2010 ONSC 2262, 2010 ONSC 2262

CITATION : Izzett v. Chief of Police, 2010 ONSC 2262 COURT FILE NO.: 579/09 DATE: 20100427 SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT RE: STEVEN IZZETT, Applicant AND: THE CHIEF OF POLICE OF THE TORONTO POLICE SERVICE, Respondent BEFORE: GREER, MOLLOY and J. MACKINNON JJ.

COUNSEL: Won Kim and Megan McPhee, for the Applicants Brian Gover and Brendan Van Niejenhuis, for the Respondent HEARD at Toronto: April 9, 2010 MOLLOY J. : ENDORSEMENT Introduction [ 1 ] The applicant is a Staff Inspector with the Toronto Police Service and is the subject of disciplinary proceedings under the Police Services Act [1] (“the Act "). The Honourable Keith Hoilett was appointed as the Hearing Officer to conduct the hearing with respect to the various charges. The evidentiary portion of the hearing is scheduled to begin in June, 2010.

Staff Inspector Izzett brought a preliminary motion before the Hearing Officer seeking to have all charges against him dismissed on the grounds of abuse of process and lack of jurisdiction. [ 2 ] The Hearing Officer dismissed the motion for written reasons dated October 22, 2009. Staff Inspector Izzett now seeks judicial review of that decision. The respondent takes the position that this application should be dismissed as premature.

Alternatively, the respondent submits that the application should be dismissed on its merits. [ 3 ] This Court heard argument from both counsel on the prematurity issue and also on the jurisdictional issue (as that could be a basis for not dismissing for prematurity). At the conclusion of that argument, we advised counsel that the application would be dismissed for prematurity, with reasons to follow. Those reasons are set out below. Prematurity: General Principles [ 4 ] The issue of prematurity was dealt with in some detail by this Court in the recent decision of Ackerman v.

Ontario Provincial Police . [2] We adopt the general principles with respect to prematurity set out in that decision and will not repeat them here. [ 5 ] There is a full right of appeal from the final decision of the Hearing Officer, first to the Ontario Civilian Commission on Police Services (“OCCPS”), and from there to the Divisional Court. The applicant seeks to by-pass that appeal route by coming to this Court on judicial review (rather than appeal) seeking to overturn the interlocutory order made by the Hearing Officer.

Judicial review is a discretionary remedy and it will rarely be exercised to review decisions before the final determination of the tribunal. Permitting judicial review of interlocutory decisions causes administrative tribunal process to become fragmented and delayed.

Judicial review will only be appropriate in the clearest of cases, including where the tribunal has no jurisdiction to proceed. [3] Analysis: Abuse of Process [ 6 ] The abuse of process and denial of natural justice issues raised by the applicant relate to the sufficiency of the particulars provided to him and an allegation that investigators and the police force have attempted to intimidate prospective witnesses. This is precisely the kind of allegation that should only be dealt with based on a full evidentiary record.

It will be difficult to say what, if any, impact there has been on the witnesses until they actually testify. Any intimidation or improper influence can properly be the subject of cross-examination at the hearing and may, if appropriate, give rise to a further motion before the Hearing Officer. Likewise the sufficiency of the particulars is an interlocutory matter that ought not to be the subject of review by the court prior to the conclusion of the hearing. It is premature to review the Hearing Officer’s decision on this point at this stage.

Analysis: Jurisdiction [ 7 ] The “jurisdictional” issue is based on the applicant’s

interpretation of the interplay between s. 64(7) and 68(19) of the Act [4] which provide: 64.

(7) Subject to subsection (11), if at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the view that the police officer’s conduct may constitute misconduct, as defined in

section 74, or unsatisfactory performance, he or she shall hold a hearing into the matter. 69.

(18) If six months have elapsed since the facts on which a complaint is based first came to the attention of the chief of police or board, as the case may be, no notice of hearing shall be served unless the board (in the case of a municipal police officer) or the Commissioner (in the case of a member of the Ontario Provincial Police) is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing. [ 8 ] In this case, the charges came to the attention of the Chief of Police on September 9, 2008.

The Chief issued the notice of hearing on March 2, 2009, a few days short of six months after he learned of the charges. The applicant takes the position that the Notice of Hearing was not validly issued in this case because at the time it was issued the investigation was not complete. He argues that s. 64(7) only permits issuance of the notice “at the conclusion of the investigation” and that if the investigation was not completed at that time, leave was required to delay service pursuant to s. 69(18). [ 9 ] I do not see this as the kind of issue that merits intervention of this Court on judicial review.

The applicant appropriately raised the matter as a preliminary issue before the Hearing Officer. Any further review should be left to the statutory appeal process, where there will be a hearing first before OCCPS and, then potentially to this Court. Such an appeal would have the benefit of a full evidentiary record. [ 10 ] However, since this issue was cast as jurisdictional, we heard full argument on it. In my view, this argument is more correctly described as an issue of statutory

interpretation involving the meaning of the words “completion of the investigation” in s. 64(7) of the Act . The scheme of the Act contemplates that both the hearing of a discipline complaint and the first level of appeal beyond that should be in the hands of an expert tribunal rather than the courts. The

interpretation of the home statute is squarely within the special area of expertise of the tribunal. This is not an issue involving a broad question of law of central importance to the legal system as a whole. [5] Accordingly, in my view, the Hearing Officer’s

interpretation is entitled to deference. The appropriate standard of review is that of reasonableness. However, even if this is an issue of pure jurisdiction attracting a correctness standard of review (as argued by the applicant) we would reach the same conclusion, as referred to below. [ 11 ] The Hearing Officer determined that the

interpretation urged by counsel for the officer would result in an absurdity. Relying on the Divisional Court decision in Gough v. Peel Region Police Service, he concluded that the threshold for determining that a notice of hearing should be issued is a low one and that it is not necessary that every last witness be interviewed before the obligation to issue a notice of hearing is triggered. The Hearing Officer held that the fact that the investigation proceeded beyond the point when the notice of hearing was served did not undermine the validity of the notice. [ 12 ] The Hearing Officer gave careful and detailed reasons for his decision. His

interpretation of the provision was a contextual one, fully consistent with the plain language of the statute and with its underlying intent. It clearly meets the reasonableness test. Indeed, even on the correctness standard, I would find no basis upon which to interfere with the Hearing Officer’s conclusion. [ 13 ] In my view, read in context, the phrase “at the conclusion of the investigation and on review of the written report” must be referable to the test to be met for the issuance of a notice of hearing.

If on the basis of the investigation conducted to that date, as summarized in the written report, there is sufficient evidence for the chief of police to conclude that the officer’s actions “ may constitute misconduct” the notice of hearing must be issued. The statute mandates that this must be done within six months. Alternatively, if a reasonable explanation is presented for why the investigation has not yet reached the stage for presentation to the police chief, the investigators may apply for an extension of the time for service of the notice of hearing under s. 69(18).

These timelines are included in the legislation to ensure an expeditious investigation. This is for the benefit of the officer under investigation, who is entitled to an efficient and timely investigation and to early notice that a hearing will be conducted. [ 14 ] It is difficult to define what the term “conclusion of the investigation” would otherwise mean. No investigation is ever truly “concluded” merely because a notice of hearing has been issued.

Inevitably there will be things like information and details to be followed up, new witnesses that come forward, or avenues of investigation the importance of which was not initially understood that may need to be explored. There is an ongoing duty of disclosure right up to the date of the hearing and even beyond. In this case, very close to the end of the six month investigation period, the applicant provided a list of 46 people he wished to have interviewed.

The investigation team undertook to follow up with those potential witnesses, but did not delay filing their report and requesting the issuance of a notice of hearing. Proceeding in this expeditious manner is fully consistent with the intent of the legislation and the protection of the rights of the officer being investigated. [ 15 ] Counsel for the applicant in this case argues that what continued after March 2, 2009 was a substantial investigation, not merely tying up loose ends.

For example, he asserts that of the 50 witnesses actually interviewed in the investigation to date, 24 were conducted after the issuance of the notice of hearing. This also went beyond questioning people at the behest of the officer charged. [ 16 ] In my view, this is not determinative. We do not know, for example, the state of knowledge from the investigation as of March 2, the relative importance of witnesses interviewed earlier as opposed to later and the purpose of their being questioned.

Possibly, as argued by the applicant, if an extension of the investigation pursuant had been sought pursuant to s. 69(18), it might have been granted. That is not the point. There is no requirement to extend an investigation if there is already enough evidence to meet the very low threshold required to make a hearing mandatory. It must be remembered that this is for the protection of the officer under investigation. If there is still further investigation that must be carried out, there will be time pressures on the investigators to move quickly.

If the officer is prejudiced by incomplete evidence or late disclosure, he can apply to the Hearing Officer for an adjournment of the hearing. The officer’s interests are therefore fully protected, by holding the investigators to strict timelines, and by safeguarding the

officer’s right to timely disclosure. [ 17 ] The Hearing Officer’s

interpretation of the legislation is, in my view, both reasonable and correct. He did not err in referring to Law Society of Upper Canada v. Sharon Ellen Shore [6] . On the contrary, he recognized that different legislation was involved but noted a common underlying principle that the authorities should not be discouraged from investigating a matter even after a hearing is authorized. I agree. There is an important principle at stake. The initial six month time limit for the investigation is designed to encourage a speedy resolution of the matter under investigation.

Extensions of time should not routinely be sought merely because every detail of the investigation has not been “completed” in that six month time period. That should in no way compromise the continued investigation, which may be necessary to get to the truth of what happened and may ultimately be of great assistance to the officer under investigation. [ 18 ] Nor did the Hearing Officer err in his reliance on Gough. The Hearing officer recognized that Gough was not “on all fours” with the case before him.

However, he noted that the Divisional Court made two key findings: (1) that timeliness is of the essence in proceeding with an investigation; and (2) that the test for issuing a Notice of Hearing is not an onerous one and merely requires sufficient evidence to conclude that there “ may ” have been misconduct.

The Court also found that on August 31, 2001, when two key witnesses had not yet been interviewed, there was “some evidence … that misconduct may have occurred.” [7] The Hearing Officer concluded from this that it “inescapably flows from the Divisioanl Court’s decision in Gough that it is not necessary that every last witness be interviewed before the obligation to serve a Notice of Hearing arises.” The Hearing Officer was not suggesting that this was an express finding of the Court in Gough , but rather that this conclusion followed logically from the reasoning of the Court in that case.

I agree. [ 19 ] Counsel for the applicant relies on Watson v. Catney [8] as authority for the proposition that there are two distinct phases in proceedings against a police officer (an investigative phase and an adjuicative phase) and that these two phases cannot be conflated. Therefore, he reasons, the investigative phase must be completed before the adjudicative phase begins. With respect, I believe this to be a funamental misunderstanding of that case.

At issue was whether the Chief of Police could judicially review the decision of a Hearing Officer he himself had appointed as his delegate to conduct the hearing. The Act provided an appeal for the officer under discipline, but not for the Chief of Police. The Court of Appeal held that the reason there was no appeal right for the Chief of Police was because the decision maker was his own delegate and it would be as if he was reviewing his own decision. For the same reason, the Chief of Police had no standing to judicially review the decision of his delegate.

In the course of his analysis, McPherson J.A stated (at paras 26-27): 26. . . .It is clear from these provisions that the Chief plays two roles in the discipline process. First, he must decide whether a hearing is warranted (s. 64(1) and (7) ); this is the investigatory step in the process. Second, the Chief is central to the hearing process – either he conducts the hearing himself ( s. 64(7) ) or he delegates the task to a police officer (s. 76(1)).

The shared or synonymous identity of the Chief or his delegate qua hearing officer is affirmed by the wording of s. 70(6) which discusses the appellate jurisdiction of the Commission in terms of its review of the decision of “the chief of police”. 27. With respect, the Divisional Court conflated the two steps in the process. The court referred to s. 64(7) of the PSA and to this court’s decision in Canadian Civil Liberties Association v. Ontario (Civilian Commission of Police Services) (“ CCLA ”), supra , and concluded that the Chief’s role is investigatory.

That is true for the first step in the process which culminates in a decision whether a hearing should be held. This is, in essence, the gatekeeper function, and CCLA dealt with the Chief’s role with respect to this function. Unfortunately, the Divisional Court extended this analysis into the second stage of the discipline process.

The analysis does not fit there because it is clear from the various statutory provisions set out above that the Chief has a pre-eminent role in the second stage of the discipline process and that his role is squarely adjudicative in nature. [Emphasis added] [ 20 ] What the Court of Appeal was dealing with in Watson v. Catney was the two roles played by the Chief of Police: the investigative or gate-keeping role; and the adjudicative role. The Court was not suggesting that there were two phases that were water- tight compartments such that once a Notice of Hearing was issued, all investigation must stop.

Indeed, even the applicant concedes that some investigation must be ongoing, including following up leads and witness interviews requested by the defence, and that this is very much in the interests of the officer charged. [ 21 ] I do not agree with the applicant’s suggestion that the

interpretation of these provisions by the Hearing Officer would result in s. 69(18) having no meaning. He argued that if an investigation could continue beyond the six-month period in any event, there would never be a need to obtain an extension of time under s. 69(18). That is not the case. There will be situations in which the investigators are not able to present a sufficient case within the first six months to meet the standard required under s. 64(7).

For example, there may be a complaint against an officer in circumstances where the police are unable to interview key witnesses prior to the expiry of the six months.

In that situation, the investigators might elect to seek an extension of time under s. 69(18) to continue the invstigation, rather than applying under s. 64(7) on flimsy evidence. [ 22 ] I do recognize that there could be situations in which investigators might abuse the system by failing to investigate in any meaningful way within the six months, without any reasonable basis for the delay, and then submitting a report based on, say, the interview of only one witness. Such a report might meet the low test of showing conduct that “may” constitute misconduct.

In that situation, the notice of hearing might issue without the officers having shown the reasonableness of delaying the investigation under s. 69(18). I agree with counsel for the respondent that the remedy in that situation would likely be an abuse of process motion, based on the bad faith of the investigators. I emphasize, however, that this case does not remotely fall within that characterization. Clearly, substantial investigation had been done within the six months and the chief was satisfied, based on the report of the investigation to that date, that the test for directing a hearing had been met.

There was no requirement for the investigators to get a further order under s. 69(18) in that situation, nor was there any justification for failing to issue the notice promptly. [ 23 ] I agree with the conclusion of the Hearing Officer that the position taken by the applicant in this case could lead to an absurd result. In the course of argument counsel conceded that ongoing follow-up type investigation after the notice of hearing was issued would not be objectionable. He also conceded that if new witnesses came forward, they could be interviewed.

When asked if the investigators could follow a line of investigation based on a theory they had not previously considered, counsel suggested that this would

not be proper and that they would need to obtain authorization for that. The problem is, there is no statutory basis for obtaining authority to proceed with an investigation. No separate entity is charged with responsibility for supervising the investigators; that is a matter for the Toronto Police Service itself. It would be contrary to the public interest in having these issues fully investigated and determined on their merits to impose a prohibition on ongoing investigation after the Notice of Hearing is issued.

Such a proposition is contrary to the intent of the legislation and completely unworkable as a practical matter. Conclusion [ 24 ] Accordingly, this application is dismissed as premature. In any event, with respect to the issue characterized by the applicant as jurisdictional, I find on the merits no basis to interfere with the Hearing Officer’s decision. That decision was a reasonable

interpretation of the legislative provisions and also was correct. [ 25 ] If counsel cannot agree on costs, written submissions may be forwarded to the court within seven days. MOLLOY J. GREER J. J. MACKINNON J. Date: April 27, 2010