) ) JASON WALL Applicant – v. –, 2013 ONSC 3312

CITATION : Wall v. Independent Police Review Director, 2013 ONSC 3312 DIVISIONAL COURT FILE NO.: 207/12 DATE: 20130606 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, ASTON and HARVISON YOUNG, JJ. BETWEEN: ) ) JASON WALL Applicant – and – OFFICE of the INDEPENDENT POLICE REVIEW DIRECTOR Respondent ) ) ) ) ) ) ) ) ) ) Clayton C. Ruby and Nader R. Hasan, for the Applicant Heather MacKay, for the Respondent ) ) ) HEARD: April 9, 2013 molloy j.: REASONS FOR DECISION A. INTRODUCTION [ 1 ] Political leaders from around the world gathered in Toronto on the last weekend in June, 2010, for the G20 summit.

International summit meetings often bring with them considerable security challenges and other complications for local police forces. The Toronto G20 was no exception. Undoubtedly there was useful high-level political discussion among world leaders that weekend. There was also meaningful public discourse, as well as peaceful political demonstrations and protest marches.

However, for many Ontarians, the most enduring memories of the Toronto G20 are the scenes of rioting in the streets, police cars set on fire, and bricks hurled through shop windows, along with troubling images and reports of police officers abusing their powers. [ 2 ] Following the G20, many individuals were prosecuted for criminal offences, some of them based on arrests made that weekend, and others based on subsequent police investigations. However, of the more than 1100 people arrested that weekend, [1] the vast majority were released without charges.

Of the charges that were laid, many hundreds were stayed or withdrawn. In the aftermath of that weekend, much was written and said about the conduct of police officers.

There were 167 complaints to the Ombudsman of Ontario [2] and 356 complaints to the Office of the Independent Police Review Director (“OIPRD” or “the Director”). [3] There have been numerous examinations of what went wrong, ranging from informal internal assessments to full-scale reviews with public hearings and followed by substantial reports, including reviews by the Ombudsman of Ontario, [4] the Canadian Civil Liberties Association, [5] the Honourable John W.

Morden (at the request of the Toronto Police Services Board (“the Board”)), [6] and a systemic review by the OIPRD. [7] [ 3 ] The applicant Jason Wall was arrested by Toronto police officers on the morning of Sunday, June 27, 2010. He was released

without charges on June 28, 2010, after spending 28 hours in custody. At the time of his arrest, he was told that he was being arrested for being disguised with intent to commit an indictable offence. Mr. Wall filed a complaint of police misconduct with the OIPRD, which was investigated and resulted in disciplinary charges being laid against the two arresting officers. Those charges are still outstanding. No issue is raised with respect to how the OIPRD handled that aspect of the complaint. [ 4 ] In the OIPRD investigation report into the circumstances surrounding Mr.

Wall’s arrest and detention, there was information indicating that the arresting officers may have been acting under instructions from officers higher up in the chain of command, specifically a sergeant who had delivered a briefing that Sunday morning, and possibly others in command who had instructed the sergeant, including the Chief of Police, William Blair. That report was issued in September 2011. On January 25, 2012, Mr.

Wall filed a further complaint with the OIPRD which he characterized as a request that his original complaint be fully investigated or, in the alternative, a new complaint against Chief Blair and any other officers involved be investigated. [ 5 ] On February 2, 2012, the OIPRD advised Mr. Wall that it would not be dealing with his complaint about the conduct of Chief Blair because the complaint was made more than six months after the facts on which it was based occurred. [ 6 ] Mr.

Wall seeks judicial review of the OIPRD decision refusing to deal with his complaint and in particular seeks an order of mandamus requiring the Director to refer or investigate the complaint. For the reasons that follow, the decision of the OIPRD is quashed. However, I do not consider this to be an appropriate case for mandamus.

The matter is remitted to the OIPRD for further consideration in accordance with the directions set out in this decision. [ 7 ] Because the current regime for complaints against police is relatively recent and, but for one other case, [8] the role of the Director as decision-maker has not yet been the subject of much judicial scrutiny, it is useful to begin with a review of the legislation itself. I will then deal with the particular circumstances of Mr. Wall’s complaint, followed by an analysis of how the OIPRD dealt with that complaint. B.

STATUTORY SCHEME Overview [ 8 ] The Ontario government implemented the current legislative regime for complaints against police officers in response to the recommendations of a 2005 report by the Honourable Patrick LeSage. [9] The purpose of the legislative amendments under the Police Services Act [10] was to provide a system for handling complaints that would be seen to be fair, effective and transparent. The process for dealing with complaints against the police and the powers of the OIPRD in that regard are set out in

Part V of the PSA. The scheme provides for the creation of the Office of the Independent Police Review Director, which serves a gate-keeper function. All civilian complaints about police services, policy and conduct go through the OIPRD. From there, complaints about police conduct are either retained by the OIPRD for investigation or referred to others for investigation, subject to the OIPRD’s power to decide not to deal with a complaint under s. 60 of the PSA.

Following the investigation, if there are reasonable grounds for believing there has been misconduct or unsatisfactory work performance, a disciplinary hearing is mandated. Otherwise, the complaint will be dismissed. The Normal Course of a Complaint [ 9 ] The OIRPD has a mandatory responsibility under the PSA to review all complaints made by members of the public. Section 59(1) provides: 59.

(1) The Independent Police Review Director shall review every complaint made to him or her by a member of the public under this Part, and shall determine whether the complaint is about the policies of or services provided by a police force or about the conduct of a police officer. [Emphasis added.] [ 10 ] There is no question that Mr. Wall’s complaint is about the conduct of police officers. [ 11 ] Next, the OIPRD is directed, again in mandatory language, to either retain a complaint for its own investigation or refer it to a chief of police for investigation, subject only to s. 60 of the PSA (to which I will return shortly). Section 59(2) states: 59.

(2) Subject to

section 60, the Independent Police Review Director shall ensure that every complaint reviewed under subsection (1) is referred or retained and dealt with in accordance with

section 61. [Emphasis added.] [ 12 ] If a complaint about police conduct is not dismissed pursuant to the s. 60 powers, the OIPRD has three options under s. 61(5): (1) referral to the chief of police of the police force involved; (2) referral to the chief of a different police force; or (3) retention by the OIPRD, to be dealt with under s. 68. All three options require an investigation of the complaint. In this case, in dealing with the initial complaint of Mr. Wall, the OIPRD proceeded under s. 68 to conduct its own investigation.

As I will review later, as a result of that investigation, the complaint was considered to be substantiated and to be serious in nature, with the result that a disciplinary hearing was mandated. The relevant provisions of s. 68 state: 68.

(1) The Independent Police Review Director shall cause every complaint retained by him or her under clause 61 (5) (

c) to be investigated and the investigation to be reported on in a written report.

(2) If at the conclusion of the investigation the Independent Police Review Director is of the opinion that the complaint is unsubstantiated, he or she shall report that opinion in writing to the chief of police of the police force to which the complaint relates and

the chief of police shall take no action in response to the complaint and shall notify the complainant and the police officer who is the subject of the complaint in writing of the decision, together with a copy of the written report.

(3) If at the conclusion of the investigation the Independent Police Review Director believes on reasonable grounds that the conduct of the police officer who is the subject of the complaint constitutes misconduct as defined in

section 80 or unsatisfactory work performance, he or she shall refer the matter, together with the written report, to the chief of police of the police force to which the complaint relates.

(4) If the Independent Police Review Director is of the opinion that the conduct of the police officer constitutes misconduct or unsatisfactory work performance that is not of a serious nature, he or she, in referring the matter to the chief of police under subsection (3), shall so indicate.

(5) Subject to subsection (6) [involving misconduct that is not serious in nature making informal resolution appropriate], the chief of police shall hold a hearing into a matter referred to him or her under subsection (3) by the Independent Police Review Director. Complaints Against a Chief or Deputy Chief of Police [ 13 ] There is a somewhat different procedure where the complaint is about a chief or deputy chief of police. Assuming the complaint is not dismissed under s. 60, s. 61(8) requires that it be referred to the applicable police services board to be dealt with under s. 69. 61.

(8) A complaint about the conduct of a municipal chief of police or a municipal deputy chief of police shall be referred by the Independent Police Review Director to the board and dealt with under

section 69 . [ 14 ] A police services board is required by s. 69 (1) to “review” any complaint referred to it by the OIPRD. If the Board believes the conduct of the chief or deputy may constitute misconduct or unsatisfactory work performance, the Board must refer the matter back to the OIPRD and the OIPRD must then investigate it. The relevant subsections of s. 69 state:

(2) If at the conclusion of the review the board is of the opinion that the conduct of the chief of police or deputy chief of police who is the subject of the complaint may constitute an offence under a law of Canada or of a province or territory, or misconduct as defined in

section 80 or unsatisfactory work performance, the board shall ask the Independent Police Review Director to cause the complaint to be investigated and the investigation to be reported on in a written report. …

(4) If at the conclusion of the review the board is of the opinion that the conduct of the chief of police or deputy chief of police who is the subject of the complaint is not of a type described in subsection (2), the board shall take no action in response to the complaint and shall notify the complainant, the chief of police or deputy chief of police and the Independent Police Review Director in writing of the decision, with reasons.

(5) If at the conclusion of the investigation of a complaint under subsection (2) the Independent Police Review Director is of the opinion that the complaint is unsubstantiated , he or she shall report that opinion in writing to the board and the board shall take no action in response to the complaint and shall notify the complainant and the chief of police or deputy chief of police who is the subject of the complaint in writing of the decision, together with a copy of the written report.

(6) If at the conclusion of the investigation the Independent Police Review Director believes on reasonable grounds that the conduct of the chief of police or deputy chief of police constitutes misconduct or unsatisfactory work performance, he or she shall refer the matter, together with the written report, to the board. …

(8) Subject to subsection (9) [involving informal resolution of misconduct that is not serious], the board shall hold a hearing into a matter referred to it under subsection (6) or may refer the matter to the [Ontario Civilian Police] Commission to hold the hearing. [Emphasis added.]

Summary [ 15 ] In a nutshell, assuming there is no s. 60 issue, where the complaint is against the chief or deputy chief of police, there is first a referral to the Board. If the Board believes there may be misconduct, it is referred back to the OIPRD for investigation. After investigating, if the Director has reasonable grounds for believing there has been misconduct of the type defined, the complaint proceeds to a hearing. [ 16 ] The same process is applied for complaints against individual officers, except that there is no intermediate step of a referral to the Board and back to the OIPRD.

Unlike complaints against officers, which may either be referred to a chief of police for investigation or investigated by the OIPRD, as determined by the Director, complaints against chief or deputy chief, are only investigated by the OIPRD if directed to do so by the Board.

Section 60 Decisions [ 17 ] The requirement to investigate is subject to a discretion given to the OIPRD to decide not to deal with a complaint on various grounds set out in s. 60 of the PSA .

Section 60 is expressed in permissive, not mandatory, terms. It provides: 60.

(1) The Independent Police Review Director may , in accordance with this section, decide not to deal with a complaint made to him or her by a member of the public under this Part. [Emphasis added.] [ 18 ] The grounds for possibly not dealing with a complaint under s. 60 include where the policy, service or conduct did not have a

direct effect on the complainant; [11] where the complaint is frivolous or vexatious or made in bad faith; [12] or where the complaint could more appropriately be dealt with under another Act. [13] None of those circumstances arise here. [ 19 ] Under s. 60(4), the Director may also decide not to deal with a complaint where in his or her opinion “having regard to all the circumstances, dealing with the complaint is not in the public interest.” [14] Although that subsection was not invoked by the Director in this case, it is argued by counsel to have some potential relevance. [ 20 ] Finally, pursuant to s. 60(2), the Director may decide not to deal with a complaint that is filed more than six months after the incident complained of occurred.

If relying on this power, the Director is mandated to consider the factors listed in s. 60(3). Those provisions state: 60.

(2) The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if the complaint is made more than six months after the facts on which it is based occurred. 60.

(3) In making a determination under subsection (2), the Independent Police Review Director shall consider, (

a) whether the complainant is a minor or is under a disability within the meaning of the Accessibility for Ontarians with Disabilities Act , 2005 ; (

b) whether the complainant is or was subject to criminal proceedings in respect of the events underlying the complaint; and (

c) whether, having regard to all the circumstances, it is in the public interest for the complaint to be dealt with. [Emphasis added.] C. STANDARD OF REVIEW [ 21 ] The OIPRD is vested with a discretionary power of decision under s. 60 of the PSA . This is a public interest statute and the Director is mandated to exercise those powers in a manner consistent with the public interest. As such, the Director’s decision is entitled to deference. This Court has previously held that the reasonableness standard should be applied on judicial review of the Director’s decision to screen out a complaint under s. 60. [15] I agree that is the applicable standard of review. D. JASON WALL’S COMPLAINT(

S) The Initial Complaint [ 22 ] Jason Wall was walking north on Yonge St. at about 10:00 a.m. on the morning of Sunday, June 27, 2010. He was alone. There were very few people in the surrounding area. He was doing nothing, just walking home. He was arrested by two officers, later identified as Constable Blair Begbie and Constable Vincent Wong. He was physically restrained and both his person and all his belongings were searched. He was placed under arrest for what he was told was wearing a “disguise with intent.” This was an apparent reference to a brown bandana which Mr.

Wall maintains he was wearing around his neck. Mr. Wall alleges that he was also physically assaulted by police, sustaining minor cuts to his head, and that he was held in harsh, unsanitary conditions for hours without adequate food or water. He was released at 2:30 on Monday afternoon, without charges. [ 23 ] Mr. Wall filed a complaint against “unknown police officers” with the OIPRD on December 28, 2010. Following an investigation, the OIPRD concluded that his complaint was substantiated and was of a serious nature.

Further, the OIPRD found reasonable grounds to believe that both arresting officers were guilty of misconduct, in particular “unlawful or unnecessary exercise of authority” including an unlawful or unnecessary arrest and unnecessary use of force. The OIPRD issued an Investigative Report dated September 7, 2011 setting out the results of its investigations and its findings. Formal charges were laid against both officers.

Those charges have not yet proceeded to a hearing. [ 24 ] Based on the Investigative Report, it would appear that OIPRD investigators interviewed the two arresting officers and two other officers who had brief, minimal contact with Mr. Wall at the Prisoner Processing Center. Attempts were made to interview three other officers (Cst. Yurkiw, SSgt. Gottschalk, and Det. Ecklund) but they were reported to have been uncooperative with the investigation. [ 25 ] The Investigative Report contained information about the possible involvement of other officers, higher up the chain of command. Cst.

Begbie told investigators that just before arresting Mr. Wall he had attended a briefing by Sgt. Gibb who said that he had just come from a meeting with Chief Blair and “he had specific instructions for that day.” According to Cst. Begbie, he was told that the instruction “from command was that anybody wearing a bandana or mask or gas mask concealing their identity were to be arrested for disguise with intent.” The investigators asked him if he would have laid the same charge if he had not been given that order, and he stated, “No.

There were other charges that we considered during that time, for example Breach of the Peace or Participate in a Riot, but having come directly from that briefing and told that this is sort of the order of the day and this is what we want to happen today, that’s why we went with that charge.” [ 26 ] Cst. Wong also referred to the briefing by Sgt. Gibb, which he said was attended by approximately 100 officers.

He said they were “given specific direction in regards to people that were wearing banners [ sic ], gasmask[s], goggles and that they were going to be arrestable or that they were to be arrested for Disguise with Intent, which is a Criminal Code offence and as well anyone with a backpack was to be searched and if they refused to be search[ed] then they would be arrestable for obstruct police which is a Criminal Code offence.” He said those instructions were from “upper command.” [ 27 ] It would appear that the OIPRD did not interview either Sgt.

Gibb or Chief Blair about the instructions given to officers that day, nor did they question any other officers present at the briefing about what orders or instructions were given to them and by whom.

The “Follow-Up” or “Second Complaint” [ 28 ] Mr. Wall received the report in relation to his initial complaint not long after its release on September 7, 2011. [ 29 ] On January 25, 2012, Mr. Wall, through his legal counsel, filed a complaint with the OIPRD arising from the information in the Investigative Report about the instructions given to Officers Begbie, Wong and others at the briefing prior to Mr. Wall’s arrest.

The complaint is stated to be against Chief Blair and “any other officers involved in or having knowledge of these incidents.” However, the particulars of the complaint appended to the OIPRD complaint form focus on the alleged conduct of Chief Blair. [ 30 ] The appended particulars are entitled “Request that Jason Wall’s Original Complaint be Fully Investigated and, in the alternative, a New Complaint against Chief of Police Bill Blair be Investigated.” [ 31 ] It would appear that the OIPRD treated this as a fresh and separate complaint, rather than a request for further investigation of the first complaint.

A separate complaint number was assigned to it administratively, and it appears to have been handled as a fresh complaint. Essentially, this is an administrative decision of the OIPRD and not one with which I would interfere. However, the manner in which OIPRD records a complaint administratively must not be permitted to affect how the complaint is dealt with substantively and, in particular, can have no impact on how delay and discoverability are treated under s. 60(2). [ 32 ] The OIPRD did not investigate this complaint.

Rather, the OIPRD decided not to deal with the complaint, relying on its powers to do so under s. 60(2) because it was filed more than six months after Mr. Wall’s arrest and detention, which is the subject of the complaint. E. THE OIPRD DECISION [ 33 ] On February 2, 2012, the OIPRD sent a letter to Mr. Wall signed by its Director, Gerry McNeilly. The letter, in its entirety, stated as follows: The Office of the Independent Police Review Director (OIPRD) has carefully reviewed your complaint about the conduct of Chief William Blair of the Toronto Police Service. The OIPRD is aware of your concerns.

S. 60(2) of the Police Services Act permits the Director not to deal with a complaint if the complaint is made more than six months after the facts on which it is based occurred. Taking all the information into consideration, I have decided not to proceed with the complaint as it was made more than six months after the facts on which it is based occurred. To find out more about OIPRD screening process and the Police Services Act , please visit our website at www.oiprd.on.ca. F. ANALYSIS Section 60(2) is Not a Limitation Period [ 34 ] There is no case authority interpreting s. 60(2) of the PSA .

However, it is apparent from the permissive language used and the factors that are required to be considered in the course of reaching a decision that the

section cannot possibly have been intended to act as a limitation period barring complaints filed more than six months after the incident complained of occurred. It is not simply a matter of the passage of time. Other things must be taken into account as well.

The language used is similar, although not identical, to the language setting out a six month period for serving a notice of hearing under s. 83(17) of the PSA, which states: If six months have elapsed since the day described in subsection (18), 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. [ 35 ] There is well-established case law that s. 83(17) does not create a limitation period, but rather a “presumptive period” subject to a consideration of the reasonableness of the delay. [16] In my view, it is appropriate to interpret s. 60(2) of the PSA in the same way .

The six month period referred to in s. 60(2) is not a limitation period, but rather a guideline – a point in time at which the Director may wish to consider not dealing with the complaint, depending on various factors including the reasonableness of the delay and the specific factors the Director is directed to take into account under s. 60(3). All counsel at the hearing essentially agreed with that

interpretation. Whether the review of the Director’s decision on this point is conducted on a reasonableness or correctness basis, the same result applies.

It is not a limitation period. [ 36 ] It also seems to me that the exercise of reasonable discretion under s. 60(2) would require a consideration of discoverability, and the reasonableness of the delay following the point at which the complainant knew, or could reasonably have known, the facts giving rise to the complaint. [ 37 ] It would appear that the Director in this case treated the six month period in s. 60(2) as a limitation period, because the only thing referred to in his reasons for not dealing with the complaint is the fact that six months had expired from the time of Mr.

Wall’s interactions with the police. This is an error of law – and an error exacerbated by the failure to import any element of discoverability into the equation. Mr. Wall had no way of knowing what instructions were given to the officers that arrested him, and no way of knowing about any involvement of the Chief of Police or other supervisors of the arresting officers, such as Sgt. Gibb. The first information he received about that was from the Investigative Report in September 2011. He filed his complaint well within six months after receiving that information.

Applying a six month “limitation period” against him from the time of his arrest, as opposed to from the time he discovered the possible involvement of higher command, compounds the error of treating s. 60(2) as a limitation period in the first instance.

The Duty to Give Reasons [ 38 ] In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board , [17] the Supreme Court drew a distinction between the “adequacy” of reasons and the absence of reasons. The Court held that the “adequacy” of reasons is not a “stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses – one for the reasons and a separate one for the result”. [18] Rather, where reasons are given, those reasons should be considered, along with the outcome, in determining whether the decision can be said to be reasonable.

That is part of the reasonableness analysis referred to in Dunsmuir as “the qualities that make a decision reasonable, referring both to the process of articulating reasons and to outcomes.” [19] The Supreme Court went on to hold in Newfoundland Nurses that a complete absence of reasons, where such reasons are required, would constitute a breach of procedural fairness, stating at para. 22: It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review.

But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis. [ 39 ] In this case, the applicant alleges that the complete absence of reasons from the OIPRD for its decision constitutes a breach of procedural fairness warranting setting aside the decision. Where there has been a breach of procedural fairness or natural justice, it is not necessary to engage in a standard of review analysis.

A breach of the applicable standard of natural justice or procedural fairness required of a particular tribunal in respect of a particular decision-making process will result in the decision being quashed. [20] [ 40 ] The Supreme Court of Canada has held that the content of the duty of fairness will vary based on: (1) the nature of the decision being made; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the tribunal itself. [21] The content of the duty may also be affected by specific legislative requirements. [22] [ 41 ] Reasons are important.

The art of crafting reasons can focus the decision maker and remind him or her of the relevant factors and evidence to be taken into account. Reasons also serve to reassure the individual involved that his or her concerns have been considered and the public generally that the legislative mandate at issue is being administered in a fair and transparent manner. Finally, reasons are necessary for there to be meaningful judicial review of the decision in question. [23] [ 42 ] The decision in this case is a screening decision, which does not attract the highest degree of procedural fairness.

However, it does terminate the ability of the complainant to pursue his complaint of mistreatment against the police, and does therefore affect his rights. The public interest mandate of the OIPRD and the importance of ensuring public confidence in the scheme for reviewing the conduct of police officers are factors supporting greater accountability and transparency than might be required of other “screening” type decisions.

Further, since the Director is required by the legislation to take into account certain factors, providing reasons would serve to focus the Director’s mind on those factors as well as reassure both the individual and the public that they have been taken into account. Since these decisions are reviewable on judicial review, it is essential for the court to see the reasoning process of the Director and the factors he took into account in making his decision. Finally, there is a specific legislative requirement to give reasons and therefore a legitimate expectation that reasons will be provided.

Section 60(7) states: 60.

(7) If the Independent Police Review Director decides not to deal with a complaint . . . in accordance with this section, he or she shall notify the complainant and the chief of police of the police force to which the matter relates in writing of the decision, with reasons , and in the case of the chief of police, shall also give notice of the substance of the complaint. [Emphasis added.] [ 43 ] Since the only aspect of procedural fairness raised in this case is the duty to give reasons, it is not necessary to consider the full extent of the procedural fairness requirements in OIPRD decision-making under s. 60.

However, based on the factors reviewed above, I find that at the very least, procedural fairness imposes a duty on the Director to provide reasons for any decision not to deal with a complaint. The Director Breached the Statutory Requirement to Give Reasons [ 44 ] The Director is required by s. 60(7) to advise the complainant “in writing … with reasons,” if he decides not to deal with a complaint. Counsel for the OIPRD argues that the letter sent to Mr. Wall by the Director complies with s. 60(7).

I do not agree. [ 45 ] What will constitute reasons in any given situation will vary widely, depending on the context and the nature of the decision being made. However, some general guidance can be found in the Ontario Court of Appeal decision in Gray (relying on Via Rail ) as follows, at para. 22: The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based.

The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors. [24] [ 46 ] At minimum, providing reasons for a decision must answer the question “Why?” It is useful in that context to look again at what the Director provided to Mr. Wall. The operative part of his letter consists of two sentences, which state: The OIPRD is aware of your concerns.

S. 60(2) of the Police Services Act permits the Director not to deal with a complaint if the complaint is made more than six months after the facts on which it is based occurred. Taking all the information into consideration, I have decided not to proceed with the complaint as it was made more than six months after the facts on which it is based occurred. [ 47 ] The first sentence does no more than state that the Director is “permitted” not to deal with a complaint that is filed more than six months after the facts on which it is based. That clearly is not reasons; it is merely a recital of the

section of the legislation relied

upon.

The second sentence states that: • “Taking all the information into consideration” (without any reference or explanation as to what information is referred to) • the Director has “decided not to proceed with the complaint” (which is the decision, not the reasons for the decision) • “as it was made more than six months after the facts on which it is based” [ 48 ] The only portion of the sentence that could even potentially be considered reasons is the clause “as it was made more than six months after the facts on which it is based.” However, this last clause merely recites the fact that the complaint is more than six months after Mr.

Wall’s arrest. Essentially, the latter says, “I have the power to not deal with a complaint which is more than six months after the fact, and therefore that is what I am doing.” Answering the question “Why?” with the statement “Because I can” is not providing reasons. It is the opposite of providing reasons. [ 49 ] I therefore find that the Director failed to provide reasons for his decision in breach of s. 60(7) of the PSA .

The Director Breached Principles of Procedural Fairness [ 50 ] The failure to provide reasons is not only a breach of the requirements of the legislation; it also violates principles of procedural fairness and natural justice. The complainant is entitled to know why the Director decided to exercise his discretion against dealing with the complaint. Likewise, this Court is entitled to know why the Director decided as he did. There are specific factors that the Director is required to consider before making such a decision.

The complainant cannot have any confidence that the Director took these factors into account at all, much less that he considered and applied them reasonably in reaching his decision. Again, the absence of any reasons makes it impossible for this Court to conduct a meaningful review. [ 51 ] Counsel for the OIPRD relies on Gismondi v. Ontario (Human Rights Commission) [25] as authority for the proposition that the reasons in this case were adequate for purposes of procedural fairness, given the nature of the decision.

At issue in that case was a provision of the Ontario Human Rights Code , [26] quite similar in its wording to s. 60(2) of the PSA . The Human Rights Commission decided not to deal with a complaint of discrimination. Its reasons for that decision stated merely that more than six months had elapsed since the events giving rise to the complaint and that the Commission was “not satisfied that the delay was incurred in good faith.” [27] I agree with counsel’s submission that these reasons do little more than state the statutory criteria.

The Divisional Court found that those reasons were sufficient in all the circumstances. However, it is not the result in the Gismondi decision that is important, but rather the basis for the decision. [ 52 ] In Gismondi the court noted that it would have been “preferable” if the Commission had given “more detailed reasons … articulating at least the major points in issue raised by the complainant and considered in arriving at the decision.” [28] However, the reasons were found to be acceptable because they could be considered along with the material that was before the Commission at the time it made its decision.

The complainant in that case was advised that the Commission was considering dismissing his complaint without a hearing, was provided with the submission of the other party and was given the opportunity to make written submissions to the Commission before a decision was made. The complainant was also given a Case Analysis Report prepared by Commission staff, setting out the grounds upon which it would be recommending that the Commission not deal with the complaint.

Also, there was a right under the Human Rights Code to seek reconsideration of the decision, offering another opportunity to obtain further disclosure as to the basis for the Commission’s decision. The Divisional Court noted that Mr.

Gismondi was “given notice of the facts, arguments and consideration upon which the decision [of the Commission was] to be based” prior to the Commission’s decision. [29] It was only in this context that the Court found that the reasons to be meet the requirements of the statute as well as natural justice and fairness. [30] [ 53 ] I would distinguish Gismondi from the case now before the Court. In this case, Mr. Wall received no information whatsoever before the Director made his decision. All he has is that one letter.

Therefore, it is not possible to supplement the actual “reasons” with any other material indicating the basis of the Director’s decision, as was the situation in Gismondi . [ 54 ] Accordingly, I find that the Director breached principles of procedural fairness by failing to provide Mr. Wall with any reasons for dismissing his complaint without investigation. The Director’s Decision is Unreasonable [ 55 ] Finally, the absence of reasons in this case also renders the decision unreasonable.

In Dunsmuir , the Supreme Court of Canada stated (at para. 47): A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. [31] [emphasis added] [ 56 ] The Director’s decision does not meet the Dunsmuir criteria.

The “reasons” provide no justification for the decision; the reasoning of the decision-maker is not transparent; and the basis of the decision is not intelligible. [ 57 ] In Dunsmuir , the Court quoted with approval the words of David Dyzenhaus on the issue of deference, as follows (at para. 48): We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision ”: “The Politics of Deference: Judicial Review and Democracy”, in M.

Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker , at para. 65 , per L’Heureux-Dubé J.; Ryan , at para. 49). [32] [ 58 ] In this case, no reasons were offered other than the fact that six months had elapsed since the date of the matter upon which

the complaint was based. All this says is that the threshold for considering whether to deal with the complaint has arisen and that the Director has jurisdiction to exercise a discretion under the PSA .

It says nothing about why he chose to exercise that discretion in this particular case. [ 59 ] Counsel for the OIPRD suggested in argument that it was in the public interest for the Director not to waste limited resources investigating the actions of Chief Blair in relation to the G20 Summit, because so many investigations have already been done on the issue, including an extensive investigation by the OIPRD itself.

I have three difficulties with this argument. [ 60 ] First, it would be nothing more than speculation for this court to conclude that this aspect of the public interest lies at the root of the Director’s decision, or that it was even considered at all by the Director.

I do not believe this is what the Supreme Court meant by reasons that “could be offered” for a decision. [ 61 ] Second, this complaint is not only about Chief Blair; it is about others in the “higher command” who allegedly gave directions on a particular day on a particular issue. [ 62 ] Third, it is certainly the case that there have been many investigations of police conduct during the G20.

However, I could not find, and counsel was unable to direct me to, any report that gave active consideration to the instructions those in command gave to police officers on that Sunday morning with respect to arresting people who were wearing bandanas. There is nothing in those reports that addresses the precise complaint raised by Mr. Wall.

Therefore, the mere fact that those reports exist does not address the issue, nor can the reports supplement the “reasons” given by the Director. [ 63 ] In the Newfoundland Nurses decision, the Supreme Court of Canada held: In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [33] [ 64 ] I do not know why the Director made the decision that he did.

I cannot say whether the decision falls within a range of acceptable outcomes, because I have no idea what prompted the decision. I do not know if the public interest was considered. I do not know if the principle of discoverability was taken into account. I do not know if the responsibility of senior officers other than Chief Blair was even averted to. I therefore find that the Dunsmuir criteria are not met. This decision cannot be said to be reasonable. G. REMEDY [ 65 ] The Director failed to comply with the requirement of his empowering legislation that he provide reasons for his decision.

By failing to provide reasons, the Director also breached fundamental principles of fairness and natural justice. His decision cannot stand. Further, the decision does not meet the standard of reasonableness, and must be set aside for that reason as well. Accordingly, the decision is quashed. [ 66 ] The difficult question, however, is what should happen next. Usually when issues of this nature result in a decision being quashed, the case is remitted to the tribunal for a decision by a different decision-maker. That cannot be done here.

It is the Director who has the statutory authority to make the decision in question. There can be no substitute. One option, therefore, is to simply return the case to the Director for reconsideration, to be dealt with in accordance with the guidance we have given as to the nature of the discretion under s. 60(2) and the need for reasons if a decision is again made to not deal with the complaint. That is the option urged upon us by counsel for the OIPRD. [ 67 ] The other option, advanced by Mr. Hasan (co-counsel for Mr.

Wall), is for this court to by-pass the Director and order that the complaint be: (1) referred to the Toronto Police Services Board with respect to the Chief of Police for its decision as to whether there should be an investigation of his conduct; and (2) investigated by the OIPRD as to the involvement of senior officers other than the Chief. The effect of that option is to also by-pass the Director’s s. 60 discretion as to whether to deal with the complaint. Mr.

Hasan argues that there can be no valid basis to refuse to conduct an investigation in this case and that this court should exercise its discretion to issue a remedy in the nature of mandamus requiring the Director to perform his duty under the PSA . [ 68 ] Mr. Hasan relies on the Supreme Court of Canada’s decision in Trinity Western University v. British Columbia College of Teachers , [34] in which the Court issued a mandamus order directing the British Columbia College of Teachers (“BCCT”) to give accreditation to a teacher education degree program at Trinity Western University (“TWU”).

The BCCT has a broad discretion under its legislation to grant accreditation such that graduates of particular programs would be recognized as qualified teachers in British Columbia’s public schools. TWU is a religiously based university, which required its students to adhere to its religious stance, including treating homosexuality as sinful.

The BCCT was satisfied with all other aspects of the TWU teacher education program, but refused accreditation because its discriminatory practices were not in the public interest. [ 69 ] The Supreme Court of Canada applied a standard of correctness to the BCCT decision and held that the freedom of individuals to adhere to particular religious beliefs as part of their university experience at TWU took precedence over discriminatory

aspects those religious beliefs, absent any evidence that training teachers at TWU would foster actual discrimination in the public school system. Since the only reason for the denial of certification was the discriminatory practices issue, the Supreme Court found that mandamus was appropriate. [ 70 ] Mr. Hasan submits that the same principle should apply here. The Director has given only one reason for dismissing the complaint (the expiry of time) which has been determined to be improper.

Therefore, he reasons, there is no other possible reason to refuse an investigation and this Court should therefore simply order it. The problem with that line of reasoning is that I have not found that the Director only gave one reason; I have found that he failed to provide any reasons. It does not appear from his letter that the Director addressed any issues other than his jurisdiction to make the order he did.

The discretion to consider whether the public interest mandates dismissing the complaint without investigation, for example, is something the Director may wish to take into account in the exercise of his discretion. Provided his decision is reasonable, and supported by reasons, there can be no basis for this court interfering with the Director’s jurisdiction to make that decision. I note as well that in Trinity Western the Supreme Court was dealing with a correctness standard of review.

There could be only one answer to the question before the BCCT, whereas on a reasonableness standard there may be more than one possible reasonable outcome of the discretionary decision to be made by the Director here. [ 71 ] Mr. Hasan also relies upon the Federal Court of Appeal decision in LeBon v. Canada (Public Safety and Emergency Preparedness) [35] in which the Court ordered the Minister to do what was necessary to accomplish the transfer of a Canadian citizen (Mr. LeBon) from a jail in the United States to a Canadian correctional facility.

To understand the basis for the mandamus order in that case, it is necessary to look at the history of the proceedings. In 2008, Mr. Lebon applied for a transfer to a Canadian prison from the American jail in which he was being held. The decision as to whether to approve the transfer is a discretionary one, to be made by the Minister, but based on certain statutory factors. Correctional Services of Canada (“CSC”) provided a briefing memorandum to the Minister, which concluded, among other things, that Mr. LeBon was not considered to be at risk to reoffend.

The Minister refused the transfer based on a finding that Mr. LeBon would likely commit a criminal organization offence in Canada. The Federal Court of Appeal found this decision to be unreasonable and without any foundation in the evidence. [36] The Court recognized that the Minister was not bound to accept CSC’s recommendation, but held that the Minister had failed to provide any reasons demonstrating why he chose not to accept that advice, nor did his reasons indicate that he had actually weighed all of the relevant factors in the balance before making his decision.

The Court quashed the decision and remitted the matter to the Minister to consider the transfer in accordance with the Court’s reasons. [ 72 ] The Minister then issued another decision, which was essentially the same as his first decision, refusing the transfer based on the same reasoning as before.

On judicial review, the Federal Court found that the Minister had “only paid lip service” to the previous direction of the Court of Appeal and had demonstrated “intransigency” and a “closed mind.” [37] Martineau J. held that in these circumstances, it was appropriate to order the Minister to approve the transfer, stating at para. 26: There is no factual substratum in this case which is in dispute. The Minister made a conclusion based on speculation that cannot be rationally inferred from the facts. More than four years have elapsed since the request for transfer has been made.

The Minister has shown a bias and has ignored the clear evidence on record supporting a transfer. The continued refusal of the applicant’s transfer request has had a serious impact on him, including alienation from his family and support network, frustration of his rehabilitation and deprivation of superior programming in a Canadian prison. [38] [ 73 ] On appeal by the Minister, the Federal Court of Appeal upheld the Federal Court’s decision.

The Court of Appeal held that the mandamus order could be supported for two reasons: (1) the Minister’s entire decision was based on a conclusion about criminal organization activity that was found to be unsupportable and there was therefore no further discretion for the Minister to exercise; and (2) the Minister displayed intransigence and disregard of the prior Court order. On the second point, the Court of Appeal noted: In the unusual circumstances of this case, mandamus is also available to prevent the further delay and harm that would be caused to Mr.

LeBon if the Minister were given a third chance to decide this matter in accordance with law, in circumstances where the Minister did not follow this Court’s earlier decision . . . [39] [ 74 ] Mr. Hasan argues, with considerable persuasiveness, that the OIPRD has demonstrated a closed mind and intransigence on this issue and that remitting the case to the Director for reconsideration will simply generate the same result. He points to the fact that following up on what the arresting officers said about the orders they had been given should have been an obvious line of investigation in the first place.

Further, he submits, once the Director’s attention was pointed to this omission in the second complaint, he still continued to ignore it, showing a closed mind on the issue. I agree with Mr. Hassan’s argument that there is some support for his proposition in both the written factum filed on behalf of the OIPRD and the oral submissions made by OIPRD’s counsel at the hearing before this Court. [ 75 ] Paragraph 59 of the OIPRD factum states:

Even if the complaint could be considered to have been filed in time (i.e. if the starting point is the date the applicant received the Investigative Report relating to his first complaint and not the date of his arrest) it is submitted that it is likely that the complaint would have been screened out pursuant to s. 60(4) 3 (not in the public interest to proceed with the complaint) due to the fact that the issues surrounding the complaint were well known to the decision makers – the Director and the Board – as a result of the various investigations undertaken and reports made regarding the Summit. [Emphasis added.] [ 76 ] In paragraphs 67-70 of the factum, under the heading “No Practical Value or Effect of the Order Sought,” the OIPRD takes the position that there is no point in ordering mandamus because, even if the Director did not screen out the complaint under s. 60 but instead referred it to the Board, the complaint would still not go anywhere.

The factum points to the number of studies and reports that have been done in the aftermath of the G20 as support for the proposition that it is “unlikely” the Board would ask the Director to conduct an investigation and “highly unlikely” that there will ever be disciplinary proceedings against Chief Blair. Similar submissions were made by counsel in oral argument. [ 77 ] The factum also makes the point that the Board has the power to makes its own complaint against Chief Blair, but has failed to do so, even though the Board has seen a copy of Mr. Wall’s complaint.

I see no logical connection between these two points. Mr. Wall’s complaint was provided to the Board for its information. The Board was not asked, or even empowered, at that point to take any action. Initiating its own complaint against Chief Blair is a far more extreme step for the Board than simply asking that an investigation be undertaken given what the one of the officers on the street had said. [ 78 ] The Director’s letter to Mr. Wall said nothing at all about the public interest and there is no indication that he considered the public interest.

I therefore do not understand how counsel can predict what would have been in the Director’s mind at the time, much less what will be in the Director’s mind when the matter is back before him by order of this court. [ 79 ] Further, I do not know how counsel is able to say what is “unlikely” or likely for either the Board or the Director in this situation. I fail to see the connection between the numerous investigations and reports that were done and the suggested inevitability that there can be no basis for even doing an investigation of the conduct of anyone above the rank of officers on the street.

Here, there is a complaint of specific wrongdoing by police against one individual citizen. Both officers who carried out Mr. Wall’s arrest said that they were following orders received at a briefing attended by many other officers. None of the many public inquiries and reports that were carried out deal specifically with what orders were issued, and by whom, as to arresting individuals wearing bandanas at briefing. For the most part, those reports were concerned with the broader systemic issues involved, rather than the narrow and focused issue raised by this individual complaint.

If there is nothing in those reports dealing with what specific orders were given by officers in command, including Chief Blair, on that Sunday morning, how can the reports be used to say no investigation is needed with respect to Mr. Wall’s complaint? [ 80 ] The fact that there have been public inquiries into the police conduct at the time of the G20 Summit was not a barrier to an individual complaint of wrongdoing proceeding to a hearing against two officers alleged to have engaged in specific acts of misconduct.

If those officers, as they themselves allege, were simply following orders from above, why would it be contrary to the public interest to even investigate that allegation? Further, if officers at the lowest ranks can be disciplined notwithstanding all of the public inquiries that have been undertaken, why is the same not true of those above them in seniority? I simply do not see the logic in that proposition. [ 81 ] I find the oral and written submissions on behalf of the OIPRD on this point to be troubling.

However, notwithstanding the submissions of counsel for the OIPRD, I do not see mandamus as a remedy that should be refused because it is useless . I believe that a person, such as the Director, entrusted by statute with a public interest mandate to ensure accountability and transparency in supervising the conduct of police, will not have a closed mind on this issue and will consider the issue before him objectively and in accordance with the statutory requirements, as well as any order of this court.

If a mandamus order were to issue, I feel confident that it would be accepted with an open mind and not defied. [ 82 ] On the other hand, notwithstanding the submissions of Mr. Hasan on behalf of Mr. Wall, I do not see mandamus as an appropriate remedy in this case. [ 83 ] Although mandamus can sometimes be appropriate where a decision-maker has a discretionary power under his or her empowering legislation, those situations are rare. [40] I do not think they arise here. The Director has not yet “used up” his discretion as was the case in Trinity Western .

He has decided only that he will not deal with the complaint because of the lapse in time, based, as I have pointed out, on a faulty understanding of the nature of s. 60(2) and the principle of discoverability. [ 84 ] I do not see this situation as the equivalent of disregarding the direction of the Court as happened in LeBon. I note that in LeBon the first order made by the reviewing court was to remit the issue to the Minister to exercise his discretion in light of the guidance given by the court.

It was only when the Minister disregarded those directions that the court issued a mandamus order. [ 85 ] Accordingly, in my view the appropriate order is that the decision dated February 2, 2012, is quashed. The matter is remitted to the Director for his consideration as to whether to proceed with the complaint, bearing in mind the following factors: (a) Section 60(2) is not a limitation period; (

b) a consideration of the time period referred to in s. 60(2) requires a consideration of principles of discoverability; (

c) in addition to the delay referred to in s. 60(2), the Director is required to consider, at a minimum, the factors listed in s. 60(3); (

d) the complaint is not limited solely to the actions of the Chief Blair, but also raises the possible involvement of other senior

officers; (

e) if the Director decides again not to deal with the complaint under s. 60, he is required to provide reasons for his decision. Costs [ 86 ] The OIPRD submits that there should be no order as to costs because this is public interest litigation and the Director, who is dealing with a new regime, should be able to put forward his

interpretation of the legislation without fear of an adverse costs award. In the alternative, the OIPRD takes the position that the costs claimed are excessive and that an award of between $3000.00 and $5000.00 would be appropriate. [ 87 ] I agree that this is public interest litigation. However, I do not see that as a factor that should deprive Mr. Wall of his costs. He has been successful on this application and is entitled to costs. [ 88 ] Mr. Wall is a private citizen. The law firm of Ruby Shiller Chan Hasan has acted for Mr.

Wall in this matter on a pro bono basis, with their only chance of any recovery being a cost award in the discretion of the court. The issues involved in this proceeding are complex. Mr. Wall would not have been able to present his case effectively without the able assistance of his counsel. It is of considerable benefit to the public and to this court that public interest issues of this nature be brought forward. Unless firms such as this one are prepared to assist, many issues of importance to the public generally and also to specific individuals simply could not proceed. This is an access to justice issue.

In my view, the law firm should be entitled to recover costs in the normal course, on the same basis as is granted to counsel for clients with significant corporate interests every day in our courts. [ 89 ] The costs claimed are $27,845.00, which represents the time spent by three counsel at an appropriate partial indemnity rate. It was appropriate for senior and junior counsel to be involved and this ultimately results in an overall reduction in the total fees claimed. However, given the hours spent, I believe there must have been some duplication of hours in the total.

On the other hand, nothing is claimed for disbursements; there must have been some, even if only for the cost of photocopying and binding the materials. On balance, I consider $20,000.00 to be a fair and reasonable award for costs given the public nature of the respondent, the time spent by counsel, the nature of the case, the complexity of the issues and the public interest in encouraging experienced and competent counsel to take on these kinds of cases. MOLLOY J. ASTON J. HARVISON YOUNG J. Released: June 6,2013 CITATION : Wall v.

Independent Police Review Director, 2013 ONSC 3312 DIVISIONAL COURT FILE NO.: 207/12 DATE: 20130606 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, ASTON and HARVISON YOUNG, JJ. BETWEEN:

JASON WALL Applicant – and – OFFICE of the INDEPENDENT POLICE REVIEW DIRECTOR Respondent REASONS FOR DECISION Molloy J. Aston J. Harvison Young J. Released: June 6, 2013