidavit. [ 24 ] Accordingly, I conclude that, as evidence concerning the matters that were before the PCC, the affidavit is appropriately considered by the Court. [ 25 ] Are there portions of the affidavit that should be struck? In my view, there are. Portions of the affidavit are speculative, opinion, argument or hearsay and, as such, should be struck pursuant to Rule 13-30. I will strike only the clearly offending portions, though it would have been preferable for Mr.

Fineday’s counsel to have restricted the affidavit to what was truly necessary. Parties on judicial review applications who file affidavits are at greater risk of them being struck entirely if they do not show restraint in what evidence is provided. The lack of a record does not make it “open season” for a party to tell more story than needed. [ 26 ] I direct that the following portions of the affidavit be struck: a. Second sentence of paragraph 33 and Exhibit “B” (transcript of interview of Mr. Fineday by PCC investigator). The respondents expressed dismay that the interview transcript even came to be in Mr.

Fineday’s possession. The affidavit does not identify the source of the transcript. It may properly be a restricted document. In any event its author is not identified, and the document’s header states that it is provided as an aid only, as a transcript of audio statements. It is not certified, and no one has attested to its accuracy. As such, it is inadmissible hearsay. b. Paragraph 35 is hearsay and/or speculation and is struck. c. No information from the PCC’s files or Mr. Clee (the PCC investigator) is admissible. All of it is hearsay.

As well, the following affidavit portions go beyond the limited exception for extrinsic evidence that the Court of Appeal has considered admissible. Particularly objectionable is the reproduction of what Mr. Fineday avers to be comments by Mr. Clee to Mr. Blenkinsop. For those reasons, paragraphs 37 through 40 are struck in their entirety. d. Paragraphs 44 and 45 are struck as opinion and argument. [ 27 ] On an application to strike an affidavit, the Court should give consideration to costs. In this case, success has been mixed.

Because I conclude that some affidavit was necessary to get the complaint before the Court, Mr. Fineday should not be ordered to pay costs. At the same time, his affidavit crossed the line in several respects, so he should not be awarded costs. [ 28 ] No costs shall be payable by any party in respect of the application to strike the affidavit. Issue #2 Does Mr. Fineday have standing to apply for judicial review of the Decision on its merits? [ 29 ] The Chief opposes standing for Mr. Fineday, while the PCC takes no position on this question. [ 30 ] In arguing for standing, Mr.

Fineday advances positions concerning public intoxication, whether his apartment hallway was a public place, whether police had grounds to arrest him (particularly as an older blind person), and whether police carried out the appropriate investigation to determine whether someone was willing and able to take care of Mr. Fineday. He weaves those issues together to assert a claim for both private and public interest standing. He characterizes the standing opposed by the Chief as private interest standing. He frames the issues as follows in his brief: 27.

As will be argued more extensively below, the structure of the public complaint process as detailed in The Police Act, 1990 , is different. There is a separation between the investigative decision-making process and the disciplinary or other process which derive therefrom. 28. Given the case-law in this area, this Court in working to determine the scope of the private interest standing of Mr. Fineday to bring this judicial review, must consider the difference between the processes as set out above and the decision-making process created by The Police Act, 1990 .

The differences between those other situations and the present one gives rise to two issues: a. Are police oversight processes generally; The structure of the complaint process in The Police Act, 1990 ; and the issues begin [ sic ] dealt with in this judicial review in particular; of a kind which distinguishes this situation from that of a “self-regulating profession” such that Mr. Fineday enjoys private interest standing? b.

Is the nature of the situation of the complainant, whether given the participatory role set out in The Police Act, 1990 , or because of the interests that are otherwise at stake in this judicial review, or both, one that accords Mr. Fineday private interest standing?

29. In addition to the issues relating to private interest standing as set out above a third issue must be considered by this Court. If it isfound that Mr. Fineday does not enjoy private interest standing, does Mr. Fineday enjoy public interest standing to bring this judicialreview? [31] The Chief says that no standing is available to Mr. Fineday to seek judicial review as to the merits of theDecision.

The Chief’s stance relies largely on two recent Court of Appeal decisions that I discuss below, along with references tolegislation and caselaw from other provinces. [32] In my opinion, I need not delve into how such issues are approached by legislatures and courts in otherprovinces. Saskatchewan legislation and caselaw answer the questions raised by Mr. Fineday in clear fashion. [33] I find that Mr. Fineday does not have standing to seek judicial review on the merits of the Decision, i.e., as to itsreasonableness.

Though in the context of governance of engineers and nurses, I am satisfied that recent Court of Appeal jurisprudenceapplies to bar judicial review of the Decision except with respect to procedural fairness questions. [34] To analyze this question, it is important to understand the type of administrative proceeding that Mr. Fineday’scomplaint initiated, and his role in it. The subject of a complaint, i.e., the person who would be subject to discipline, is viewed differentlythan the person making the complaint.

The person subject to discipline is frequently a “member” of an organization, such as aprofessional body. In this case, that would be the members of the SPS about whom Mr. Fineday made his complaint. The Act refers tosuch individuals as members so from this point I will use the term “member” to refer to them.

A complainant might also be a member,but that is not the case here or in the decisions I will cite. [35] The two leading Saskatchewan cases that potentially govern this application are Cameron v The Association ofProfessional Engineers and Geoscientists of Saskatchewan, 2022 SKCA 118 [Cameron], and Toutsaint v Investigation Committee of TheSaskatchewan Registered Nurses’ Association, 2023 SKCA 11 [Toutsaint], leave to appeal to SCC denied, (SCC). [36] In Cameron, a non-engineer, complained to the Association of Professional Engineers and Geoscientists ofSaskatchewan [APEGS] about the conduct of two engineers. Dr.

Cameron sought disclosure of materials that the APEGS Council reliedon in recommending that no further action be taken in respect of his complaints, and then applied for judicial review when the Councildenied his request for disclosure. His application to this Court was dismissed on the basis that he lacked standing to challenge theCouncil’s decision on the merits and could only raise issues of procedural fairness (Cameron v The Association of ProfessionalEngineers and Geoscientists of Saskatchewan, 2021 SKQB 318).

His appeal was dismissed by the Court of Appeal. [37] Toutsaint involved a complaint made by a federal penitentiary inmate concerning the conduct of a nurse whoprovided care to him. Mr. Toutsaint made the complaint to the Saskatchewan Registered Nurses’ Association [SRNA]. The complaintwas dismissed at the investigation committee stage. Dissatisfied with the outcome, he applied to this Court for judicial review (Toutsaintv Investigation Committee of The Saskatchewan Registered Nurses’ Association, 2021 SKQB 315). Still dissatisfied, he appealed to theCourt of Appeal.

A majority of the court upheld the conclusion of the chambers judge that Mr. Toutsaint lacked standing to seek judicialreview on the merits. [38] When a complaint is made that could have disciplinary consequences, the implications for a member may besevere. The member’s career could be impacted or even ended. Under the Act, a complaint that involves an offence could result incriminal prosecution. Full judicial review of a decision is generally available to a member who is the subject of a complaint. [39] In contrast, a complainant is treated by the law as external to the complaint.

From the complainant’s own pointof view, that may seem wrong or even offensive. The issue about which they complain is something that happened to them. Nonetheless,the pattern in Saskatchewan legislation is that only limited standing is granted to a complainant in the investigative and disciplinarystages.

More particularly, where a complaint is dismissed during or after an investigation/screening phase, the complainant lacksstanding to seek review. [40] In Cameron, the Court of Appeal explained it thusly: [20] Under s. 32 of the EGPA [The Engineering and Geoscience Professions Act, SS 1996, c E-9.3], the Legislature grantedlimited standing to complainants in what are processes of investigating complaints and, when warranted, of disciplining APEGSmembers that clearly involve only APEGS and the members in question.

In this regard, the provisions of the EGPA set out rights andduties for APEGS and its membership; they leave no room for outside involvement in the investigation and disciplinary processes. WhileAPEGS is charged with governing its membership in the public interest, the only interested parties in the investigative and disciplinaryprocesses are APEGS and those members whose conduct has been impugned. A complainant launches those processes, but the EGPAdoes not interject complainants into them as a party.

The only exception to this is a complainant’s ability to have an investigatingcommittee’s report reviewed by the Council under s. 32(7). [21] It follows from this that Dr. Cameron has no standing in the investigative process other than pursuant to s. 32(7). For thatreason, I am not persuaded that the factual differences between Friends and the other Alberta cases that the Chambers judge relied uponserve to distinguish them from the case at hand. I agree with the analysis and conclusion in Friends [2001 ABCA 107, 199 DLR (4th)85] that, in a context such as this, where there is no lis inter partes between Dr.

Cameron and APEGS (or the Engineers), judicial reviewis not available. [Emphasis added] [41] In Toutsaint, the Court of Appeal arrived at essentially the same conclusion. [42] The result is that complainants in such situations do not have standing vis-à-vis the investigative processes. [43] Self-governing professional organizations such as the Saskatchewan Registered Nurses Association in Toutsaint

and APEGS in Cameron generally appoint investigation committees as that is what their legislation requires. The PCC designated an investigator and then made the decision itself. But they amount to the same type of screening process. As noted in Toutsaint at para 30 , only if the investigation committee sends the matter on to the discipline committee does a process occur that resembles a judicial setting. [ 44 ] The policy behind that is easily understood. A quasi-judicial hearing consumes considerable resources. Legal counsel often become involved.

Entry into the quasi-judicial phase entails evidence, often taken under oath. Beyond that stage there may be rights of appeal or judicial review, but rarely with the opportunity to call additional evidence. If adverse findings are made against a member, real consequences generally flow. [ 45 ] Before arriving at that stage, a screening process enhances efficiency and allows prioritization of often-scarce resources. That is so whether the screening takes the form of an investigation committee or what the PCC did here by using an investigator and then making a screening decision.

It allows members to receive more timely determinations of clearly unfounded complaints than would be possible if every complaint had to proceed to a hearing. [ 46 ] As noted above, once the complaint is lodged, the person in real jeopardy is usually the member. As the Court of Appeal observed in Toutsaint at para 30 : [30] … The investigation committee makes a determination that directly affects a member of the SRNA, while having only an indirect effect on a complainant. [ 47 ] In contrast, the impact on the complainant’s personal interests is viewed as considerably reduced.

Toutsaint explains that as follows: [33] As found by the Chambers judge, the decision by the investigation committee had little to no impact on Mr. Toutsaint. There was no evidence that a successful complaint to the SRNA would have had any effect on the disposition of his institutional offence. As I see it, Mr. Toutsaint is a member of the public who has a general interest in the regulation of registered nurses, particularly with how those nurses interact with vulnerable persons who often have little to no choice with regard to medical services.

He also has an indirect personal interest in the proper consideration of his own complaint. Even recognizing that, as a person confined in a penal institution, Mr. Toutsaint has restricted choices as to his health care provider, I can see no connection between the consequences that he faced because of his actions and the issue of whether Ms. Grujic should have faced professional discipline because of her own conduct. [34] The Chambers judge determined that Mr. Toutsaint would have had no legitimate expectations other than that Ms. Grujic would have been obliged to respond to his complaint.

In my view, he would also have had the general expectation that the investigation committee would take his complaint seriously, consider the issues that it raised, and investigate it in accordance with the legislation and in the context of the circumstances. However, Mr. Toutsaint was not a party to the proceedings and could not reasonably have expected to receive the same procedural protections afforded to a member of a self-regulated profession. The evidence does not support any other specific expectations. [Emphasis added] [ 48 ] In my opinion, Cameron and Toutsaint apply directly here.

Each of the Act ; The Engineering and Geoscience Professions Act , SS 1996, c E-9.3 [ EGPA ]; and The Registered Nurses Act, 1988 , SS 1988-89, c R-12.2 [ RN Act ], provides for an investigative stage. Each contemplates that the investigation may screen out unfounded or frivolous complaints. The Act uses the words “unfounded” and “frivolous” explicitly along with other similar terms; the EGPA and the RN Act do not, but the ability to recommend that no further action be taken regarding matters under investigation serves as a parallel.

In each case, if no further action is to be taken, a complainant must be at least advised of the decision. [ 49 ] I recognize that significant differences exist: a. Under the Act complaints may be lodged against both members and police services. The EGPA and the RN Act contemplate complaints only against members because they deal with regulation of individual members. • In my view that is not a factor that distinguishes Toutsaint and Cameron . It merely recognizes that, particularly through policies that they establish and enforce, police services are appropriately subject to regulation as organizations. b.

In the EGPA and the RN Act , there is no concept of a public complaint. Police interact with the public in ways distinct from engineers and nurses (though the difference was less strong in Toutsaint where the complainant was a prison inmate who had no choice in who provided care to him).

Provisions such as s. 39(1.1)(d), which obligates the PCC to ensure that public complaints are handled in a manner consistent with the public interest, further attenuate that distinction. • None of that, however, detracts from the policy objective of ensuring efficiency with respect to the determination of unfounded complaints. c. The confidentiality/privilege provisions in ss. 39(5) to (7) of the Act are not mirrored in the EGPA and the RN Act . • In my view, those provisions of the Act recognize the intersection between complaints and the need to keep investigations confidential.

Privacy and employment law considerations may also be relevant, though the paramountcy of confidentiality relating to investigations is made abundantly clear by s. 39(6). That does not, in my view, detract from the applicability of Toutsaint and Cameron as to the standing of a complainant. d. Where a complaint is made against a member, the Act contemplates that the PCC may direct a police service to conduct the investigation. • Again, that does not remove the Act from the ambit of Toutsaint and Cameron . Police services have ample expertise in conducting

investigations. No parallel exists for most other professions. The decision on how to dispose of a complaint still must be made by the PCC (with or without the police chief’s participation). [ 50 ] In addition to the foregoing, “complainants” are mentioned many times in the Act . Fewer references exist in the EGPA (which refers to a “person who made the complaint” rather than a “complainant”) and the RN Act .

Under the Act , complainants have some status in respect of public complaints that the Legislature did not consider necessary to recognize in the EGPA and the RN Act . [ 51 ] But does that really make a meaningful difference to the status of a complainant in an investigation or disciplinary proceeding? In my view it does not. The role that a complainant may play in discipline under the Act does not differ from the other administrative contexts. A complainant is not a party to any such proceeding.

The Act specifically provides in s. 52(3) that while a complainant may attend a hearing and be represented by counsel, he or she is not entitled to call or cross-examine witnesses. It is an observing role, rather than participatory. The same is true in ss. 34(17) of the EGPA .

The RN Act does not mention complainants in respect of discipline hearings (it also does not require that hearings be held in public), but the discussion in Toutsaint about the non-participatory nature roles of complainants remains consistent with the provisions of the Act . [ 52 ] Thus, a complainant under the Act remains external to any proceeding, whether investigative or disciplinary, unless called as a witness at a hearing or interviewed by an investigator. That is substantially the same role that a complainant plays under the EGPA and the RN Act . [ 53 ] In terminating the investigation into Mr.

Fineday’s complaint, the PCC performed a screening role, exactly as contemplated by the Court of Appeal in Toutsaint and Cameron . Those decisions should and do apply here. [ 54 ] At this point, it is appropriate to consider the contextual argument raised by Mr. Fineday that I identified in the introduction to this fiat: that the need for robust judicial oversight concerning the use of force by police requires this Court to intervene here. I cannot agree. Judicial review is not a statutory creation. Courts have inherent powers, but those powers may be circumscribed by statute.

The Court is obligated to follow applicable statutory provisions unless they are determined to be unconstitutional or violate the Charter . No such challenge was brought here. There is no basis in Canadian law for me to give effect to the public discourse referenced by Mr. Fineday where precluded by legislation that has not been declared invalid nor challenged before me. [ 55 ] As well, Mr. Fineday contends that investigations under the Act are distinct from those in professional discipline contexts. He points to the status that the Act accords to a complainant if the complaint is referred to mediation.

However, where a complaint is essentially personal to the complainant, s. 28(3) (

d) of the RN Act contemplates referral to mediation. That provision is less detailed than s. 43.1 of the Act , but likely would operate similarly. As well, if a complaint under the Act is one of true public interest (as opposed to personal interest), mediation likely would not be appropriate under s. 43.1 . Thus, arguments about the status given to a complainant in mediation do not, in my view, speak to a complainant’s status in other aspects of the investigative process. [ 56 ] Mr.

Fineday points to the special, powerful and privileged position that police hold in society to use force and deprive individuals of liberty. He says that given those powers, the Court must recognize the necessity for public oversight. If the Legislature had not legislated in this area, perhaps that would represent a gap for the Court to fill. I do not disagree with the contention that police officers are in different positions than most individuals who work in self-regulated provisions. Nonetheless, the Legislature has spoken with clarity about oversight.

It created the PCC to receive and determine complaints, including by screening out complaints, ordering further investigation, directing matters to discipline, imposing discipline, or referring for criminal investigation. [ 57 ] If the Legislature wanted complainants to have robust judicial review of processes prior to a hearing, in my view it would have structured the relevant portions of the Act differently than it has. Instead, the Act ’s structure and provisions are sufficiently similar to the EGPA and the RN Act that caselaw applicable there applies here as well.

The Legislature has created mechanisms for the oversight of police, and I am unpersuaded that it intended for a parallel common law oversight structures to be fashioned by courts. [ 58 ] Finally, nothing in the Act precluded Mr. Fineday from issuing a statement of claim against the police officers he believes mistreated him, nor against the SPS. He had recourse to remedies. The issue here was whether his recourse includes judicial review. [ 59 ] The Act provides Mr. Fineday with no right of appeal. As in Toutsaint , the PCC owed Mr.

Fineday only a limited duty of fairness to consider the nature of the complaint and whether further action was required. Mr. Fineday therefore has no standing to seek review of the PCC’s determination on the merits. He may have standing to ask for judicial review in respect of procedural fairness issues. I address that in the next section. Issue #3 Does Mr. Fineday have standing to apply for judicial review in respect of adequacy of reasons? [ 60 ] I frame this issue in this manner because Mr. Fineday’s application raises only two bases for judicial review. The first basis is clearly directed at the merits.

I dealt with that above. The second is adequacy of reasons, which is the only issue raised by Mr. Fineday in his application that might fall under the heading of procedural fairness. [ 61 ] As I discuss shortly below, I will invite further submissions as to whether sufficiency of reasons is a question of procedural fairness. [ 62 ] In Cameron , the Court of Appeal may not have determined whether judicial review was available even on procedural fairness questions. See paragraph 23.

However, I read Toutstaint as accepting that it would be available: paragraph 42. [ 63 ] Toutsaint recognized that whether sufficiency of reasons may not be a question of procedural fairness but declined to decide the question: paragraph 47. As I review my notes, that is not a question on which I received submissions from the parties. [ 64 ] If Mr. Fineday wishes to pursue judicial review in respect of sufficiency of reasons, then he shall have 28 days

from the date of this fiat to file written submissions on whether that is a question of procedural fairness, failing which his application shall be dismissed in its entirety. If Mr. Fineday files such submissions within that time, the respondents shall have 14 days to file response materials. Mr. Fineday would have seven days to file a reply brief to address matters first arising in the respondents’ materials.

I do not view it as necessary to receive oral argument on the question. [ 65 ] If any party requires more time than provided in the preceding paragraph, they may request a conference call with me by contacting the Local Registrar. Issue #4: Should the Court order that disclosure be provided to Mr. Fineday? [ 66 ] If Mr. Fineday does not file submissions as permitted in the preceding section, no decision concerning disclosure would be required as it would be moot.

Accordingly, I will not attempt to answer that question now. [ 67 ] If argument proceeds concerning sufficiency of reasons and I find that judicial review on that issue may proceed, at that point I would determine the disclosure question. CONCLUSION [ 68 ] I conclude that Mr. Fineday does not have standing to apply for judicial review on the merits of the PCC’s termination of the investigation at the screening stage.

If he wishes to pursue review on sufficiency of reasons, he may file written submissions as set out above. [ 69 ] I apologize to the parties for the many months that passed before I issued this fiat. “D.G. Gerecke” J. D.G. GERECKE