TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Sodhi v Toronto Police Service, 2024 ONCPC 32 Date: 2024-10-15 File: 23-ADJ-016

Between:

Amar Sodhi Appellant

and

Constable Alain Arakaza and Toronto Police Service Respondents

and

Law Enforcement Complaints Agency (Formerly the Office of the Independent Police Review Director) Intervener

Decision and Order

Panel: L. Hodgson, Vice-Chair E. Morton, Vice-Chair C. Osterberg, Vice-Chair

Participants: Thoby King, Selwyn Pieters: Counsel for Amar Sodhi Lawrence Gridin, Counsel for Constable Arakaza Matthew Capotosto, Counsel for Toronto Police Service Colin Bourrier, Counsel for the Law Enforcement Complaints Agency

Held by videoconference: July 17, 2024

INTRODUCTION

1On March 30, 2023, the Hearing Officer dismissed charges against the respondent officer because of noncompliance with s. 83(17) of the Police Services Act (PSA).¹

2The Public Complainant filed a request for leave to appeal from the Hearing Officer’s decision to dismiss proceedings. In a decision dated February 16, 2024, the Commission granted the Public Complainant leave to appeal from this decision.

3For the reasons that follow, the appeal is dismissed. The Commission confirms the Hearing Officer’s dismissal of proceedings for lack of jurisdiction.

STANDARD OF REVIEW

4the standard of review applied by the Commission when considering an appeal from the decision of a hearing officer is reasonableness on questions of fact and correctness on questions of law: Ottawa Police Services v. Diafwila, 2016 ONCA 627.

5As this appeal strictly relates to the interpretation of s. 83(17) of the PSA, the apposite standard of review is correctness. When applying this standard, the Commission may either uphold the Hearing Officer’s decision or substitute its own: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 54. The Commission owes no deference to the Hearing Officer on questions of law: Diafwila, supra at para. 62.

BACKGROUND

6The respondent officer was the subject of a public complaint alleging he committed misconduct during a traffic stop on July 31, 2021.

7The Public Complainant, the father of the driver who was stopped by the respondent officer, filed a complaint with the Office of the Independent Police Review Director² (the Director) on his son’s behalf on December 12, 2021.

8On February 3, 2022, the Director referred this complaint to the Chief of the Toronto Police Services (TPS) for investigation pursuant to s. 61(5)(a) of the PSA.

9The TPS investigation was completed on June 28, 2022, with the Chief concluding that, while some of the misconduct alleged in the complaint was substantiated, it was not of a serious nature and a misconduct hearing was not required.

10On July 27, 2022, the Public Complainant requested that the Director review the Chief’s decision pursuant to s. 71 of the PSA.

11In response to the review request, the Director referred the complaint back to the Chief of the TPS for further investigation on November 9, 2022. In December 2022, the Chief released a supplementary report or “second investigative report” which again concluded that there was no misconduct warranting a hearing.

12The Public Complainant made numerous submissions to the Director in response to the second report and the Chief, in turn, responded to those submissions. The respondent officer was not included on this correspondence.

13On March 30, 2023, the Director reversed the Chief’s decision in part and, pursuant to s. 71(3)(b) of the PSA, directed the Chief to serve a Notice of Hearing on the appellant for two counts of misconduct. Although more than six months had passed since the Chief received the complaint, in its correspondence, the Director specifically directed the Chief to not apply to the Toronto Police Services Board (the Board) pursuant to s. 83(17) for a finding that the delay was reasonable before issuing a Notice of Hearing.

14On May 12, 2023, the respondent officer was served with a Notice of Hearing for two counts of misconduct, unlawful/unnecessary exercise of authority and excessive use of force.

15Days later, on May 16, 2023, the respondent officer brought a motion to dismiss the charges for noncompliance with s. 83(17).

16The Hearing Officer heard the motion on June 21, 2023. The TPS took no position on the motion and the Director was not a party at that stage of proceedings.

17In a decision dated September 22, 2023, the Hearing Officer found, contrary to the Public Complainant’s submissions, that an application to the Board under s. 83(17) was required before a Notice of Hearing could be issued. As a result, the charges were dismissed for noncompliance with s. 83(17).

ISSUES

18The Appellant raises the following issues on appeal:

1. Did the Hearing Officer err in his interpretation of section 83(17) of the PSA?
2. Alternatively, if there was no error in interpretation, can the Commission find that the Chief erred in not applying to the Board, pursuant to s. 83(17), before issuing the Notice of Hearing and now order he do so?

ANALYSIS

1. The Hearing Officer did not err in his interpretation of s. 83(17) of the PSA

19This appeal turns on the proper interpretation of s. 83(17) of the PSA, a provision that requires approval of the Board before a Notice of Hearing can be issued after the passage of more than six months. The appellant and the Director submit that the Hearing Officer erred in finding this provision applies following a review by the Director under s. 71 of the PSA. As, in their submission, there was no requirement for an application to the Board under s. 83(17), there was no loss of jurisdiction.

20They submit that a review under s. 71 is a “different beast” than a referral by the Director under s. 61(5)(a) not requiring an application to the Board under s. 83(17). Alternatively, they ask the Commission to read into the legislation an “implied pause” during a s. 71 review because it is a “quasi appeal’ and only the “original investigation” made pursuant to s. 61(5)(a) is subject to the s. 83(17) timeline. Further, these parties assert that to require a s. 83(17) application to the Board, in the circumstances here, is inconsistent with the purpose of the Act, creating unworkable timelines that veto or usurp the role of the Director.

21The respondent officer submits the Hearing Officer correctly concluded that s. 83(17) applies and, as there was no application to the Board, there is no jurisdiction to proceed. On appeal, the TPS took no position on the interpretation of this provision.

Legislative Framework and Application

22Section 83(17) of the PSA reads as follows:

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.

23Subsection 83(18) sets out the potential triggering points for the six-month timeline. Applicable here is:

83(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) …

24Section 71 of the PSA provides a mechanism by which public complainants dissatisfied with a finding that their complaint was unsubstantiated, or the conduct was less serious, can request a review by the Director. It reads as follows:

71(1) If a complainant has been notified under subsection 66(2) that his or her complaint is unsubstantiated or under subsection 66(5) that the conduct he or she complained of has been determined to be not of a serious nature, within 30 days of such notification, ask the Independent Police Review Director to review the decision.

(2) Upon receiving a request to review under subsection (1), the Independent Police Review Director shall review the decision, taking into account any material provided by the complainant or the chief of police, and shall endeavour to complete its review within 30 days of receiving the request, but the Independent Police Review Director shall not hold a hearing into the matter.

(3) Upon completion of the review of a decision, the Independent Police Review Director may,

a. confirm the decision; b. direct the chief of police to deal with the complaint as the Independent Review Director specifies; c. assign the investigation of the complaint or the conduct of a hearing in respect of the complaint to a police force other than the police force to which the complaint relates; d. take over the investigation of the complaint; or e. take or require to be taken any other action with respect to the complaint that the Independent Police Review Director considers necessary in the circumstances.

25This appeal requires the Commission to look at the text, context and purpose of the PSA. The Commission must read the words of the PSA, the impugned legislation, “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC) at para. 21, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42.

26In this analysis, “[w]hen the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at para. 10. The total context of the provision at issue must also be considered: Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252, at paras. 41 to 52.

27Firstly, in our view, a plain reading of the legislation conveys that the six-month timeline runs from the date the Director refers the complaint to the Chief for investigation, as subsection 83(18) states that it is the “day on which the chief of police received the complaint referred to him or her by the [Director] under clause 61(5)(a)”. In the circumstances here, that date is February 3, 2022, when the Director referred the matter to the Chief for investigation. Thus, pursuant to s. 83(17), a Notice of Hearing could not be issued after six months had elapsed from February 3, 2022, without the Board first determining that the delay, in the circumstances, was reasonable.

28Before the Hearing Officer and in the written materials the Public Complainant suggests that if section 83(17) were to apply to a s.71 review it only applies from the time the Director referred the matter back to the Chief for further investigation – the “second referral” (i.e., on November 9, 2022). Even if that interpretation and timeline was accepted, the six-month deadline for serving the Notice of Hearing was missed. This argument was not pursued in oral argument.

29Nowhere in the statutory language, express or implied, do we read an exception for cases in which the Notice of Hearing is issued when more than six months have elapsed, because there has been a Director’s review under s. 71 of the PSA. In our view, the statute posits a clear rule that requires an opinion from the Board to determine reasonableness of delay if more than six months has passed since the complaint was referred to the Chief, otherwise no notice of hearing can be served. It is void of any criteria or exceptions based on the reasons for the delay.³

30Nor can s. 83(17) be interpreted as only applying to the “original investigation” or that a s. 71 review creates an “implied pause.” In Forestall v. Toronto Police Services Board, 2007 CanLII 31785 (Div. Ct.), at para. 44, the court found the similar predecessor provision to s. 83(17)⁴ was directed at both the investigation and pre-charge stage. The Court held: “[w]e conclude that the decision is administrative in nature, directed at the investigation and pre-charge stage and determining only whether the circumstances preceding the service of the notices reasonably warrant the delay.”

31Thus, the Commission finds, s. 83(17) applied to the period of time after the Director referred the complaint to the Chief and prior to the charge, regardless of the reason for delay. It does not only apply, as the Director suggests, to the “original investigation”. A s. 71 review by the Director constitutes part of the pre-charge stage and thus part of the delay that the Board must determine is “reasonable” under s. 83(17) before a Notice of Hearing can be issued.

32The Public Complainant and the Director repeatedly asserted that a s. 71 review is a “different beast” that precludes it from the s. 83(17) requirement. The Director characterises its role under s. 71 as that of an appellate body. We do not agree. Section 71 clearly sets out a “review” process, not an “appeal” as is the language used in ss. 87 and 88 of the PSA. Further, unlike the appeal process under those provisions, under s. 71(1), the subject police officer has no standing to make submissions and a review does not determine the merits of the case. The list of remedies available to a Director following a s. 71 review include providing specific directions to the Chief with respect to the investigation, assigning the investigation to another police service or the Director taking over the investigation of the complaint. In our view, while s. 71 provides a review and potentially a different investigative process, it does not, as submitted, create a stand-alone appeal process with any implied exemption from s. 83(17).

33A purposive consideration of the PSA provisions at issue also does not support the appellant and Director’s suggested interpretation. These parties suggest that to require s. 83(17) compliance following a s. 71 review would be inconsistent with the values and purpose of the Act. The Commission disagrees.

34Firstly, the Divisional Court provides guidance on the legislative purpose of s. 83(17). In Gough v. Peel Regional Police Service, 2009 CanLII 12112 at 24, when considering the predecessor provision, the Court noted that the PSA encourages the expeditious processing of complaints and the prevention of investigative delay. It found that failure to comply with the PSA timelines respecting service of a Notice of Hearing will result in loss of jurisdiction. Citing Ramsay v. Toronto (City) v. Commissioners of Police, 1988 CanLII 4706 (ON SC) the Court observed:

A glance at the Act makes it clear that the legislature sought to impose an expeditious timetable for the processing of complaints…. . .The Act contains guide-lines clearly intended to accomplish the expeditious resolution of complaints.. . .The clear object is expedition. The objective of this legislation is defeated by a policy of delay.

35In Izzett v. Chief of Police, 2010 ONSC 2262 at para. 13, the Divisional Court again noted that the timeline included in the predecessor provision to s. 83(17) is “..to ensure an expeditious investigation. This is for the benefit of the officer under investigation, who is entitled to an efficient and timely investigation and to early notice that a hearing will be conducted.” The Court concluded that the statute mandates that a notice of hearing be issued within six months, or alternatively, investigators apply for an extension of the time for service of the notice of hearing if there is a reasonable explanation for the delay. To, as the Director and Public Complainant suggest, omit s. 71 reviews and investigation directives from s. 83(17) would frustrate the goal of expeditious investigations.

36More generally, the PSA’s legislative purpose is to enhance public confidence in policing, including the processing of public complaints (Browne v. Ontario Civilian Commission on Police Services, 2001 CanLII 3051 (Ont. C.A.) at para. 67, Endicott v. Independent Police Review Director, 2013 ONSC 2046 at para. 40, Toronto Police Service v B.A., 2022 ONCPC 11 at para. 29). We do not agree, however, that this purpose and the principles of civilian oversight mandate a Director’s s. 71 review to be excluded from the s. 83(17) delay process.

37The Director asserts that its oversight role is undermined by imposing “impossibly narrow timelines” and requiring that a robust review be completed within six months. Section 83(17) does not in fact require that that pre-charge/investigative period be completed within six months. It is clear from the jurisprudence this provision is not a limitation period (Forestall, supra). The only effect of the pre-charge process taking longer than six months is that the delay is subject to an opinion on reasonableness by the Board prior to the issuance of a Notice of Hearing. The “limited issue” to be determined by the Board under this section is if the pre-charge delay was reasonable, with regard to factors such as the complexity of the case, public interest and prejudice to the police officer (see Forestall, supra at para. 84).

38As noted by the respondent police officer, the “circumstances” of the delay considered by the Board here could include the fact that the complainant requested a s. 71 review. That this review reasonably prolonged the pre-charge period could be argued by the Chief and/or Director in submissions to the Board. Additionally, if after a s. 83 (17) application parties were of the view that that the Board unfairly deemed the delay unreasonable they could seek judicial review of the Board’s decision (see for example, The Independent Police Review Director v. Regional Municipality of Niagara Police Services Board, 2018 ONSC 4966).

39Section 83(17) also does not, as asserted by the Director and Public Complainant, allow the Board to “veto”, “usurp” or “undermine” the Director’s decision under s. 71 to issue a Notice of Hearing. The provision simply states that “no notice of hearing shall be served unless the board...is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing” [emphasis added]. The Board is not to consider whether a Notice of Hearing should be issued based on the merits of the allegations; rather, it provides an opinion on whether delay in serving the Notice is, in the circumstances, reasonable.

40As submitted by the Director, it is arguably not ideal to have a police services board review the directives of the Director or apply administrative law provisions and determine the reasonableness of delay. The Director highlights that, in his Independent Police Oversight Review, Justice Tulloch recommended that delay be addressed at the actual discipline hearing by the hearing officer in accordance with administrative law and natural justice principles. It was also noted that the new Community Safety and Policing Act, 2019, does not provide police boards a delay review function similar to s. 83(17). Nonetheless, the Commission must interpret the legislation that is at issue in this appeal; s. 83(17) of the now repealed Police Services Act, not the new legislation nor prior recommendations. Like courts, a tribunal such as the Commission cannot question past policy choices of the legislature: R v. Walsh, 2021 ONCA 43 at para 134. Rather the Commission’s role is to assess the text, context and purpose of the legislation. When we do so here, we can find no basis to exclude a s. 71 review from s. 83(17).

41To support its interpretation of the Act, on appeal (but not before the Hearing Officer), the Director pointed to the Director’s PSA Rules of Procedure, 2024, which state at 13.6 “if, at the completion of the review of a decision, the Director directs the chief of police to issue a notice of hearing, the chief of police shall not apply to the board pursuant to s. 83(17) of the Act.” There is no information before the Commission as to when this rule came into existence. In any event, the rule merely reiterates the Director’s view of how s. 83(17) should be interpreted – it is not itself legislation. As set out above, the Commission’s view is that is not the correct interpretation of s. 83(17), and we give no weight to a rule that asserts an interpretation that is without basis in the legislation or jurisprudence.

42This has undoubtably been a frustrating process for the complainant. While the Courts have noted that complainants have a substantive right to have their complaint considered but not to any particular remedy relating to employment discipline (see Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, at para. 54, Canadian Broadcasting Corporation v. Ferrier, 2019 ONSC 34 at para. 44 and Toronto Police Service v B.A., supra at 58), the complainant would clearly have preferred a hearing on its merits.

43Having regard to the text, context and purpose of the legislation, we find the Hearing Officer was correct to find that, because the Notice of Hearing was served on the respondent officer 15 months after it was referred to the Chief, and no application was made under s. 83(17), the proceedings should be dismissed for loss of jurisdiction.

2. The Commission cannot consider whether the Chief erred in not applying to the Board for an extension to serve a Notice of Hearing pursuant to s. 83 (17)

44After the Notice of Appeal was filed and after leave from the Hearing Officer’s decision was granted by the Commission, the Public Complainant appellant sought in his written and oral arguments to suggest an alternative ground of appeal. The appellant now asks the Commission, as an alternative argument, if the Commission agrees with the Hearing Officer that an application to the Board was required under s. 83(17), to find that the Chief erred in not bringing the application to the Board and to make an order requiring him to do so⁵.

45All other parties (the respondent officer, the Director and the TPS) agree that the Commission has no jurisdiction under s. 87 to review the Director or Chief’s decision to not make application to the Board under s. 83(17).

46We find the issue is not properly before us. Under s. 87(1) of the PSA, a complainant may appeal to the Commission within 30 days of receiving notice of a decision made after a hearing under s. 66(3), 68(5) or 76(9). Per s. 87(3), a complainant only has a right to appeal from a finding that misconduct/unsatisfactory work performance was not proved on clear and convincing evidence. Pursuant to s. 87(4) a complainant must seek leave to appeal any other finding made after a hearing: Grychtchenko and McCarney and Toronto Police Service, 2015 ONCPC 20 at paras. 27 - 28.

47Here, the appellant sought leave to appeal the Hearing Officer’s dismissal of the charges as an abuse of process. The focus was specifically on the motion decision dismissing the charges for noncompliance with s. 83(17). In its leave decision, Sodhi v. Toronto Police, 2024 OCPC 25 at para. 41, the Commission ordered: “The Public Complainant is granted leave to appeal the motion decision of the Hearing Officer.” (emphasis added). The appellant never sought leave to appeal the Chief’s decision with respect to s. 83(17), no leave was granted and this issue is not properly before the Commission for consideration.

ORDER

48Pursuant to s. 87(8)(a) of the PSA, the Commission confirms the order of the Hearing Officer dismissing the charges for lack of jurisdiction.

Released: October 15, 2024

__________________ Laura Hodgson

__________________ Emily Morton

__________________ Colin Osterberg

Footnotes

1. 1This appeal was commenced pursuant to s. 87 of the now repealed PSA. The appeal is continued before the Commission pursuant to s. 216 of the Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sched. 1 (CSPA). As this matter was initiated prior to April 1, 2024, pursuant to s. 216(1) of the CSPA, this matter is dealt with in accordance with the provisions of the PSA as they read immediately before the PSA was repealed with necessary modifications. Other than s. 216, the CSPA does not apply to these proceedings.
2. 2With the coming into force of the CSPA the Office of the Independent Police Review Director is now called the Law Enforcement Complaints Agency, and the Independent Police Review Director is now called the Complaints Director (s.130).
3. 3Counsel for the Public Complainant appears to have initially agreed with this interpretation. In May 29, 2023 correspondence to the Director counsel wrote “to point out a possible procedural flaw.” He asked the Director to consider applying to the Board, “... I am concerned that your not having referred the matter to the Board for an opinion on the reasonableness of the delay may presently be standing in the way of this matter’s being prosecuted before the Tribunal.”
4. 4Section 69 (18), the predecessor to s.83(17) differs in that the start date for the six-month deadline under that section, was when the “facts on which a complaint is based first came to the attention of the chief”; now the relevant start date is when the matter is referred by the Director to a Chief pursuant to sections 61(5)(a) or 61(5)(b), or when the Director retains the complaint to investigate itself pursuant to section 61(5)(c).
5. 5We note that section 83(17) doesn’t specify who is required to make the application to the Board but before the Commission the parties suggested that based on practice and the jurisprudence it is typically the Chief.