Ontario Civilian Police Commission
Safety, Licensing Appeals and Standards Division
Citation: Raj Biring v. Peel Regional Police Service, 2019 ONCPC 4
Date: October 28, 2019
File: 18-ADJ-013
In the Matter of an Appeal under Section 87 (1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
Inspector Raj Biring
Appellant
and
Peel Regional Police Service
Respondent
DECISION and ORDER
Representatives:
For the Appellant: Clayton Ruby, Stephanie DiGiuseppe
For the Respondent: David Migicovsky, Jessica Barrow
By written submissions
Heard by: D. Stephen Jovanovic, Associate Chair
INTRODUCTION
1The appellant was found guilty of one count of discreditable conduct under section 2(1)(a)(ii) of the Code of Conduct, O.Reg. 268/10 pursuant to the Police Services Act (the PSA) following an 11-day hearing before Superintendent (retired) Robert F. Gould (the Hearing Officer). The appellant was also acquitted of one count under section 2(1)(a)(xi) of the Code.
2At the relevant time, the appellant was an Inspector with the respondent’s recruitment bureau and the misconduct charges arose from his interaction with a potential recruit. Briefly, the first count alleged that the appellant made “profane, abusive or insulting comments related to a person’s race, ancestry, place of origin, colour or ethnic origin….”. That person, Sandeep Kandola, was eventually rejected as a candidate.
3Parts of the hearing were conducted in camera and in particular when exhibits 36 and 42 were discussed. The transcripts of the hearing filed with the Commission include the in camera portions of the hearing.
4Following the appellant’s appeal to the Commission, the respondent brought a motion requesting a sealing order with respect to these exhibits, certain portions of the transcripts reciting the evidence heard in camera, paragraphs of the appellant’s factum that refer to the two exhibits and the affidavit delivered in support of the motion sworn to by a legal assistant (the subject material). The appellant also sought an order that any part of the hearing before the Commission that may deal with the subject material be closed to the public.
5The appellant does not oppose the motion.
DISPOSITION
6For the reasons that follow, the relief claimed by the respondent is granted, in part.
ANALYSIS
7Proceedings before administrative tribunals, like courts, are presumptively open to the public. This open court principle also applies to documents filed in those proceedings, including any materials filed in support of a request for a sealing order.
8The test to be applied by a court when considering whether to grant a sealing order was recently confirmed in Donovan v. Sherman Estate, 2019 ONCA 376 where the court wrote the following at paragraphs 6 and 7:
That test has two parts. First, the party seeking the order must show that the order is necessary to prevent a serious risk to an important public interest which cannot be protected by other reasonable alternative methods. Second, the party seeking the order must establish that the salutary effects of the sealing order outweigh its deleterious effects, including the negative effects on the right to freedom of expression and other public interests served by open and accessible court proceedings: Atomic Energy of Canada v. Sierra Club of Canada, 2002 SCC 41, [2002] 2 S.C.R. 522, at para. 53.
If the party seeking the order cannot show the requisite necessity required of the first stage of the inquiry, a sealing order cannot be granted and there is no need to move on to the balancing or proportionality component of the test. When determining whether the moving party has shown that the sealing order is necessary, the nature and significance of the public interest in access to the material is irrelevant: H. (M.E.) v. Williams, 2012 ONCA 35, at paras. 31-32.
9However, the foregoing two-part test insofar as it applied to administrative tribunals has been to an extent supplanted by the Tribunal Adjudicative Records Act, 2019, S.O. 2019, c. 7, Schedule 60 (TARA). Section 2(2) reads as follows:
(2) A tribunal may, of its own motion or on the application of a person referred to in subsection (3), order that an adjudicative record or portion of an adjudicative record be treated as confidential and that it not be disclosed to the public if the tribunal determines that,
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.
10The principal submissions of the respondent as set out in its factum are as follows:
Exhibits 36 and 42 contain highly personal information regarding members of Mr. Kandola’s family and others, including their driving history and criminal history. Most importantly, the exhibits contain highly sensitive police intelligence information, obtained in part from a confidential informant. This intelligence information is not otherwise available to those individuals named in the report, or to the public. The report included, in particular, driving and criminal histories for various of Mr. Kandola’s family members as well as, most importantly, details from a confidential informant regarding potential connection of one of Mr. Kandola’s family members to serious criminal behavior. The Intelligence report further lists the alleged criminal associates of this family member and the involvement of those associates in alleged criminal activity.
Failure to seal the exhibits, the relevant portions of the transcripts, or the references to the evidence by the parties’ materials, would result in the ability of the public to access the highly sensitive intelligence information contained in the relevant exhibits.
11The respondent further submits that the subject materials are not relevant to count one which is the only count under appeal and simply form part of the narrative of the appellant’s dealings with Mr. Kandola.
12Having reviewed the subject materials, I am satisfied that a sealing order should issue whether the test in Donovan or the language in TARA is applied.
13The first part of the Donovan test is met as the “serious risk to the public interest” to be avoided would be the disclosure of sensitive information about non-parties obtained, at least in part, through a confidential informant. The second part of the test is met as the salutary, or beneficial, effect of the limited sealing order does outweigh any potential deleterious effect. The subject materials appear to be of marginal relevance, to the issues in the appeal. A sealing order will not impact the public’s interest in understanding any of the relevant issues.
14Applying TARA, the subject material does relate to intimate personal matters and the privacy interests of the non-parties do, in my view, outweigh the desirability of adhering to the open court principle.
15Specifically, Exhibit 36, in part, makes reference to a number of individuals and organizations identified by a confidential informant as “operating within the Province of Ontario for the purpose of advancing a militant Sikh agenda.” There would likely be serious damage to the reputation and privacy rights of these individuals if their names were revealed in this proceeding. The exhibit also names non-parties with criminal records and contains an Intelligence Report on others. Exhibit 42 refers to relatives of Mr. Kandola with vague allegations of impropriety. In my view, protecting the privacy interests of these non-parties outweighs the desirability of adhering to the open court principle.
16The respondent has also requested an order that any portion of the oral argument of the appeal that references the subject material be conducted in camera and be closed to the public. I am not satisfied that such an order is necessary at this stage of the proceeding. Counsel on the appeal should be able to tailor their arguments without detailed reference to the subject materials if the information in these materials really is irrelevant to this appeal. If not, the request for a partially closed hearing can be made to the panel conducting the appeal.
17The appellant has delivered a factum with redactions, presumably because of references to the subject materials. In view of this order, he should now deliver a factum without redactions. If the parties wish, they may file supplemental factums that deal only with the subject material which will be covered by this order and will be sealed.
ORDER
18The Commission orders the following:
i) Exhibits 36 and 42 shall be sealed with no access to the public.
ii) Those portions of the transcripts of evidence, as set out in Schedule A hereto, taken during the in camera proceeding before the Hearing Office shall be sealed with no access to the public.
iii) Any portions of the parties’ factums which refer to exhibits 36 or 42 or evidence taken during the in camera proceeding before the Hearing Officer shall be sealed with no access to the public.
iv) The affidavit of Susan Gutteridge sworn to on September 19, 2019 shall be sealed with no access to the public save and except Exhibit C which forms Schedule A hereto.
v) The respondent’s request for an order that part of the Commission’s hearing of the appeal be held in camera is deferred to the panel conducting the appeal.
DATED at Toronto, this 28th day of October, 2019.
D. Stephen Jovanovic, Associate Chair
SCHEDULE “A”