COURT FILE NO.: 52/06

DATE: 20060623

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, EPSTEIN AND SWINTON JJ.

B E T W E E N:

ROBERT RUSSELL

Applicant

• and -

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Respondent

Matthew Wilton, for the Applicant

Robert Ratcliffe, for the Respondent

HEARD at Toronto: June 23, 2006

FERRIER J.: (Orally)

1The applicant, Robert Russell, seeks judicial review of the decision of the Ontario Civilian Commission on Police Services, dated March 7, 2005. In that decision the Commission confirmed a decision of the York Regional Police Service regarding a complaint filed by the applicant against Constable Robert Hands.

2The applicant requests an order quashing the decision of the respondent and a declaration that the applicant is entitled to a hearing and that the matter should be referred to another police service to hold a hearing on the alleged misconduct of P.C. Hands.

3The applicant is now 74 years old, legally blind and with a severe hearing impairment. The applicant owned a bungalow in Georgina, Ontario that he rented out to two tenants. He had ongoing difficulties with both tenants. On the morning of January 28, 2004, the applicant was at the premises dealing with the tenant, one Finkler, who was refusing to obey an eviction order to leave. The police were called.

4The parties agree that the standard of review is patent unreasonableness. See Canadian Civil Liberties Association v. Ontario (Civilian Commission on Police Services), 61 O.R. (3d) 649 (Ont. C.A.). In reviewing a decision of the Chief of Police and interpreting s.64(6) and (7) of the Police Services Act, R.S.O. 1990, c.P.15, the Commission must determine whether there is a reasonable basis in the alleged facts on which the complaint is based for proceeding to a hearing. Here, the Commission decided that “the decision of York Regional Police Service, dated October 12, 2004, is appropriate and there are not sufficient grounds or reasons to change the decision”. This Court must determine whether that decision is patently unreasonable.

5The Court of Appeal held in the Canadian Civil Liberties Association, supra, that “sections 64(6) and (7) must be read together. Under s.64(6) the facts alleged by the complainant must be more than a self-serving bald allegation. The provisions of the Act respecting frivolous or vexatious complaints reinforce the conclusion that there must be a reasonable basis or an air of reality to the evidence before proceeding to the next stage. Otherwise the complaint is unsubstantiated.”

6We are mindful that the Commission’s task is not to make findings of fact, rather only to determine if the evidence shows that misconduct may have occurred. The above-noted passage from the CCLA decision makes it clear that the Commission must undertake an evaluation of the evidence to determine whether there is a reasonable basis in that evidence for sending the matter forward.

7The applicant submits that the evidence is capable of supporting an inference of misconduct in three areas:

(i) Failure by the officer to announce himself, to communicate with the applicant and to investigate before taking steps;

(ii) Failure to accommodate Mr. Russell’s disabilities;

(iii) The aggressive nature of the arrest.

8These submissions, in the circumstances, have to be founded upon a basis of no urgency or emergency at the scene when the officer arrived.

9The Commission had before it extensive evidence containing undisputed facts that this was the third time the police had been at the premises in three days, that Mr. Russell knew that the police had arrived on the occasion in question and that there was aggressive behaviour by people on the scene all taking place in a small hallway in the premises.

10It was not patently unreasonable for the Commission to conclude that there was no basis for a finding of misconduct by the officer on the day in question and that moving the matter forward was not required.

11Accordingly, the application is dismissed.

12Costs to the Respondent fixed at $2,500.00.

FERRIER J.

EPSTEIN J.

SWINTON J.

Date of Reasons for Judgment: June 23, 2006

Date of Release: July 7, 2006

COURT FILE NO.: 52/06

DATE: 20060623

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT