Court File and Parties

Citation: Tadros v. Peel Regional Police Service, 2008 ONCA 775 Date: 2008-11-19 Docket: M36907 (C47919) Court of Appeal for Ontario Before: O’Connor A.C.J.O.

Between:

Magdy Abdelmalik Tadros Applicant/Respondent in Appeal/Appellant in Cross Appeal (Responding Party)

and

The Peel Regional Police Service Respondent/Appellant/Respondent in Cross Appeal (Responding Party)

and

Attorney General of Ontario Intervener (Responding Party)

and

Information and Privacy Commissioner of Ontario Intervener (Responding Party)

and

Canadian Civil Liberties Association Moving Party

Counsel: Marilyn L. Pilkington and Graeme Norton for the moving party, Canadian Civil Liberties Association David Migicovsky for the appellant on appeal / respondent on cross appeal, Peel Regional Police Service Michael T. Doi and Patrick Xavier for the intervener, Attorney General of Ontario

Heard: November 6, 2008

Endorsement

[1] This is a motion brought by the Canadian Civil Liberties Association (CCLA) seeking to intervene in this appeal and cross-appeal, scheduled for hearing on November 17 and 18, 2008. On November 6, 2008, I dismissed the motion and indicated that reasons for my decision would be forthcoming.

[2] The respondent in this appeal sought an order to compel the Peel Regional Police Service (PRPS) to expunge certain records it had retained and to enjoin it from transmitting information contained in these records to anyone. The respondent, as part of his submission, argued that the maintenance of the records and transmission of the information violated certain of his rights under the Canadian Charter of Rights and Freedoms. He was partly successful. The application judge denied the respondent’s request for an order expunging the records but did enjoin the PRPS from disseminating the information in the records to others. Both sides have appealed the decision.

[3] The proposed intervener has substantial experience in promoting and defending the civil liberties of Canadians and in examining the boundaries of acceptable police conduct. I disagree with counsel for the PRPS and find that the Canadian Civil Liberties Association has the expertise that would enable it to make a valuable contribution in matters such as this.

[4] However, the test for permitting intervention does not end once the expertise of the proposed intervener is established. As stated by Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), one must also consider the nature of the case, the issues which arise and potential prejudice to the immediate parties.

[5] Further, as stated by McMurtry C.J.O. in R. v. A.M., [2005] O.J. No. 4017 (C.A.), at para. 4:

In most cases, an intervener who participates as a friend of the court is required, as a term of intervention, to take the record as it exists and not seek to augment the record. This condition is imposed to ensure economy and fairness to the parties and to prevent an intervenor from changing the focus, scope or nature of the proceedings by changing the record.

[6] In this case, the CCLA proposes to raise the following issues for consideration by the court:

• The PRPS failed to comply with requirements of the Police Services Act, R.S.O. 1990, c. P.15, by not establishing policies and practices for disclosure of personal information about individuals.
• The PRPS failed to consider whether disclosure in this particular case was reasonable.
• The PRPS failed to provide a process or opportunity for an individual to be heard on the issue of disclosure.
• The PRPS policies and practices are vague, arbitrary and overbroad.
• Since the PRPS provided access to other police services, affected individuals may receive inconsistent treatment with respect to disclosure, depending on the jurisdiction in which a request for police records is made.

[7] The CCLA proposes to argue that these deficiencies violate rights guaranteed under the Charter. These are important issues. Unfortunately, these issues were not raised or dealt with in the lower court and are raised for the first time by the proposed intervener at the appellate stage.

[8] The applicant in the lower court raised and framed the issues. The PRPS responded to the issues and arguments raised by the applicant. While it appears that Charter issues were raised in respect of the broad questions of retention and disclosure, it is apparent that none of the parties considered the existence, adequacy or application of the particular policies or practices of the PRPS as having a bearing on the outcome of the litigation. Because these were not “live” issues in the lower court, the record in this regard is sparse or nonexistent. Similarly, as they were not raised before him, the decision of the application judge does not touch on the specific issues raised by the proposed intervener. As a result, the record in the lower court and before this court has not been developed so as to permit a proper analysis of the issues put forward by the CCLA. In my view, permitting the intervention of the CCLA to make its proposed arguments, at this point, would have the effect of changing the focus, scope and nature of the proceedings and would inevitably require the creation of a record significantly different from the one now before the court. In my view, to permit the proposed intervention at this time would cause injustice to the PRPS and would necessitate a delay in the hearing of the appeal scheduled for November 17 - a hearing that has already been adjourned on one earlier occasion.

[9] Further, although I attribute no fault to the CCLA for the lateness of this motion, I am satisfied that permitting its intervention less than two weeks before the hearing would be unfair to the PRPS. As stated by McMurtry C.J.O. in Oakwell Engineering Ltd. v. Enernorth Industries Inc., [2006] O.J. No. 1942 (C.A.), at para. 13:

Only in exceptional circumstances would an intervention, bringing more extensive arguments, be permitted so close to the hearing date of an appeal when the parties have already delivered their factums and would have little time to properly prepare for and respond to any new arguments.

[10] As indicated earlier, I am satisfied that the issues raised by the CCLA are important and may well merit consideration. Unfortunately, in my view, such consideration will have to wait for another case when the parties have had the opportunity to provide an appropriate evidentiary record against which to consider the issues. As a result, this motion is dismissed. In the circumstances, there is no order as to costs.

“D. O’Connor A.C.J.O.”