Canadian Civil Liberties Association et al. v. Civilian Commission on Police Services (Ont.), (2002) 165 O.A.C. 79 (CA)

• Judge: Weiler, Abella and Borins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 04, 2002
• Jurisdiction: Ontario
• Citations: (2002), 165 O.A.C. 79 (CA)

Civil Liberties v. Police Services (2002), 165 O.A.C. 79 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. OC.005

The Corporation of the Canadian Civil Liberties Association, Emilee Aspinwall, Amanda Dorter, Alison Gorbould and Fredericka Potvin (applicants/respondents in appeal) v. Ontario Civilian Commission on Police Services (respondent/appellant) and Police Association of Ontario, Ontario Provincial Police Association and Ontario Association of Chiefs of Police (interveners)

(C36929)

Indexed As: Canadian Civil Liberties Association et al. v. Civilian Commission on Police Services (Ont.)

Ontario Court of Appeal

Weiler, Abella and Borins, JJ.A.

October 3, 2002.

Summary:

Following a political demonstration, Guelph Police arrested the individual applicants pursuant to breach of the peace detention powers. The applicants complained with respect to the decision of the police to transfer the applicants to a maximum security provincial institution where they were strip searched. The applicants submitted that the decision amounted to police misconduct and violated their right to be free from unreasonable search and seizure. The Chief of the police force determined that the complaints were unsubstantiated and no hearing would be held. The Ontario Civilian Commission on Police Services confirmed the Chief's decision. The applicants applied for judicial review of the Commission's decision.

The Ontario Divisional Court, in a decision reported at 147 O.A.C. 270, allowed the application. The court quashed the Commission's decision and remitted the matter to the Commission, differently constituted, to review the Chief's decision afresh. The Commission appealed.

The Ontario Court of Appeal dismissed the appeal with one variation. The court held that while it would quash the Commission's decision, it would not remit that matter back to the Commission. Instead, it declared that, having regard to the appropriate interpretation of ss. 64(6) and 64(7) of the Police Services Act, the only possible conclusion was that the individual applicants were entitled to a hearing to be conducted pursuant to s. 72(8) by a different police force.

Administrative Law - Topic 3214

Judicial review - General - Remedies - A Chief of Police decided not to hold a hearing with respect to a complaint of police misconduct - The Ontario Civilian Commission on Police Services confirmed the decision - The Ontario Court of Appeal affirmed that an application for judicial review of the Commission's decision should be allowed - The court held that it would quash the Commission's decision, but it would not remit the matter back to the Commission - Instead, the court declared that having regard to the appropriate interpretation of the relevant legislation, the only possible conclusion was that the complainants were entitled to a hearing to be conducted by a different police force - The complaint had previously been the subject of review on two or more occasions and no useful purpose would have been served by remitting the matter back to the Commission - See paragraphs 91 to 92.

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - [See Police - Topic 4285 ].

Police - Topic 4064.3

Internal organization - Discipline of members - Complaint - Determination of whether hearing to be held - At issue was the role of the Chief of Police under ss. 64(6) and 64(7) of the Police Services Act in determining whether a hearing into a complaint should be held - The Ontario Court of Appeal held that the role of the Chief was not to make findings of fact or assess the credibility of the complainant - See paragraph 61.

Police - Topic 4064.3

Internal organization - Discipline of members - Complaint - Determination of whether hearing to be held - Section 64(6) of the Police Services Act provided that if a Chief of Police "is of the opinion that the complaint is unsubstantiated, the Chief shall take no action" - Section 64(7) provided that if the Chief "is of the opinion that the police officer's conduct may constitute misconduct ... or unsatisfactory work performance, he or she shall hold a hearing" - The Ontario Court of Appeal stated that under s. 64(6), the facts alleged by the complainant must be more than a self-serving bald allegation and there must be a reasonable basis or an "air of reality" to the evidence before proceeding to the next stage - Otherwise, the complaint was unsubstantiated - If the Chief was not of the opinion that the complaint was unsubstantiated, then, under s. 64(7), the use of the words "may constitute police misconduct or unsatisfactory work performance" meant that if one of the permissible inferences to be drawn from all of the circumstances surrounding the complaint was that misconduct had occurred, then the statutory requirement had been met - Subject to informal resolution under s. 64(11), a hearing had to be held - See paragraph 67.

Police - Topic 4064.3

Internal organization - Discipline of members - Complaint - Determination of whether hearing to be held - Section 64(6) of the Police Services Act provided that if a Chief of Police "is of the opinion that the complaint is unsubstantiated, the Chief shall take no action" - Section 64(7) provided that if the Chief "is of the opinion that the police officer's conduct may constitute misconduct ... or unsatisfactory work performance, he or she shall hold a hearing" - The Ontario Court of Appeal rejected a submission that "reasonable and probable grounds" or "clear and convincing evidence" was the standard to be applied in ss. 64(6) and 64(7) - That standard did not accord with the wording of ss. 64(6) and 64(7), the purpose of the Act, or the overall scheme of the legislation - It was a construction that the words could not reasonably bear - See paragraphs 45 to 52.

Police - Topic 4064.3

Internal organization - Discipline of members - Complaint - Determination of whether hearing to be held - Following a demonstration, Guelph Police arrested the applicants pursuant to breach of the peace detention powers - The applicants complained with respect to the decision of the police to transfer them to a maximum security provincial institution where they were strip searched - The applicants submitted that the decision amounted to police misconduct and violated their right to be free from unreasonable search and seizure - The Chief of Police determined that the complaints were unsubstantiated and no hearing would be held - The Ontario Civilian Commission on Police Services confirmed the Chief's decision - The applicants applied for judicial review of the Commission's decision - The Ontario Court of Appeal affirmed that the application should be allowed - The Commission's decision was patently unreasonable where it applied the wrong evidentiary standard of "clear and convincing evidence" in determining whether a hearing should be held and where the Commission failed to consider the alleged breach of the applicants' rights to be free from unreasonable search and seizure - See paragraph 90.

Police - Topic 4285

Internal organization - Public Complaints Commission (incl. adjudicators and investigators) - Jurisdiction - The applicants complained of police misconduct and alleged a violation of their Charter right to be free from unreasonable search and seizure - The Ontario Civilian Commission on Police Services confirmed a decision not to hold a hearing into the complaint - The Ontario Court of Appeal held that the Commission had explicit jurisdiction to consider the Charter - Item 2 of the Declaration of Principles in s. 1 of the Police Services Act explicitly required consideration of the rights guaranteed by the Charter in policing - The court also held that the Commission had implicit jurisdiction to consider the Charter and that, absent language to the contrary, it must be inferred that the legislature intended the Commission to apply the Charter in exercising its powers - See paragraphs 76 to 81.

Police - Topic 4287

Internal organization - Public Complaints Commission (incl. adjudicators and investigators) - Evidence and proof - [See fourth Police - Topic 4064.3 ].

Police - Topic 4288

Internal organization - Public Complaints Commission (incl. adjudicators and investigators) - Dismissal of complaint (incl. reasons) - A Chief of Police determined that a complaint of police misconduct was unsubstantiated and no hearing would be held - In a letter dated April 13, 2000, the Ontario Civilian Commission on Police Services confirmed the decision - On an application for judicial review of the Commission's decision, the Ontario Divisional Court held that there was an obligation on the Commission to say why it was confirming the Chief's decision - The Commission submitted that the Divisional Court erred because there was no obligation under the Police Services Act to give reasons - The Ontario Court of Appeal held that no reasons apart from the Commission's April 13, 2000, letter were required - By confirming the Chief's decision, the Commission, in essence, adopted her report - The April 13 decision letter was amplified by cross-examination - In reviewing the Commission's decision, the Divisional Court was able to perform its task based on the material before it - See paragraphs 84 to 89.

Police - Topic 4289

Internal organization - Public Complaints Commission (incl. investigators) - Judicial review - The Ontario Civilian Commission on Police Services confirmed a decision of a Chief of Police not to hold a hearing into a complaint of alleged misconduct - The Ontario Court of Appeal held that the standard of review applicable on an application for judicial review of the Commission's decision was patent unreasonableness - See paragraphs 25 to 29.

Cases Noticed:

Browne v. Ontario Civilian Commission on Police Services (2001), 151 O.A.C. 302; 56 O.R.(3d) 673 (C.A.), refd to. [para. 26].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 26].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1; 208 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 26].

Chieu v. Canada (Minister of Citizenship and Immigration) (2002), 280 N.R. 268 (S.C.C.), refd to. [para. 34].

Cooper v. Canadian Human Rights Commission (1996), 204 N.R. 1; 140 D.L.R.(4th) 193 (S.C.C.), consd. [para. 53].

MacBain v. Canadian Human Rights Commission et al., [1984] 1 F.C. 696 (T.D.), revd. [1985] 1 F.C. 856; 62 N.R. 117 (F.C.A.), consd. [para. 56].

Crawford v. Spooner (1846), 18 E.R. 667 (P.C.), refd to. [para. 57].

Pierce v. Law Society of British Columbia (1993), 103 D.L.R.(4th) 233 (B.C.S.C.), refd to. [para. 59].

Yuz, Re (1984), 48 O.R.(2d) 161 (H.C.), affd. (1986), 17 O.A.C. 228; 57 O.R.(2d) 106 (C.A.), leave to appeal denied (1987), 80 N.R. 317; 23 O.A.C. 318; 42 D.L.R.(4th) viii (S.C.C.), refd to. [para. 59].

United States of America v. Sheppard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 34 C.R.N.S. 207; 70 D.L.R.(3d) 136; 30 C.C.C.(2d) 424, refd to. [para. 60, footnote 1].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126, refd to. [para. 60, footnote 1].

R. v. Cinous (J.) (2002), 210 D.L.R.(4th) 64 (S.C.C.), refd to. [para. 60, footnote 1].

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241, refd to. [para. 60, footnote 1].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, refd to. [para. 60, footnote 1].

Aguonie v. Galion Solid Waste Material Inc. et al. (1998), 107 O.A.C. 114; 38 O.R.(3d) 161 (C.A.), refd to. [para. 60, footnote 1].

Dawson et al. v. Rexcraft Storage and Warehouse Inc. et al. (1998), 111 O.A.C. 201; 164 D.L.R.(4th) 257 (C.A.), refd to. [para. 60, footnote 1].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 60, footnote 1].

R. v. 974649 Ontario Inc. (2002), 279 N.R. 345; 154 O.A.C. 345; 159 C.C.C.(3d) 361 (S.C.C.), refd to. [para. 80].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 81].

Lalonde v. Commission de restructuration des services de sante (Ont.) (2001), 153 O.A.C. 1; 56 O.R.(3d) 505 (C.A.), refd to. [para. 81].

R. v. Braich (A.) (2002), 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1 (S.C.C.), refd to. [para. 87].

Renaud v. Société de l'assurance automobile du Québec et al., [1999] 3 S.C.R. 855; 249 N.R. 2, refd to. [para. 92].

Barreau du Québec v. Lachance, [2000] J.Q. No. 317 (S.C.), refd to. [para. 92].

Statutes Noticed:

Police Services Act, R.S.O. 1990, c. P-15, sect. 64(6), sect. 64(7) [para. 30].

Authors and Works Noticed:

Cyessens, P. et al., Ontario Police Services Act, Fully Annotated (2002-2003 Ed.), pp. 120 [para. 63]; 136 [para. 49].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 34].

England, Law Commission Report, Administrative Law: Judicial Review and Statutory Appeals, in Woolf, Lord, Jowell, J., and Le Suer, A.P., Principles of Judicial Review (1999), p. 582 [para. 92].

McLeod, Roderick, Report and Recommendations on Amendments to the Police Services Act Respecting Civilian Oversight of Police (November 21, 1996), generally [paras. 62, 63]; para. 8.5.2 [para. 51].

Ontario, Hansard, Legislative Assembly, Standing Committee on Administration of Justice, Debates (March 17, 1997), generally [para. 35].

Steinecke, Richard, A Complete Guide to the Regulated Health Professions Act (Looseleaf 2001), p. 4-170 [para. 59].

Woolf, Lord, Jowell, J., and Le Suer, A.P., Principles of Judicial Review (1999), p. 582 [para. 92].

Counsel:

Linda M. Plumpton, for the respondents;

Brian G. Whitehead and Lisa Ofiara, for the appellant;

Ian J. Roland and Robert A. Centa, for the interveners, the Police Association of Ontario and the Ontario Provincial Police Association;

David Migicovsky and Lynda A. Bordeleau, for the intervener, Ontario Association of Chiefs of Police.

This appeal was heard on February 4, 2002, before Weiler, Abella and Borins, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Weiler, J.A., and was released on October 3, 2002.