TRIBUNALS ONTARIO
Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO
Commission civile de l’Ontario sur la police
File: 24-ADJ-025
Motion for Leave to Appeal under subsection 87(4) of the Police Services Act, R.S.O. 1990, C.P,15
Between:
Amar Sodhi
Proposed Appellant
And
Constable Alain Arakaza
And
Respondents
Toronto Police Service
and
Office of the Independent Review Director
Intervener
Adjudicator: L. Hodgson, Vice Chair
Participants: Thoby King, Selwyn Pieters: counsel for Public Complainants
Lawrence Gridin, counsel for Constable Arakaza
Noah Schachter, Mathew Capotosto, counsel for Toronto Police Service
Colin Bourrier, counsel for the Independent Police Review Director
Motion in Writing
Introduction
1On March 30, 2023, the Hearing Officer dismissed charges against the respondent officer finding the notice of hearing was defective because of noncompliance with section 83(17) of the Police Services Act, R.S.O. 1990, c.P.15 (PSA).
2The public complainant has filed a motion requesting leave to appeal from the dismissal of proceedings. The Office of the Independent Review Director (the Director) supports leave being granted. The respondents, Officer Arakaza and the Toronto Police Service (TPS) both oppose the motion for leave to appeal.
3Counsel for the respondent officer also objects to the Director participating in the leave application, indicating there is no statutory basis for him to do so.
4For the reasons that follow I find that the Director has standing to participate in the leave application. I would also grant the motion for leave to appeal.
Background
5On December 12, 2021, the public complainant filed a complaint with the Director with respect to a July 31, 2021 incident involving the respondent officer. That complaint was referred by the Director to the TPS for investigation on February 3, 2022, pursuant to sections 61(5)(a) and 66(1) of the PSA.
6This investigation was completed on June 28, 2022, with the TPS finding no serious misconduct. The public complainant then, on July 27, 2022, pursuant to section 71 of the PSA, requested the Director review TPS’ determination that the officer’s conduct was not of a serious nature.
7The Director granted the request and, on November 9, 2023, directed further investigation by TPS, including communicating with the complainant and assessing the question of racial profiling. The TPS completed a second investigative report and, on March 30, 2023, the Director ordered the respondent officer to be served with a notice of hearing with respect to two counts of misconduct (excessive use of force and unlawful exercise of authority).
8Additionally, and significantly to this motion, the Director specifically instructed the TPS Chief to not bring an application to the Toronto Police Service Board (the Board) under section 83 (17) of the PSA. This provision requires, when there is a delay of greater than six months, an application to the Board to determine if the delay “was reasonable under the circumstances” before the notice of hearing is served. The subsection and the related subsection 18 (a) read as follows:
S.83(17) If six months have elapsed since the day described in subsection (18), no notice of hearing shall be served unless the board, in the case of a municipal police officer, or the Commissioner, in the case of a member of the Ontario Provincial Police, is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing.
(18) The day referred to in subsection (17) is,
(a) in the case of a hearing in respect of a complaint made under this Part by a member of the public about the conduct of a police officer other than a chief of police or deputy chief of police,
(i) the day on which the chief of police received the complaint referred to him or her by the Independent Police Review Director under clause 61 (5) (a) or (b), or
9In his correspondence, the Director indicated that an application under section 83 (17) was unnecessary as the “original investigation” was completed within the stipulated six-month timeframe and the section 71 Director review was a separate process.
10No application was made to the Board under section 83(17) and the notice of hearing was served on the respondent officer on May 12, 2023.
11On May 29, 2023, the respondent officer brought a motion to dismiss the proceedings because of the delay in service of the notice of hearing and failure to comply with section 83(17) of the PSA. This resulted in the public complainant asking the Director for clarification or to reconsider an application to the Board under s. 83(17). In a letter dated June 5, 2023, the Director provided a detailed explanation of his interpretation of the provision and why an application was not required in these circumstances.
Hearing Officer’s Dismissal of Proceedings
12At the motion for dismissal, it was the public complainant’s position that the notice of hearing was properly served and the matter should proceed to hearing. The public complainant asked the Hearing Officer to defer to the Director’s interpretation of the application of section 83(17). The TPS took no position on the substantive motion but argued that there should be no deference to the Director’s opinion. The Director observed but was not a party to the motion proceedings.
13The Hearing Officer reviewed the legislation and proceedings at issue. He accepted the respondent officer’s position that section 83(17) of the PSA provides a clear timeline and process to address delay. He found nothing in the PSA indicating that a Director’s review under section 71, as occurred here, is a separate and distinct process which makes the assessment of the reasonableness of delay under section 83(17) inapplicable.
14The Hearing Officer found that it was clear that, pursuant to section 87(18), the “referral date” was February 3, 2022, the date the complaint was first referred by the Director to the TPS for investigation. The Hearing Officer noted that section 83(17) does not create a limitation period but rather “a triggering of a pre-charge process to determine if the delay is reasonable or not”.
15The Hearing Officer gave no deference to the Director’s interpretation of the provision, noting that, in other matters involving a section 71 review, the Director had in fact directed the TPS chief to bring an application under section 83(17).
16After concluding that the PSA “speaks clearly” and that section 83(17) applies to these proceedings, the Hearing Officer dismissed the misconduct charges for noncompliance with the statutory requirements.
i) The Director can participate in the leave application
17Prior to determining if leave should be granted, I must decide if the Director has standing to participate in this leave application and whether I can consider his submissions on this leave motion.
18It is the respondent officer’s position that the Director does not have standing on a leave application and that, pursuant to the PSA, is only entitled to be heard on the “argument of an appeal”. Both the public complainant and Director submit that the Director is entitled to participate in this leave application. The respondent TPS takes no position on this issue.
19I find that the Director has standing and accordingly will consider his written submissions with respect to the request for leave.
20First, the Director is a legislated party to the appeal process. While the Director does not have a right of appeal to the Commission pursuant to section 87 (3) he is entitled to be heard on an appeal made in respect of a public complaint:
87 (7) The Independent Police Review Director is entitled to be heard, by counsel or otherwise, on the argument of the appeal of a decision made in respect of a complaint made by a member of the public.
21The statute is silent with respect to the specific issue of the Director’s ability to make submissions on a request for leave to appeal. This Commission has, however, consistently accepted that the Director is entitled to, should it choose, make submissions on leave motions that involve a public complainant (see for example: Grychtchenko and McCarney and Toronto Police Service, 2015 OCPC 20; Akhavi v Fenton, 2016 CanLII 84142; Nobody and Andalib-Goortain #9859 and Toronto Police, 2016 CanLII 35392; Harrison v. Thunder Bay Police Service, 2023 ONCPC 23).
22In Nobody v Ontario Civilian Police Commission, 2016 ONSC 5824 the Divisional Court considered if the Director should be named in materials as a respondent to the judicial review. This case is not entirely applicable to the situation at hand. Unlike the Commission, a Superior Court has inherent jurisdiction to add parties. However, the Divisional Court’s specific comments on the Director’s rights, under the PSA, are relevant to the issue on this motion.
23First, the court, at paragraph 35, notes that section 87(1) provides a right of appeal to a police officer and a public complainant but doesn’t specify who can participate in the appeal. The Court then explains why section 87(7) specifically gives the Director the right to “be heard on appeal”. Commenting on this section of the PSA:
24It obviously assumes that the parties to the initial hearing will have the right to be heard by the Commission. But since the Director is not entitled to appear or be heard at an underlying discipline hearing, it was necessary for the Legislature to specify that the Director has a right to be heard on the appeal in order to provide the Director with that right. Despite the use of the word “party” elsewhere in the PSA, I see no intention from the choice of language in s. 87(7) to make some grand distinction between the right of the Director to participate in the appeal and the right of the police officer and the complainant to participate in it. (emphasis added)
25Second, and more germane to this issue, the Divisional Court rejected the respondent officer’s argument that the ‘right to be heard’ in s. 87(7) relates only to the argument of the appeal itself and not to prehearing steps such as a motion to dismiss an appeal. The Court wrote at paragraph 36:
I would characterize the second point raised by the constables as unduly technical. When the PSA gives the Director the right to be heard on an appeal to the Commission, by necessary implication it gives the Director the right to participate in pre-hearing matters such as scheduling hearings, pre-hearing conferences, pre-hearing determinations of the admissibility of fresh evidence, as well as motions such as the one brought by the constables in the instant case.
26Similarly here, I find the respondent officer’s argument unduly technical. The Director is entitled to participate in the pre-hearing step of a request for leave to appeal. The Director’s right to provide submissions with respect to the public complainant’s request for leave to appeal is a logical extension of the Director’s right to participate in the appeal proper. I would also note that, in the specific circumstances of this case, the decision from which leave is being sought, directly impacts the role of Director under the PSA.
27The respondent officer submits that the case of Ryan v Ramos, 2018 ONCPC 17 has significant bearing on this issue. I disagree. In that case, the Commission was determining whether the public complainant’s failure to serve the Director and the Solicitor General with a Notice of Appeal deprived the Commission of jurisdiction. The Commission concluded that, under the PSA, service on the Director was not required until leave was granted. This is not dispositive of the current issue of whether the Director is entitled to participate in a leave application.
28The respondent officer also submits that the Commission’s Rules of Practice, rev’d 2014 (the Rules) reflect that a “motion for leave and the argument of the appeal are two distinct phases”. While this may be, for the following reasons I do not find that the Rules preclude the Director from making submissions on a leave application.
29The Commission’s rule 31.0 mirrors the PSA and states that the Director is entitled to be heard at an appeal where a public complainant was the subject of the disciplinary hearing. Under rule 32 a public complainant who wishes to appeal a penalty must file and serve on the parties a Request for Leave to Appeal a Disciplinary penalty (Form 4). Under Rule 32, the request for leave is to be heard in writing and, if leave to appeal is granted, the public complainant shall, among other things, serve the Notice of Appeal on the Director.
30The rules do not specifically address the motion at issue here. This is not a request for leave to appeal from penalty but rather a public complainant’s request to appeal the Hearing Officer’s decision to dismiss proceedings. The rules are flexible and the process set out in rule 32 could apply by analogy to the motion here (as was done by the Commission in Ramos, supra). The rules do not address the ability of a statutory intervenor to make leave submissions. As noted by the public complainant, the Commission has the power to control its own process and procedures (Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 25.0.1). In my view this includes determining the procedural rights of statutory intervenors on a leave application.
31Lastly, the respondent officer questions why, if the Director has no right under the PSA to commence an appeal, it has a right to make submissions on whether an appeal can be commenced. It could, however, also be asked why, if under the PSA the Director can provide input on the merits of an appeal, it could then be precluded from having input on the request for leave to appeal. As the Divisional Court noted in Nobody, supra, the wording of the PSA does not make a “grand distinction” in the participation rights of the Director, an officer or a public complainant on an appeal to the Commission.
32For the above reasons I find the Director has standing on this request for leave.
ii) The criteria for leave are met
33This appeal is brought pursuant to section 87(4) of the PSA and so leave is required (see Grychtchenko, supra, at paras. 27-28). The PSA doesn’t set out the criteria for leave and section 87(4) simply states that the Commission may hold a hearing, “if it considers appropriate”.
34This Commission has however, in its jurisprudence (Grychtchenko, supra, at para. 31 -33) identified three circumstances in which granting leave to appeal would be appropriate:
a. The decision is clearly wrong on its face and the appeal involves matters of such importance that leave ought to be granted; or
b. There is a conflicting decision of the Commission on the matter involved in the proposed appeal and it is desirable that leave be granted;
c. The matters raised in the proposed appeal are of significant importance to the policing profession as a whole and the community at large.
35While it is common ground that the second branch has no application here, the public complainant and the Director submit that the first and third branch are satisfied by the circumstances of this case. The respondent officer and the TPS submit that neither branches are met and leave should be denied. For the reasons that follow I find that the third branch is satisfied. Accordingly, it is not necessary to address the first two branches.
The matters raised in the proposed appeal are of significant importance to the policing profession as a whole and the community at large.
36This case relates to how the Director’s oversight powers under section 71 interact with a Police Services Board’s obligation to determine, under section 83(17), whether delay in serving a notice of hearing is reasonable. The decision addresses important powers and procedural protections under the PSA.
37The Court of Appeal in Wall v. Independent Police Review Director, 2014 ONCA 885 stated that complaints of police misconduct “raise issues that are important to society, both form the perspective of the public complainant and that of the police services” (para. 46). In this case, serious allegations were made by a public complainant, and an investigation determined that a hearing under the PSA was necessary. That did not happen, however, as this matter was dismissed by the Hearing Officer due to noncompliance with the PSA. Based on the Hearing Officer’s interpretation of these provisions, which conflicts with the Director’s interpretation, this matter will not proceed to a hearing and be decided on its merits.
38The proper interpretation of these provisions, which highlight a disagreement in interpretation between the Director and the Hearing Officer, is important to the policing profession and the community and warrants appellate review.
39The appellant correctly notes that the Community Safety and Policing Act, 2019 (the ‘CSPA’) comes into force on April 1, 2024, which replaces the PSA. However, the CSPA’s transition provisions make it clear that certain complaints about misconduct under the PSA shall continue to be dealt with under the terms of the PSA: see 216. Although the central issue in this appeal has not come up before, and may not come up again prior to the CSPA replacing the PSA, we are not satisfied that this results in the conclusion that the correct interpretation regarding the interplay between the Director’s powers and duties and those of the Police Services Boards under the PSA are not important to the policing profession and community.
40As noted, if we deny leave this matter would not be heard on the merits, and the dispute regarding the correct interpretation of these important provisions would remain unresolved. We are satisfied that leave ought to be granted on this ground in these circumstances.
order
41The Public Complainant is granted leave to appeal the motion decision of the Hearing Officer.
Released: February 16, 2024
Laura Hodgson