ONTARIO CIVILIAN POLICE COMMISSION

Safety, Licensing Appeals and Standards Tribunals Ontario

COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Citation: Ryan v. Ramos, Kharbar, and Toronto Police Services, 2019 ONCPC 1

Date: April 10, 2019

File Number: 18-ADJ-011

Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended

Between:

Keith Ryan

Proposed Appellant

and

Cst. Paul Ramos, Cst. Manpreet Kharbar, and Toronto Police Service

Respondents

and

Office of the Independent Police Review Director (Director)

Intervener

MOTION DECISION

Representatives:

Nima Hojjati, for the proposed appellant Harry G. Black Q.C., for Cst. Kharbar Peter M. Brauti and Alex Alton, for Cst. Ramos Ian Johnstone and Philip Wright, for the Toronto Police Service Pamela Stephenson Welch and Miriam Saksznajder, for the Director

By written submissions

Heard by: D. Stephen Jovanovic, Associate Chair

INTRODUCTION

1This decision deals with a motion brought by Keith Ryan (Ryan) pursuant to section 87(4) of the Police Services Act (PSA) for leave to appeal from the decision of the Honourable Justice J. Douglas Cunningham (the Hearing Officer) dated June 27, 2018. As will be explained in detail below, in that decision the Hearing Officer stayed PSA charges brought against Csts. Ramos and Kharbar (the officers), concluding that their continued prosecution would amount to an abuse of process.

2The motion is opposed by the officers but supported by the Toronto Police Service (TPS) and the Director.

DISPOSITION

3For the reasons that follow, leave to appeal is granted.

BACKGROUND

4On April 24, 2011, Ryan was arrested and subsequently charged with assaulting a Toronto Parking Enforcement Officer, Devon Henry. Ryan was taken to the TPS 14 Division where, in the search room and in the presence of the officers, he was assaulted by Henry.

5Henry was convicted of assault on December 13, 2012 following a trial before Justice Harris in the Ontario Court of Justice. Henry’s defence of non-insane automatism, caused by the assault on him by Ryan, failed. The officers, who took Ryan to the ground after the assault by Henry, were acquitted of assault causing bodily harm on Ryan on April 24, 2014 following a trial before Justice Kelly in the Ontario Court of Justice.

6On July 30, 2014 the Director released his investigative report substantiating the following four allegations of misconduct against the officers:

i) Unlawful or Unnecessary Exercise of Authority, for grounding Ryan without lawful authority (both officers);

ii) Deceit for lying to Sgt. Rowsome about how Ryan sustained his injuries (Cst. Ramos);

iii) Deceit for not informing Sgt. Rowsome of how the injuries to Ryan occurred (Cst. Kharbar); and

iv) Neglect of Duty for failing to keep Ryan safe while in custody (both officers).

7Under section 83(17) of the PSA, if six months have elapsed from the prescribed time under section 83(18) of the PSA, a notice of hearing setting out the exact charges cannot be served on police officers unless the police services board “is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing.”

8The Chief of the TPS applied to the Toronto Police Services Board for the necessary extension of time to serve the notice of hearing on the officers. The extension was granted on May 15, 2015, just over four years after incidents giving rise to the charges. The officers were served with the notice of hearing the following month.

9The officers first appeared before other hearing officers in the summer of 2015. It was not until their seventh appearance, in May 2016, that the Hearing Officer was appointed by the Chief of the TPS. The Director had ordered that the Hearing Officer be someone from outside of the TPS. A three-week hearing was scheduled to begin on April 3, 2017.

10Henry, who had long claimed to have no memory of his assault on Ryan in the search room, was contacted by the prosecution in March 2017. Henry gave a video statement, having recovered his memory, on April 2, 2017. The hearing was adjourned to May 2017. The officers appeared before the Hearing Officer again in July 2017, at which time their motions for disclosure and dismissal of the charges as an abuse of process were scheduled to be heard in October 2017.

11However, in August 2017 the officers were advised that they were once again subjects of a criminal investigation over their actions during the assault of Ryan in the search room over six years earlier. The officers’ motions were put over to February 2018, only to be adjourned again as 13 volumes of materials were delivered two days before the motions were to be heard. It was not until May and June 2018 that the motions were finally heard and the proceedings against the officers stayed.

12In order to understand the Hearing Officer’s rationale for staying the proceedings, it would be useful to reproduce paragraph 30 of his decision:

What happened here? Mr. Ryan filed his complaint with the OIPRD on May 2, 2011. Is there any reason why, given the intervening criminal proceedings, it took the OIPRD nearly 39 months from Ryan’s complaint to conclude its investigation? By that time, the criminal proceeding against the officers had been ongoing since they were charged on August 9, 2011. Their trial took place over a number of days in July 2013 and in April 2014, they were acquitted by a judge of the Ontario Court. Why was full disclosure not made available by the OIPRD to the prosecution in advance of the officers’ first Tribunal attendances in the summer of 2015? By then, they would have had full details of the criminal trial and the benefit of the judge’s reasons. Why, given the nature of the complainants’ evidence at the criminal trial and its complete rejection by the trial judge, did the OIPRD ever direct the TPS to proceed against these officers? Why did it take so long for the TPS to retain a Hearing Officer? Why did it take over 48 months for the Toronto Police Services Board to grant the Chief’s application for an extension in order to serve Notices of Hearing? Why did the OIPRD insist upon interviewing the officers while the criminal proceeding was ongoing, leading in my view to an unnecessary judicial review hearing in 2013? Why was the prosecution not prepared to accede to the obvious in relation to the joinder issue causing a wholly unnecessary waste of time? Why did it take as long as it did to obtain the expert report regarding unnecessary use of force? Why did the prosecution wait until days before the hearing to interview Henry who they ought to have known had recovered his memory in 2013? These and other questions remain unanswered, but I now turn to the law.

13The Hearing Officer began his analysis of the applicable law in the following terms:

The seminal case dealing with delay in administrative proceedings is Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 and I am guided by the reasoning of Bastarache J. therein. In certain circumstances, it may be oppressive and a violation of fundamental principles of justice offending the community’s sense of fair play and decency to allow long delayed proceedings to continue. In effect, it is a balancing act and clearly it must be found that “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.” As well, the impugned conduct must amount to one of the clearest cases. Bastarache J. goes on to quote L’Heureux-Dube J. in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601…for there to be abuse of process, the proceedings must be “unfair to the point that they are contrary to the interests of justice.” Accordingly, the court in Blencoe set out the factors to be considered in this determination: 1. The nature of the case, 2. The complexity of the case, 3. The facts and issues, 4. The purpose and nature of the proceedings, 5. Whether the respondent contributed to or waived the delay, and 6. Other circumstances of the case.

14The Hearing Officer had before him affidavits from the two officers “whose careers have been in limbo for an unacceptably long period of time, through no fault of theirs.” The Hearing Officer concluded that to continue with the prosecution would be oppressive; there would be significant damage to the public interest if the proceedings were to continue, damage that clearly outweighs any harm to the public by having the proceedings halted; and the continuation of the proceedings would cause significant prejudice to the officers such that the public’s sense of decency would be offended.

ISSUES

15Section 87(4) of the PSA provides that the Commission “may hold a hearing, if it considers it appropriate” but does not otherwise provide any further guidance.

16There is no disagreement among the parties as to the test to be applied by the Commission when deciding whether leave to appeal should be granted. In Grychtchenko and McCartney and Toronto Police Service, 2015 ONCPC 20 the Commission wrote the following:

Leave to appeal should be granted if one of the following conditions are met:

1. The decision is clearly wrong on its face and the appeal involves matters of such importance that leave ought to be granted;

2. There is a conflicting decision of the Commission on the matter involved in the proposed appeal and it is desirable that leave be granted;

3. The matters raised in the proposed appeal are of significant importance to the policing profession as a whole and the community at large.

ANALYSIS

17In my view, this matter does raise issues that are of significant importance to the policing profession as a whole and the community at large and leave to appeal should be granted. As will be explained below, there are a number of circumstances, taken in combination, that meet the third branch of the test. Accordingly, there is no need to deal with the first two branches of the test for leave to appeal. I would add, however, that the issue as to whether the decision is clearly wrong on its face is one that no doubt will be fully argued on the appeal.

18Ryan submits that the Hearing Officer did not properly apply the factors set out in Blencoe and that he did not “consider how there might be significant damage to the public interest” if there were a stay of proceedings. He further submits that delay without more does not warrant a stay of proceedings as an abuse of process. Ryan noted that no delay was attributed to him.

19The TPS submits that the Hearing Officer gave no thought to procedural fairness or natural justice owed to Ryan. It submits that the Hearing Officer focused his decision on the public interest, as opposed to Ryan’s interests, if the hearing were to continue. The TPS adds that the Hearing Officer failed to take into account that Ryan sustained serious injuries, the cause of which has never been determined, while in police custody. Further, the TPS submits that the Hearing Officer failed to properly analyze the Blencoe factors and failed to properly attribute the reasons for the delay in the proceeding.

20The Director submits that the Hearing Officer “not only erred in misapprehending the nature of the intersection of the public complaints process and the criminal process, but also misapprehended the evidence that was before him on the stay application.” The basis for this submission is the Hearing Officer’s rhetorical questions about the timing of the prosecution and the very decision to proceed with it.

21The Hearing Officer wrote the following at paragraph 30 of his decision.

What happened here? Mr. Ryan filed his complaint with the OIPRD on May 2, 2011. Is there any reason why, given the intervening criminal proceedings, it took the OIPRD nearly 39 months from Ryan’s complaint to conclude its investigation? By that time, the criminal proceeding against the officers had been ongoing since they were charged on August 9, 2011. Their trial took place over a number of days in July 2013 and in April 2014, they were acquitted by a judge of the Ontario Court.

Why, given the nature of the complainants’ evidence at the criminal trial and its complete rejection by the trial judge, did the OIPRD ever direct the TPS to proceed against these officers? Why did it take so long for the TPS to retain a Hearing Officer? Why did it take over 48 months for the Toronto Police Services Board to grant the Chief’s application for an extension in order to serve Notices of Hearing? Why did the OIPRD insist upon interviewing the officers while the criminal proceeding was ongoing, leading in my view to an unnecessary judicial review hearing in 2013?

22The difficulty with some of these questions is that they fail to take into account the impact of the criminal proceedings against the officers on the Director’s investigation and the eventual misconduct charges set out in the Notices of Hearing. The Director completed his investigation within three months of the disposition of the criminal charges against the officers. The Director attempted to interview the officers during the criminal proceedings but they refused. The Director issued a summons to the officers in order to compel an interview but they brought an application to Divisional Court to quash the summons issued to each of them.

23In Ramos et al v. The Independent Police Review Director, 2013 ONSC 4395, dated July 5, 2013, the Divisional Court wrote the following:

The applicants do not object to being interviewed by the IPRD and only seek a deferral of the interviews until after the conclusion of the criminal proceedings. The testimony of the applicants is important to the investigation of the IPRD. This finding was essentially conceded by the applicants when they agreed to be interviewed after the criminal proceedings are concluded. However, IPRD’s interest in receiving this testimony, at this time, must be balanced against the rights of the applicants….IPRD are directed to adjourn any interviews of the applicants until after the trial of their criminal proceedings is concluded. [Emphasis added.]

24That decision explains why it took 39 months for the Director to conclude his investigation: he was waiting for the criminal proceedings to conclude so that he could interview the officers. It also explains, in part, why it took 48 months for the Toronto Police Services Board to grant the Chief’s application under section 83(17) of the PSA.

25The Hearing Officer questioned why the Director wanted to proceed with misconduct charges at all given Ryan’s evidence and its “complete rejection” during the criminal trial of the officers. In his decision dismissing those charges, Justice Kelly wrote the following:

155. Having considered the testimony of Constables Ramos and Kharbar in light of the evidence as a whole, I am dubious of their account. I do not accept their evidence denying involvement in an assault on Mr. Ryan; nor, however, can I reject their evidence as not raising a reasonable doubt.

156. But the foundation of the Crown’s case is Keith Ryan. That foundation crumbled under scrutiny in light of all the evidence. Another of the prosecution’s pillars, Sergeant Rowsome, is disturbingly fragile. And questions linger with the evidence of Sergeant Facoetti.

157. A thick cloud of suspicion hangs over this case. I sensed a number of witnesses were hiding something. But on the whole of the evidence, I am not satisfied that Constables Ramos and Kharbar are guilty of assaulting Ryan, either as principals or parties.

26The standard of proof in PSA proceedings is not that of beyond a reasonable doubt, but the somewhat lower standard of clear and convincing evidence. The fact that criminal charges are dismissed in any particular matter is something that the Director or a police service should take into account in deciding whether to proceed with misconduct charges, but a dismissal should not be determinative of that issue.

27I recognize the officers’ submissions that the Hearing officer did not conflate the standard of proof but rather found that the decision to pursue the PSA charges was questionable given the adverse credibility finding against Ryan by Justice Kelly. However, the fact remains that Ryan was seriously injured while in the control of the two officers and the “cloud of suspicion” has not yet been lifted.

28In Wall v. Office of the Independent Police Review Director, 2014 ONCA 884, the court wrote: “Complaints regarding police misconduct raise issues that are important to society, both from the perspective of the complainant and that of police services.” So too is a complaint of importance to the complainant. It does not appear that the Hearing Officer took into account the rights of Ryan when considering the stay application.

29The issues in this matter that, in my view, are of significant importance to the policing profession as a whole and the community at large may be briefly summarized as follows. What role do a public complainant’s rights or interests, if any, play in a Blencoe analysis in deciding whether a delay in a proceeding justifies a stay of the proceeding? Should a PSA prosecution instigated by the Director be frustrated because of delays in its investigation arising from criminal proceedings against the involved and other officers? What is the impact, if any, on a PSA prosecution if criminal charges are dismissed against the involved officers?

30In arriving at the above conclusion, I am mindful of the officers’ submissions as to the prejudice they continue to experience because of the delay in the resolution of this matter. In particular, the affidavit of Constable Kharbar details what he has had to endure since August 2011. As stated in Grychtchenko, the interests of a complainant and an officer must be balanced in deciding a leave to appeal application. Notwithstanding the fact that the officers have undoubtedly suffered some prejudice as a result of the delays in this matter, balancing the interests of the parties tips in favour of allowing the motion for leave to appeal.

31The Commission will expedite the hearing of the appeal to the extent possible with the expected cooperation of the parties in an effort to alleviate the any further prejudice to the officers.

ORDER

32The motion for leave to appeal from the decision of the Hearing Officer, dated June 27, 2018, is granted. A Pre-Hearing Conference will be scheduled as soon as is practical in order to expedite the hearing of the appeal.