) ) PHILLIP POYTON Applicant – v. –, 2023 ONSC 428

CITATION : Poyton v. OIPRD, 2023 ONSC 428 DIVISIONAL COURT FILE NO .: 978/21 DATE : 20230117 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Sachs, O’Brien and Schabas JJ. BETWEEN: ) ) PHILLIP POYTON Applicant – and – OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR Respondent ) ) ) ) ) ) ) ) ) Phillip Poyton, in person Maeve Mungovan, for the Respondent ) ) ) HEARD at Toronto by videoconference: January 4, 2023 Schabas J.

REASONS FOR DECISION Overview [ 1 ] This is an application for judicial review of a decision of the Office of the Independent Police Review Director (the “ OIPRD ”), which screened out a complaint filed by Phillip Poyton (the “Applicant”) against a Peel Regional Police officer. The OIPRD determined, pursuant to s. 60(4) of the Police Services Act , RSO 1990, c. P.15 (“ PSA ”), that it was not in the “public interest” for it to deal with the complaint. The Applicant, Mr.

Poyton, seeks an order directing the OIPRD to investigate the complaint or, alternatively, remit it to another decisionmaker at the OIPRD. [ 2 ] For the reasons that follow, the application is dismissed. The OIPRD found there was no basis in the complaint to conclude that the officer acted with malice or in bad faith. It found that sending the complaint to an investigation “would be unlikely to establish grounds that misconduct occurred.” The decision of the OIPRD was reasonable and is entitled to deference.

Background [ 3 ] In his complaint to the OIPRD, the Applicant alleged misconduct and neglect of duty contrary to the Code of Conduct under the PSA , O.Reg. 268/10 . The complaint arose from the police response to the Applicant’s report of an incident on August 12, 2021 that involved the Applicant and an acquaintance. [ 4 ] Mr. Poyton had contacted a Peel Regional Police Service officer on August 13, 2021 to report that he had been assaulted by an acquaintance in a parking lot outside an adult entertainment establishment they had attended together the previous evening. Mr.

Poyton described being hit on the head several times. He also said that he struck the other person in self-defence by kicking him. Mr. Poyton subsequently sent the officer photographs of injuries he said he suffered from the assault. Mr. Poyton further advised that he had seen a doctor who said he had suffered a concussion. [ 5 ] The officer spoke to the person alleged to have assaulted the Applicant and advised Mr. Poyton that, “after hearing his side it sounds like both of you engaged in this altercation and there’s no grounds for an arrest.” Mr.

Poyton was also advised by the officer that the officer had told the acquaintance to cease communications with Mr. Poyton. The officer advised Mr. Poyton to do the same.

[ 6 ] The officer obtained footage from video cameras at the scene. These did not show an assault, although the camera focused on the parking lot was not working. On August 21, 2021, the officer contacted Mr. Poyton to advise him that the police did not have grounds to lay a criminal charge, stating that a charge would get “tossed out so quickly.” Mr. Poyton seemed to accept the decision in light of the absence of video evidence. [ 7 ] Mr. Poyton submitted a complaint to the OIPRD on November 24, 2021, a few months after the incident.

In it, he complained that the officer had failed to include any details of the Applicant's injuries in the occurrence report and had mischaracterized the altercation as consensual. The Applicant also complained that the officer had ignored the fact that the acquaintance has a criminal record whereas the Applicant has no criminal record and is a licensed accountant. The Applicant also asserted that the officer failed to protect him or refer him to victim services.

He also complained that the officer failed to investigate an unrelated allegation he made against the acquaintance, about which the Applicant had no direct knowledge. [ 8 ] The Applicant appended numerous documents to his complaint, including, among other things, medical and academic records, confirmation of his employment, GPS data of his movements on August 12, 2021, criminal record checks and details of offences committed by the acquaintance, photographs of injuries, a report the Applicant commissioned from a private investigator, and records of the officer’s investigation, including transcripts of telephone conversations between the Applicant and the officer.

The role of the OIPRD [ 9 ] The OIPRD is an independent civilian agency established under the PSA to oversee and manage a public complaints system for police misconduct in Ontario. A member of the public may complain to the OIPRD about policies or services of a police force, or the conduct of individual police officers. Pursuant to s. 59 of the PSA , once a complaint is received, it is screened to determine whether it will proceed to an investigation.

All complaints are presumptively screened “in” to be forwarded for investigation, unless the OIPRD exercises its discretion to screen the complaint “out” on the grounds set out in s. 60(4) of the PSA : The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if, in his or her opinion, one of the following applies: 1. The complaint is frivolous or vexatious or made in bad faith. 2. The complaint could be more appropriately dealt with, in whole or in part, under another Act or other law. 3.

Having regard to all the circumstances, dealing with the complaint is not in the public interest. [ 10 ] The term “public interest” is addressed in Rules 6.4 and 6.5 of the OIPRD Rules of Procedure , as follows: 6.4 In determining whether or not to deal with a complaint, the Director will have regard to the public interest. Public interest will always include a balancing of interests and a broad range of considerations. Some of the factors which the Director may consider will include: (

i) the effect of a decision to deal or not deal with a complaint on public confidence in the accountability and integrity of the complaints system (ii) the number of complainants involved (iii) the seriousness of the complaint, including the seriousness of the harm alleged (iv) whether the complaint relates to an incident or event that has already been the subject of an earlier complaint (

v) whether there are issues of systemic importance or broader public interest at stake (vi) the likelihood of interfering with or compromising other proceedings (vii) whether another venue, body or law can more appropriately address the substance of the complaint 6.5 It is not in the public interest to screen in a complaint that does not, on its face, disclose a breach of the Act or the Code of Conduct. [ 11 ] Where a complaint is not screened out, it is forwarded for investigation to determine if there are reasonable grounds to believe that misconduct has occurred.

Allegations of misconduct classified as serious will then proceed to a disciplinary hearing. The decision of the OIPRD [ 12 ] On December 15, 2021, the OIPRD released a decision screening out the Applicant's complaint under s. 60(4) of the PSA on the basis that it would not be in the public interest to refer it for investigation. The OIPRD explained that courts afford police officers broad discretion in investigation decisions so long as police officers exercise their discretion reasonably.

The OIPRD concluded that the officer had investigated the incident and determined “that there was no sufficient basis to lay charges.” There was no evidence suggesting that the officer had acted “maliciously or unreasonably”, and therefore “an investigation would be unlikely to establish grounds to believe that misconduct had occurred.” It was therefore not in the public interest for the complaint to proceed to an investigation. Jurisdiction and standard of review

[ 13 ] This court has jurisdiction to review the OIPRD decision pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act , RSO 1990, c. J.1 . [ 14 ] Decisions to screen out complaints are subject to review on a reasonableness standard: Wendt v. OIPRD , 2022 ONSC 166 (Div. Ct.); Wijayaratnam v. Office of the Independent Police Review Director , 2021 ONSC 6303 (Div Ct.); Korchinski v. Office of the Independent Police Review Director , 2022 ONSC 6074 (Div. Ct.). [ 15 ] The Applicant submits, however, that a standard of correctness should apply, for two reasons.

First, the Applicant argues that the OIPRD exceeded its jurisdiction by considering the deference owed to police investigation decisions and by concluding there was a lack of evidence to support an allegation of misconduct. This, the Applicant says, collapses the role of screener, investigator and adjudicator.

Second, the Applicant has raised a constitutional issue, or general question of law, regarding the meaning of “public interest” under s. 60(4) of the PSA , arguing that this engages a complainant’s rights under s. 7 of the Canadian Charter of Rights and Freedoms , which ought to be considered when determining whether to screen out complaints. [ 16 ] Neither argument has merit. [ 17 ] In its decision, the OIPRD stated: While you may disagree with the decision by the officer, please be informed that courts and tribunals have recognized the broad discretion inherent in police investigation and are extremely reluctant to second-guess investigative decisions made by officers as long as they stay within the bounds of reasonableness.

This discretion extends to the decision of whether to interview a witness or to charge an individual with a criminal offence. [ 18 ] The reference to the deference shown police decisions does not mean that the OIPRD exceeded its jurisdiction. Deference to an officer’s investigative decisions is well-established. In 495793 Ontario Ltd. v.

Barclay , 2016 ONCA 656 , 132 O.R. (3d) 241, at paras. 51-52 , the Court of Appeal stated very clearly that an officer’s function is to “make a conscientious and informed decision as to whether charges should be laid”, and that an officer is not “required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.” [ 19 ] The OIPRD’s consideration of the legal framework surrounding its decisions and of the evidence necessary to support an allegation of misconduct was neither investigative nor adjudicative.

Rather, it was simply a recognition of its task when screening complaints to determine whether the complaint is not in the public interest. In making this determination, the OIPRD must bear in mind Rule 6.5.

Accordingly, courts’ and tribunals’ “reluctance to second-guess investigative decisions…within the bounds of reasonableness” is relevant when deciding whether an allegation of misconduct or neglect of duty does not, on its face, amount to a breach of the PSA or Code of Conduct . [ 20 ] Turning to the Charter issue, the OIPRD is mandated to consider the “public interest” and is provided with a broad discretion to do so, which may include consideration of the rights of complainants and, perhaps more directly, the rights of officers. This includes Charter rights, but it does not change the standard of review.

In Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, at para. 110 , the Supreme Court observed that “ where the legislature chooses to use broad, open-ended or highly qualitative language — for example, ‘in the public interest’ — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language.” Thus, whether or not Charter rights are considered, the

interpretation of the “public interest” in the PSA is for the OIPRD to determine, and so long as it does so reasonably and “in light of the surrounding context”, its decision is entitled to deference by the courts.

Issues and Discussion [ 21 ] The Applicant submits that the OIPRD decision should be set aside for a number of reasons: • The OIPRD considered an irrelevant factor by stating that the Applicant’s complaint included the failure to lay a charge; • The OIPRD failed to address the complaint that no protection was offered to the Applicant by the officer; • The OIPRD did not address the complaint that the officer failed to investigate another potential offence by the acquaintance; • The OIPRD improperly classified the incident as a “consent fight” and mis-classified the level of assault; • The OIPRD wrongly referred to the acquaintance as a “friend”; • The OIPRD did not consider the criminal background of the acquaintance, or contrast it with the Applicant’s background that did not include prior criminal behaviour; • The OIPRD acted unreasonably in requiring evidence that the officer acted in bad faith or with malice when the officer had not referred to the Applicant’s injuries in his report. [ 22 ] None of these points makes the decision of the OIPRD unreasonable.

As the Supreme Court stated in Vavilov , at paras. 83 and 85 : …the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome….[A] reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.

[ 23 ] The extent of reasons provided in each case will depend on the context. The standard is not perfection and reasons for a decision do not necessarily need to include all the arguments or details that were made. As the Court of Appeal stated in Wall v. OIPRD , 2014 ONCA 884 , 123 O.R. (3d) 574, at paras. 62-63 : “[t]he Director's reasons for screening out a complaint …need not be lengthy.

They need not be complex.” What is required is that the reasons demonstrate an understanding of the essence of the Applicant's complaint and explain why it was not in the public interest to send the complaint for investigation. [ 24 ] Additionally, a decision to screen out a complaint has limited consequences for a complainant, which also informs the rigour of the reasonableness review: Vavilov , para. 133 . Mr. Poyton is not entitled to a particular outcome or resolution of his complaint.

The outcome has little impact on him, the aim of the complaints system being to remediate misconduct and improve police accountability rather than provide direct redress to the complainant. [ 25 ] The OIPRD’s decision demonstrates an understanding of the essence of the complaint and provides a coherent and reasonable explanation for screening out the complaint. Although the decision did not address every issue raised by Mr. Poyton, the OIPRD appreciated the scope of the complaint.

As the decision stated in the second paragraph: “your complaint centers on: the officer's decision not to investigate the alleged assault incident further and lay a charge; leaving out all the details of your injuries in the police report; and misclassifying the assault.” [ 26 ] The OIPRD addressed complaints about the officer’s investigation. It observed that the officer spoke to the parties. In addition, although not in the decision, the record shows that the officer sought video evidence and attended at the scene of the incident.

The OIPRD’s finding that the officer “investigated the incident and concluded that there was no sufficient basis to lay charges” is reasonable, as is its conclusion that “[s]ending the complaint for an investigation would be unlikely to establish grounds to believe that misconduct occurred.” [ 27 ] To the extent the OIPRD regarded the complaint as relating to the failure to lay a charge against the acquaintance, this follows from the details of the complaint including, for example, the assertion that the officer considered the wrong level of an assault and that he regarded the incident as “consensual.” [ 28 ] The reference by the OIPRD to the acquaintance as a “friend” of Mr.

Poyton’s is reasonable given that the two of them had a prior relationship, and also that Mr. Poyton contacted the acquaintance on the day of the incident, picked him up from his home, and purchased alcohol for him, following which they engaged in recreational activities together. [ 29 ] It is reasonable that the OIPRD did not address the allegation that the officer failed to consider the acquaintance’s criminal background and contrast them with Mr. Poyton’s lack of a criminal history. As the Supreme Court stated in R. v.

Handy , 2002 SCC 56 , [2002] 2 SCR 908, at para. 72 , “[b]ad character is not an offence known to the law”, and is not a basis to charge someone with an offence. [ 30 ] The OIPRD did not address the alleged failure to provide protection. However, as the officer had concluded that no offence had taken place, Mr. Poyton was not a victim of a crime and the officer had no duty to assist or protect him: PSA , s. 42(1) (c); Canadian Victim Bill of Rights , S.C. 2015, c. 13, s. 2 .

While it might have been preferable for the OIPRD to have addressed the issue directly, its failure to do so does not make the decision unreasonable. The same is true for the OIPRD not addressing the complaint that the officer failed to investigate a separate offence which did not involve Mr. Poyton and about which he had no first-hand knowledge. Indeed, it likely would have been improper for the officer to have divulged anything about an investigation into that other offence to Mr. Poyton: Code of Conduct , s. 2(1)(e) [ 31 ] Finally, the OIPRD addressed the complaint that the officer made no reference to Mr.

Poyton’s injuries despite being provided with photographs and other details of them. The OIPRD stated: … in the absence of specific information in your complaint that would indicate malice or bad faith on the part of the officer, the action you described does not also amount to misconduct. Generally, police reports are written from police perspective. The OIPRD has no authority to change or have the police change their own report.

As such, if you disagree with the content of the report, you may wish to contact the police service records management department directly to see what options may be available to you. [ 32 ] The OIPRD’s decision on this point is also reasonable. It found that what the officer was alleged to have included or not included in his report did not suggest malice or bad faith on the part of the officer. The complaint, therefore, did not disclose a basis, on its face, for a finding of neglect of duty or discreditable conduct by the officer.

As such, it was consistent with Rule 6.5 to find that the complaint was not in the public interest. Again, while it would have been preferable for the OIPRD to cite Rule 6.5 explicitly, its failure to do so is not unreasonable in light of the reasons provided. Conclusion [ 33 ] The application is dismissed. The parties have agreed that there should be no order as to costs. Schabas J. I agree________________________________

Sachs J. I agree________________________________ O’Brien J. Released: January 17, 2023 CITATION : Poyton v. OIPRD, 2023 ONSC 428 DIVISIONAL COURT FILE NO .: 978/21 DATE : 20230117 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Sachs, O’Brien and Schabas JJ. PHILLIP POYTON Applicant – and – OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR Respondent REASONS FOR decision Schabas J. Released: January 17, 2023