Keith Ryan v. Cst. Ramos, Cst. Kharbar, Toronto Police Service, 2019 ONCPC 5

ONTARIO CIVILIAN POLICE COMMISSION

DATE: December 23, 2019

FILE: OCPC 18-ADJ-011

CASE NAME: Keith Ryan v. Cst. Ramos, Cst. Kharbar, Toronto Police Service 2019 ONCPC 5

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:

MR. KEITH RYAN APPELLANT/PUBLIC COMPLAINANT

-and-

CONSTABLE MANPREET KHARBAR RESPONDENT

-and-

CONSTABLE PAUL RAMOS RESPONDENT

-and-

TORONTO POLICE SERVICE RESPONDENT

THE INDEPENDENT POLICE REVIEW DIRECTOR INTERVENOR

DECISION

Panel: Katie Osborne, Vice-Chair Ted Crljenica, Vice-Chair Jenny Restoule-Mallozzi, Vice-Chair

Hearing Date: August 23, 2019

Hearing Location: Toronto, Ontario

Appearances: Nima Hojjati, counsel for Keith Ryan Harry G. Black, Q.C., counsel for Cst. Kharbar Peter Brauti and Alex Alton, counsel for Cst. Ramos Ian Johnstone and Philip Wright, counsel for Toronto Police Service Pamela Stephenson Welch and Miriam Saksznajder, counsel for OIPRD

OVERVIEW

1. This is an appeal of a decision by a Hearing Officer to stay misconduct proceedings against two police officers under the Police Services Act (“PSA”) for abuse of process due to delay.

2. The events giving rise to this appeal date back over eight and a half years. In April, 2011, Keith Ryan, the appellant and public complainant, was arrested and charged with assaulting a parking enforcement officer. He was taken into police custody.

3. The two respondent police officers, Constables Ramos and Kharbar, were among the officers who responded to a 911 call reporting the incident. They took Ryan from the police car which had driven him to the police station and began the booking process. After being taken to the search room, Mr. Ryan was assaulted. The parking enforcement officer was charged and convicted for assaulting Mr. Ryan. On August 9, 2011 Constables Ramos and Kharbar were also charged with assault causing bodily harm. The officers were tried criminally and acquitted by an Ontario Court Judge in April, 2014.

4. Mr. Ryan also filed a complaint about the events with the Office of the Independent Police Review Director (“OIPRD”). This complaint was the first step in the chain of events that led to the Hearing Officer’s decision to stay the proceedings, and ultimately to this appeal.

5. Over three years after Mr. Ryan’s complaint, and three months after Constables Ramos and Ryan were found not guilty in the criminal proceedings, the OIPRD directed that a hearing under the PSA be held regarding four police officers, including the respondents, Constables Ramos and Kharbar. Ramos and Kharbar were charged with misconduct under the PSA.

6. The PSA proceedings did not proceed quickly, to say the least. Following numerous delays, the respondents filed a motion to dismiss the proceedings for abuse of process. The motion was heard by the Hearing Officer, the retired Honourable Justice Douglas Cunningham, on May 29 and June 6, 2018, over seven years after the events that gave rise to this appeal. For reasons explained in his decision, the Hearing Officer ordered the proceedings stayed for abuse of process.

7. The Commission granted Mr. Ryan leave to appeal the decision. Mr. Ryan seeks an order quashing the stay and directing a new hearing on an expedited basis before a different Hearing Officer.

DISPOSTION

8. For reasons explained in the following paragraphs, we find that the Hearing Officer’s decision is reasonable, and although he made some errors, they did not take his decision outside the range of reasonable outcomes. We deny the appeal and confirm the Hearing Officer’s decision.

ISSUES

9. The issues we must determine in this appeal are:

(a) Did the Hearing Officer commit an error of law?

(b) Is the Hearing Officer’s decision to stay the proceedings reasonable?

ANALYSIS

The standard of review

10. The standard of review to be applied by the Commission in an appeal of a decision of a Hearing Officer is reasonableness on questions of fact and correctness on questions of law. Questions of mixed fact and law are also to be reviewed on the reasonableness standard unless there is an extricable question of law involved.¹

11. The Supreme Court of Canada described the test for reasonableness in Dunsmuir v. New Brunswick:

Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.²

12. Reasons must be read as a whole and in context. The reasonableness standard does not require each element of the reasons to independently pass the reasonableness test, nor does it require the Commission to agree with the result reached by the Hearing Officer.³ We owe deference to the Hearing Officer’s decision.

Discussion

13. The appellant and the Toronto Police Service submitted that the Hearing Officer’s decision is unreasonable, and that he erred in law. While we will touch on some of the other arguments the appellant, the Toronto Police Service and the OIPRD raised in the course of our analysis, this decision turns primarily on the reasonableness of the decision, as well as the Hearing Officer’s consideration of the test for abuse of process set out by the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission).⁴ We find the other arguments to be without merit.

(a) Did the Hearing Officer commit an error in law?

14. The appellant and the Toronto Police Service submit that the Hearing Officer erred in law in his interpretation and application of Blencoe and the common law doctrine of abuse of process. They argue that the he failed to consider and apply key elements of the Blencoe test. In particular, the appellant argued that the Hearing Officer failed to address the following aspects of the Blencoe test:

• Determining that delay is state-caused;
• Finding proof of significant prejudice which results from an unacceptable delay;
• Establishing a causal connection between the delay and the prejudice; and
• Balancing competing interests in assessing whether a delay amounts to an abuse of process.

15. The Hearing Officer properly identified Blencoe as the seminal case dealing with delay in administrative proceedings and made it clear he was guided by the reasoning contained in that decision. In his opening remarks on Blencoe, at paragraph 31 of his decision, the Hearing Officer wrote:

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 of cases. Bastarache J. goes on to quote L’Heureux-Dubé 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.”

16. The Hearing Officer went on to set out the factors to be considered in this determination:

• The nature of the case;
• The complexity of the case;
• The facts and issues;
• The purpose and nature of the proceedings;
• Whether the respondent contributed to or waived the delay; and
• Other circumstances of the case.

17. The Hearing Officer also referred to a number of additional cases which he found helpful where similar tribunals stayed proceedings for delay.

18. We are not persuaded by the appellant’s argument that the Hearing Officer failed to consider key elements of the Blencoe test. The Hearing Officer clearly laid much of the blame for the delays at the feet of the prosecution, thus determining that the delay was “state-caused.” In our view some of the delay the Hearing Officer attributed to the prosecution may have been unfair or unwarranted given that it was determined according to the Stinchcombe standard (or something like it). However, ultimately, we agree with the Hearing Officer’s finding that much of the delay was caused by the prosecution. For example, the Hearing Officer properly concluded that the prosecution’s late interview of Officer Henry, its position on joinder, and the late service of motion materials (12 volumes two days prior to the motion) unnecessarily contributed to the delay in the proceedings.

19. The Hearing Officer found the respondents suffered prejudice as a result of what he characterized as inexcusable delays. He went on to balance the competing interests in Blencoe in assessing whether the delay amounted to an abuse of process.

20. With specific reference to the Blencoe decision, and the balancing test set out in it, the Hearing Officer concluded that there would be significant damage to the public interest if these proceedings were to continue. In his view this damage clearly outweighed any harm to the public associated with halting the proceedings. At paragraphs 33-34 and 37 of his reasons, the Hearing Officer wrote, in part:

In this case, for various unexplained reasons, Ramos and Kharbar have waited for over seven years since Ryan filed his complaint with the OIPRD. They were subsequently charged criminally in August 2011 and after a trial in July 2013 were found not guilty, in a decision rendered April 24, 2014. Presently no hearing dates have been set for the TPS hearings. To my mind, this is inexcusable and without question, to continue this prosecution further would be oppressive.

I have reviewed carefully the affidavits of the two officers whose careers have been in limbo for an unacceptably long period of time, through no fault of theirs. In my view, with an eye on Blencoe, there would be significant damage to the public interest if these proceedings were to continue, damage that clearly outweighs any harm to the public by having the proceedings halted. Enough is enough.

Accordingly, I order the herein proceedings stayed. Any other disposition would violate the community’s conscience. The continuation of these proceedings would cause significant prejudice to the officers such that the publics sense of decency would be offended.

21. The Hearing Officer’s conclusions were open to him based on a proper application of the law to the facts of this case.

22. While it was important for the Hearing Officer to properly consider Blencoe, we reject the argument that a failure on the part of the Hearing Officer to engage in a line-by-line analysis of the Blencoe test constitutes an error of law, or that it renders the reasons inadequate. While he chose not to address each element of the test under separate headings, we note that the Hearing Officer concluded that the delays were largely caused by the prosecution (state caused), and not by the officers. He spoke to the significant prejudice resulting from the delay and established the causal connection between the delay and the prejudice. Most importantly, he engaged in the balancing of interests that is a critical feature of the Blencoe test.

23. Case law confirms that reasons must be read as a whole, and do not need to be perfect or comprehensive. Every element of the reasoning does not need to independently pass a test for reasonableness. Case law also tells us that the Commission must not focus on mistakes or deficiencies that do not affect the decision as a whole.⁵ In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), the Supreme Court of Canada wrote:

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met (citations omitted).⁶

24. We conclude that the Hearing Officer did not commit an error in law in his analysis of Blencoe, or in reaching any of his conclusions on that issue.

25. We also reject the argument that the Hearing Officer’s reasons are inadequate due to alleged deficiencies in his Blencoe analysis. The Hearing Officer made findings of fact that are supported by the evidence, and he engaged in meaningful analysis of the delay issue with sufficient and proper consideration of the Blencoe test. The Hearing Officer made clear that he was guided by the reasoning in the Blencoe decision. He understood the fundamental principles underlying the Blencoe test, summarized essential aspects and factors to be considered when applying the test, and engaged in the balancing of interests that is required under Blencoe. In our view this is sufficient.

26. We note briefly that we are not persuaded by arguments that the decision should fail because the Hearing Officer erroneously applied the Stinchombe⁷ standard for disclosure. In making his findings on delay, the Hearing Officer relied primarily on the delay between the conclusion of the respondents’ criminal trial and the date the Hearing Officer heard the two motions (the disclosure motion and the motion to dismiss for abuse of process). None of this delay was caused by the Hearing Officer’s disclosure order of June 20, 2018. Any error in applying the Stinchcombe test therefore cannot form the basis for interfering with the Hearing Officer’s decision.

27. Similarly, while the Hearing Officer’s description of the remaining charges as “fairly minor charges” is unfortunate, his decision did not turn on this characterization. His characterization of the charges in his closing comments does not provide grounds for quashing the decision.

(b) Is the Hearing Officer’s decision to stay the proceedings reasonable?

28. This matter has a long and complicated procedural history. In his reasons for decision, the Hearing Officer does an admirable job of describing in a succinct manner the underlying events and the many steps between the laying of the PSA charges and the motion to stay the proceedings. His decision quite appropriately focuses on the various delays in the proceedings, given the nature of the motion before him.

29. The sequence of events and the length and causes of the various delays are described in the parties’ submissions and more importantly in the Hearing Officer’s decision. We will not repeat them all in detail here. The Hearing Officer specifically identified a number of issues that contributed to delay, including:

• The length of time to conclude the OIPRD investigation (nearly 39 months);
• The need to apply for an extension of time to the Toronto Police Services Board to serve the Notices of Hearing on the officers because the six-month statutory period under the PSA had expired (over four years passed between Ryan’s complaint and the issuance of the Notices of Hearings);
• Repeated instances of inadequate, delayed and last-minute disclosure, including delay in disclosing the “Use of Force” report;
• Failure of prosecutor to concede the issue of trying the officers together;
• Delay in appointing a hearing officer;
• Multiple adjournments; and
• Issues relating to witnesses, including key “late-breaking” evidence of Officer Henry after he recovered his memory, and the expansion of the prosecution witness list to include six additional witnesses.

30. After detailing the various delays, the Hearing Officer summarized the status of the matter at paragraph 29 of his reasons:

So here we are. Seven years after the events in question and still no hearing dates set. The likelihood is that the matter will not get to a hearing until 2019. In this case, even if we subtract the time involved in the criminal case it will be five years before a hearing could be held.

31. The Hearing Officer carefully considered the evidence before him, with a focus on the nature, length and causes of the various delays in the proceedings, as well as consideration of the overall timeline. He was deeply troubled by the length of the delay in this case. Following an assessment of the various events that delayed the process, the Hearing Officer concluded that the delays were inexcusably long – and that they were largely attributable to the prosecution.

32. As we noted earlier in our decision, some of the delay the Hearing Officer attributed entirely to the prosecution may have been unfair or unwarranted and may disclose errors in his reasoning. However, we agree with the Hearing Officer’s ultimate finding that much of the delay was caused by the prosecution and that the delay caused unfairness and significant prejudice. In our view any errors made by the Hearing Officer in relation to his assessment of the delay are not sufficient to render the decision unreasonable.

33. The Hearing Officer went on to properly apply the test set out by the Supreme Court of Canada in Blencoe in determining that the proceedings should be stayed for abuse of process. He set out the essential elements of the Blencoe test, and he made it clear that he was guided by the reasoning and the principles articulated in that decision.

34. With specific reference to the Blencoe decision, and the balancing test set out in it, the Hearing Officer concluded that there would be significant damage to the public interest if the proceedings were to continue, damage that in his view clearly outweighed any harm to the public by stopping the proceedings. This conclusion was open to him based on a proper application of the law to the facts of this case.

35. While it is possible that another decision maker might have reached a different conclusion, it is not our role to re-weigh the evidence, second-guess the Hearing Officer’s findings, or substitute our own opinion for that of the Hearing Officer.⁸

36. We owe deference to the Hearing Officer’s decision, unless our examination of the record demonstrates that his conclusions fall outside the range of reasonable outcomes in light of the facts and law.⁹ It does not. The Hearing Officer’s findings were open to him on the record, he properly applied the appropriate legal test, and he explained why he reached the conclusions he did. We owe his findings deference.

CONCLUSIONS

37. While the Hearing Officer’s reasons may not be perfect, when read as a whole they meet the standard of reasonableness. The reasons contain a line of analysis that is transparent and intelligible, and the decision falls within a range of possible acceptable outcomes that are defensible in respect of the facts and the law. It is not our role to second-guess the Hearing Officer or to substitute our decision. The Hearing Officer’s decision can be reasonably supported on the information before him. We owe it deference.

38. We see no basis on which to interfere with the Hearing Officer’s finding that to continue this matter would constitute an abuse of process – or his order to stay the proceedings as a result. We dismiss the appeal.

ORDER

39. The Commission confirms the Hearing Officer’s decision to stay the Police Services Act proceedings against the respondents, Constable Ramos and Constable Kharbar.

40. The appeal is dismissed.

Katie Osborne, Vice-Chair

Ted Crljenica, Vice-Chair

Jenny Restoule-Mallozzi, Vice-Chair

I.

Footnotes

1. 1Dickinson v Ontario Provincial Police, 2018 ONCPC 20; Ottawa Police Services v Diafwala, 2016 ONCA 627 at paras 42, 61-63; and Dunsmuir v New Brunswick, 2008 SCC 9 at para 53.
2. 2Dunsmuir at para 47.
3. 3Shorey v Belleville Police Service, 2017 CanLII 53072 (ONCPC).
4. 4Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44.
5. 5Ryan v. Law Society of New Brunswick, 2003 SCC 20, as discussed in Shorey at para 36.
6. 6Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16.
7. 7R. v. Stinchcombe, 1991 CanLII 45, [1991] 3 S.C.R. 326.
8. 8See Constable I. Karklins v. The Chief of Police - Toronto, 2010 ONSC 747 (Div. Ct.) and Ontario Provincial Police v. Purbrick 2013 ONSC 2276 (Div. Ct.)
9. 9See: Toronto Police Service v. Blowes-Aybar, 2004 CanLII 34451 (Ont. Div. Ct.) at paras 30-33; Purbrick at para 16, aff’d by Diafwila at para 54.