COURT FILE NO.: 370/06

DATE: 20070802

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

KITELEY, LAX and SWINTON JJ.

B E T W E E N:

Gregory Forestall, Christopher Higgins, Jason Kondo, Sean McGuinness, Jonathan Reid and Michael Turnbull

Frank Addario and Lyle Kanee, for the Applicants

Applicants

• and -

Toronto Police Services Board and Toronto Chief of Police, William Blair

Respondents

Brian Gover and Owen M. Rees, for the Chief of Police

George S. Monteith and Sharmila Clark, for the Toronto Police Services Board

COURT FILE NO.: 388/06

B E T W E E N:

PC Steven Correia #1081, Staff Sergeant John Schertzer #6458, PC Richard Benoit #3317, PC Raymond Pollard #4479, and PC Negojsa Maodus #430

Joanne Mulcahy, for the Applicants

Applicants

• and -

Toronto Police Services Board and Toronto Chief of Police, William Blair

Respondents

Brian Gover and Owen M. Rees, for the Chief of Police

George S. Monteith and Sharmila Clark, for the Toronto Police Services Board

HEARD at Toronto: April 18 and 19, 2007

By the Court:

[1] On July 10, 2006, the Toronto Police Services Board (“the Board”) granted an application made by the Chief of Police pursuant to s. 69(18) of the Police Services Act, R.S.O. 1990, c.P15 (“the PSA” or “the Act”) for relief from the statutory requirement to serve notices in respect of disciplinary hearings within six months of the date when the facts on which the complaints were based came to the attention of the Chief. The two groups of applicants (the “Correia Group” and the “Forestall Group”) have brought applications for judicial review seeking an order quashing and setting aside the Board’s decision and an order preventing and prohibiting the Chief and/or the Board from proceeding with disciplinary hearings. The applicants in Court File No.: 388/06 (the “Correia Group”) ask, in the alternative, that the Delay Application be remitted to a disinterested person pursuant to s. 16 of the Public Officers Act, R.S.O. 1990, c. P.45, or that the Chief of Police and the Board provide full disclosure.

[2] At issue in these applications is the fairness of the Board’s procedure and the reasonableness of its decision. The applicants contend that they were denied natural justice as the level of disclosure was insufficient; they did not receive an oral hearing and the Board’s reasons were inadequate. The applicants also allege reasonable apprehension of bias, and they submit that the Board’s decision to grant the extension of time was unreasonable.

Background

[3] In 1999, the Toronto Police Service (“TPS”) began an investigation into allegations of criminal behaviour and professional misconduct by the Central Field Command Drug Squad – Team 3 (“Drug Squad”) under the command of Detective (now Staff Sergeant) John Schertzer in the period between 1995 and 1999. The investigation resulted in the arrest in 2004 of six officers against whom 40 criminal charges were laid dealing with 18 separate transactions. The Correia Group consists of five of those six officers.

[4] Although not criminally charged, Jason Kondo, Gregory Forestall, Jonathan Reid and Michael Turnbull were named as unindicted co-conspirators. Christopher Higgins and Sean McGuinness will be Crown witnesses in the trial of the criminally charged officers. The six officers who were not criminally charged are the applicants in Court File No.: 370/06 (“the Forestall Group”).

[5] Pursuant to s. 64(7) of the PSA, if the Chief of Police is of the opinion that a police officer’s conduct may constitute misconduct, as defined in s. 74 of the Act, he or she shall hold a hearing into the matter. However, the Chief cannot serve a notice of hearing under the PSA if six months have elapsed since the facts on which a complaint is based first came to his or her attention, unless the Chief applies to the Board, and the Board determines that “it was reasonable, under the circumstances, to delay serving the notice of hearing.”

The Delay Application

[6] In a memo dated March 7, 2006 (“the Delay Application”),[^1] the Chief recommended that the Board approve service of a number of notices of hearing against the six officers in the Forestall Group and the five officers in the Correia Group. In that 20 page document, he outlined the background, and he offered explanations for the delay in laying disciplinary charges. The proposed notices of hearing detailing approximately 90 disciplinary charges were attached.

[7] The Delay Application identified three general reasons for the request to serve notices of hearing six to eleven years after the events had occurred: delay due to the criminal investigations; delay due to disclosure issues and case management; and delay due to potential risks to confidential informers.

[8] The Delay Application does not indicate precisely when the facts on which the complaints are based first came to the attention of former Chief Fantino. It does indicate that the investigation surrounding allegations of criminal behaviour and related professional misconduct had been “ongoing in one form or another since early 1999”. In April 1999, Detective Sergeant Randy Franks and Detective Marie Greer of the Internal Affairs Unit (“IAU”) commenced an investigation as a result of complaints lodged by ten lawyers of the criminal defense bar on behalf of their clients, the majority of the clients having been charged with drug offences by the Drug Squad. The Franks and Greer investigation centred on allegations of theft of property and cash and other criminal activity related to 11 searches and arrests. When that investigation ended in April 2000, there was insufficient evidence to lay criminal charges. Further investigative work was not performed due to a lack of resources.

[9] In November 1999, the IAU commenced a parallel but separate investigation that related to the confidential informer files of the Drug Squad. That investigation was precipitated by four confidential informers, who did not know each other, who advised IAU investigators that, contrary to existing police reports, they had not received the sums of money claimed to have been given to them by Drug Squad officers. In some instances, the confidential informants claimed that the signatures on receipts were not theirs. As a result of that Fink Fund investigation, in November 2000, eight former members of the Drug Squad were charged criminally with various deceit and theft related charges. Those charged included some of the Correia Group and some of the Forestall Group.

[10] In addition to those criminal charges, the eight former members of the Drug Squad were served with notices of hearing under the PSA. Three members of the Correia Group and two in the Forestall Group were served with these earlier notices of hearing. Some of these PSA charges remain outstanding but hearings on these charges are not anticipated before the conclusion of the outstanding criminal charges against Schertzer, Pollard and Correia are resolved.

[11] In April 2001, Franks and other investigators conducted an administrative audit/investigation of the Drug Squad. Several Drug Squad cases were identified as potentially disclosing police misconduct. In R. v. Kai Sum (Simon) Yeung, three officers had been found to have committed acts of perjury and obstructed justice relating to a failure to disclose the true role of a police agent. The federal prosecutors were informed. Mr. Yeung was encouraged to appeal his conviction. In an affidavit sworn July 5, 2001, Franks detailed for the Court of Appeal the facts of the case and the growing list of other allegations of misconduct against certain members of the Drug Squad. The Court of Appeal granted an order sealing the file and prohibiting publication of Mr. Yeung’s name on the grounds that the contents of the affidavit would compromise the ongoing investigation of the officers and related reasons. [^2]

[12] In R. v. Mark Morgan, officers also failed to disclose the true role of a police agent and an officer committed perjury while testifying.

[13] In May, 2001 the Administrative Audit/Investigation seized almost 700 crown briefs that had been generated by Detective Schertzer and officers under his supervision. When the investigators realized that Schertzer and seven other members of the Drug Squad had previously worked together in a different Drug Squad and in a Major Crime Unit, the seizures were broadened to include additional crown briefs. The Administrative Audit/Investigation revealed additional evidence of police procedural and criminal misconduct by members of Schertzer’s teams in both Drug Squads and in the Major Crime Unit.

[14] The early investigations led then Chief Fantino to create the Professional Standards Special Task Force (“Special Task Force”) to conduct a comprehensive investigation. In July 2001, the results of the administrative audit/investigation were reported to the Chief. He asked the RCMP for assistance. Chief Superintendent (now Assistant Commissioner) John Neily of the RCMP was seconded to the TPS. During the late summer and fall of 2001, he created the Special Task Force that required off-site secure facilities due to the sensitivity of the investigation. The Special Task Force was resourced and staffed by the end of October 2001. As part of its investigation, the Special Task Force re-interviewed the four confidential informers who had been the subject of the Fink Fund investigation and additional information was obtained relating to the interaction between those informers and the Drug Squad officers. That information was provided to the Crown Law Office – Criminal in January 2002.

[15] The Assistant Crown Attorney assigned to prosecute the criminal charges against the eight officers referred to in paragraph 9 above concluded that the statements taken by the Special Task Force from the confidential informers had to be disclosed to the accused officers. In February 2002, the Crown stayed the criminal charges against the eight officers and publicly indicated that proceeding with the prosecution might compromise an ongoing criminal investigation. Those charges were not re-instituted within the 12 month period provided in the Criminal Code.

[16] The IAU conducted a separate investigation into an allegation of perjury against Forestall. In June 2001, a charge of perjury was laid against him. That charge was stayed in February 2002 for the same reason.

[17] Once the Special Task Force was established, a number of strategic decisions were made. It was agreed that the investigators would focus on criminal charges. None would be laid without the support of the Crown Law Office – Criminal. Issues of misconduct under the PSA identified by the Special Task Force would be reported to the TPS upon completion of the criminal investigation. In late fall 2001, Neily informed the Staff Superintendent in charge of Professional Standards that the six month time period in s. 69(18) of the PSA could not be met due to the complex and lengthy nature of the developing criminal investigation.

[18] The Special Task Force seized all of the Crown briefs that Schertzer and members of the Drug Squad had been involved with. That eventually totaled more than 2,000 Crown briefs. In addition, officers’ memo books, search warrants, and paperwork submitted in the usual course of police duties were also seized. Many search warrants were obtained and executed. All of the material was scrutinized. A co-ordinated review of those officers’ 2,100 prosecutions was undertaken. Attempts to identify accurate data were hampered by poor recording keeping systems, a change in data management systems and perceived regular misrepresentation of the facts by the officers.

[19] The Special Task Force had to identify and respond to the potential problems arising from reliance on confidential informers, including the possibility of suspect officers approaching confidential informers and influencing them on what to say to investigators, the risks to their safety, and the concern that some were still being used as informants.

[20] The Special Task Force also faced hurdles in obtaining the memo books of all of the suspect officers. Although the officers were ordered to turn them in, only one officer did so. In March 2002, while the Ontario Provincial Police were arresting a former member of the Drug Squad (who was a suspect officer) for domestic assault, a search yielded illegal weapons and ammunition, illegal drugs, over 50 of that officer’s memo books, originals and copies of confidential informer files and payment documents, arrest reports, search warrants, prisoner photographs, Crown briefs and other related material.

[21] As a result of allegations against another Drug Squad Team, further investigations were conducted. The Special Task Force also undertook a review of the financial affairs of the subject officers. This net worth analysis was designed to determine whether each family had sufficient legitimate means to accumulate property while continuing to meet other expenditures. It involved checking all 50 Land Registry Offices in the province of Ontario. Searches were conducted under the Personal Property Security System. Direct deposits of officers’ pay were investigated. A credit history was developed. Many search warrants were obtained and executed at many financial and credit granting institutions used by the suspect officers. Having identified over 222 accounts, a forensic accounting firm was retained to prepare a report that was received in December 2003. The findings of that report were consistent with the allegations of theft against two officers. The findings in relation to two other officers were inconclusive.

[22] In December 2003, the Crown Law Office – Criminal finished its review. In January 2004, charges were laid against the five officers in the Correia Group.

[23] The Delay Application noted that the “sheer volume of the paperwork that was collected by the Special Task Force necessitated the use of one of the most modern case-management computer programs available”. Eventually 550,000 pages making up over 90,000 text files were entered. The volume and extent of disclosure to be provided to the accused officers is described as “massive”.

[24] In his supplementary report dated June 14, 2006, the Chief told the Board that that information was no longer accurate. The number of seized files, text files and the size of the investigative database had in fact increased.

[25] It took in excess of one year for the Crown to provide the preliminary disclosure material that would have totaled approximately 600 volumes if it had been delivered in hard copy but it was provided electronically. The preliminary inquiry began in January 2006 and was conducted using a specially equipped court room.

[26] The Delay Application includes the expectation that since the proposed disciplinary charges closely resemble the criminal charges, the disclosure in the disciplinary proceedings would be virtually identical. The Chief pointed out that TPS Procedure 13-05 requires “full disclosure” be given to subject officers when an application is made to the Board pursuant to s. 69(18). Historically, “full disclosure” had been interpreted to mean the investigative (Crown) brief that the officer would need to make full answer and defence to the allegations.

[27] The Chief noted that Procedure 13-05 was being re-assessed and the meaning of “full disclosure” in the context of an application to the Board under s. 69(18) would be narrowed to reflect “what is reasonably required by the officer to respond”. He indicated that he would not comply with that Procedure with respect to the 11 officers because he was unable to provide disclosure of the Crown brief. The Delay Application concluded as follows:

It is submitted, however, that Procedure 13-05 is aimed at providing the officer with “full disclosure” of the issue that will be before the Board: the reasonableness of the delay. Neither the strength of the prosecution’s case nor the guilt or innocence of the officers is an issue before the Board, therefore, disclosure of the crown brief to support the specifics contained in the Notices of Hearing is not necessary. Fairness dictates that the officers be provided disclosure of the grounds upon which the Chief of Police will ask the Board for its approval to serve the Notices of Hearing outside the six month time period and that is being provided.

I am seeking approval to serve Notices of Hearing not only on those officers who are criminally charged, but also on officers who will be witnesses for the Crown in the criminal prosecution. It is my position that disclosure of the crown brief may have an adverse impact on the criminal prosecution, either by the potential contamination of witnesses, who have no right to access the disclosure in the context of the criminal proceeding, or in creating side issues with respect to the extent and fullness of the disclosure.

Should the Board approve serving the Notices of Hearing, the Crown, pursuant to section 69(16) of the Police Services Act, has the ability to order me to stay the misconduct proceedings against the officers pending the conclusion of the related criminal charges. It is submitted that none of the officers have faced any prejudice as a result of the delay incurred in the service of the Notices of Hearing. The officers were made aware, as is required by both the Police Services Act and Toronto Police Service procedures, that they were under investigation for misconduct and, at appropriate times during the Special Task Force’s investigation, they were served with the requisite notice.

The Applicants’ Requests for Disclosure

[28] A copy of the Delay Application was served on all of the officers. Between April 4 and June 20, 2006, Ms. Mulcahy for the Correia Group and Mr. Addario for the Forestall Group made several requests for disclosure in order to assist them in responding to the Application. Both relied on TPS Procedure 13-05.

[29] Mr. Harry G. Black, Q.C., also counsel for the Correia Group, asked the Board for copies of all minutes concerning his clients. He asked TPS for disclosure of Prosecution Services logs or file notes. In demanding the disclosure contemplated by Procedure 13-05, Ms. Mulcahy pointed out that the conditions under which disclosure briefs had been provided in the criminal cases prohibited counsel from using them in the disciplinary proceedings to assert that the delay in serving the notices of hearing was unreasonable.

[30] Mr. Addario asked the TPS to provide all information relating to the investigation of misconduct and the decision to prosecute or to delay the prosecution. He specifically requested copies of the Prosecution Services logs or file notes, email or other such correspondence or memoranda. If the information was not in writing, he asked that it be put in writing and produced. He asked for a copy of all material in the Crown brief in relation to the prosecution of the Correia Group. He indicated that he required the material in order to respond to the assertion by the Chief that the fruits of the investigation against the Correia Group would be relevant to the decision as to whether to prosecute. He took the position that the material would be relevant to the exercise of the discretion of the Board under s. 69(18). He pointed out that since his clients were not charged criminally, they did not have access to Crown disclosure.

[31] Mr. Addario also wrote to the Board and asked for copies of all Board minutes and other documents in possession of the Board in relation to matters where members of the Forestall Group had been considered.

[32] The Board considered the requests for disclosure at its meeting on April 24, 2006. A copy of the minutes of that meeting was provided to counsel. The Board declined to provide the materials on the basis that the correspondence did not provide any basis for the requests. After counsel made further demands, the Board again considered the issue and on June 15, the Board re-confirmed its earlier decision not to produce copies of minutes, if any, or other documents in the Board’s possession regarding the officers. The Board also approved a motion that it would not direct the Chief of Police on how to interpret one of his Procedures (specifically 13-05), and that the matter of full disclosure would be considered by the Board when it dealt with the merits of the Delay Application.

[33] In letters dated May 29, 2006, Ms. Mulcahy and Mr. Addario strongly encouraged the Board to decline the Chief’s Delay Application, primarily on the basis of unreasonable delay and the prejudice to the officers as a result. In a memo dated June 14, 2006, the Chief provided the brief supplementary information referred to in para [24]. Ms. Mulcahy and Mr. Addario were given an opportunity to respond, and both sent letters urging the Board not to place any reliance on it.

[34] Counsel were not permitted to attend the Board meeting on July 10, 2006.

Decision of the Board

[35] The Board approved the Delay Application at a closed meeting on July 10, 2006. The extract from the Board Minutes reads:

Following a review of the submissions from all the parties involved in this delay application, the Board approved the following Motions:

1. THAT, on the totality of the material before us, we are all of the view that the delay in preferring the charges under the Police Services Act against the subject officers was not unreasonable and that the charges must be laid forthwith;

2. THAT the Board approve the Chief’s report dated March 07, 2006; and

3. THAT the Board receive the following:

• written submissions, dated May 29, 2006 from Ms. Mulcahy and Mr. Addario;

• fax cover sheets and correspondence (all dated June 14, 2006) from Staff Supt. Corrie to Ms. Mulcahy and Mr. Addario;

• report dated June 14, 2006 from Chief Blair;

• written submission dated June 17, 2006 from Ms. Mulcahy; and

• written submission dated June 23, 2006 from Mr. Addario.

[36] As a result of the decision of the Board on July 10, 2006, notices of hearing of disciplinary charges were served on all of the 11 officers. The Forestall Group application for judicial review was issued July 25, 2006 and the Correia Group application was issued August 2, 2006.

The Issues

[37] The following issues arise in these applications:

1. What is the appropriate standard of review?

2. Did the Board breach the rules of natural justice and its duty of procedural fairness by:

(a) failing to disclose all the material requested by the applicants;

(b) determining the procedure to be adopted by the Board without notice and without providing the applicants an opportunity to be heard;

(c) failing to provide adequate reasons for its decision; and

(d) undue delay?

3. Did the conduct of the Board give rise to a reasonable apprehension of bias?

4. Was the Board’s decision reasonable?

Issue No. 1: What is the appropriate standard of review?

[38] No assessment of the appropriate standard of review is necessary where the requirements of natural justice and procedural fairness are in issue. A breach of the rules of natural justice or procedural fairness is an excess of jurisdiction. The question is whether the requirements of procedural fairness and natural justice necessary in the particular circumstances have been met (Moreau-Bérubé v. New Brunswick (Judicial Council) (2002), 2002 SCC 11, 209 D.L.R. (4th) 1 (S.C.C.) at para. 74; London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.) at para. 10).

[39] With respect to the merits of the Board’s decision, the standard of review is reasonableness, given there is no appeal from the Board’s decision; the Board’s policy role and experience in overseeing the Chief’s applications under s.69(18); the purpose of the Act, which is directed at maintaining an efficient police force in the community; and the nature of the question before the Board, which is one of mixed fact and law. The parties agree on this standard of review.

Issue No. 2: Did the Board breach the rules of natural justice and its duty of procedural fairness?

The Content of the Duty of Fairness

[40] The applicants submit that procedural fairness was denied because of the lack of disclosure, the absence of an oral hearing, the insufficiency of the Board’s reasons and the prejudice caused to them by undue delay.

[41] An understanding of the applicable principles of natural justice and fairness begins with Baker v. Canada (Minister of Citizenship and Immigration) (1999), 1999 699 (SCC), 174 D.L.R. (4th) 193 (S.C.C.), where the Supreme Court described the underlying principles as follows (at para. 28):

The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional and social context of the decision.

[42] The Supreme Court has held that the content of the duty of procedural fairness or natural justice is variable, and depends on the specific context of each case (at para. 21). Factors to be considered in determining the content of the duty in a particular situation are:

1. the nature of the decision and the decision-making process employed by the public body;

2. the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates;

3. the importance of the decision to the individuals affected;

4. the legitimate expectations of the party challenging the decision; and

5. the nature of the deference to be accorded to the decision-making body

(Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village) (2004), 2004 SCC 48, 241 D.L.R. (4th) 83 (S.C.C.) at para. 4, rephrasing the fifth factor from Baker, supra, at paras. 22-27).

[43] The first factor to be considered is the nature of the decision. The Board’s task under s. 69(18) of the PSA is to determine whether the Chief’s delay in serving notices of hearing was reasonable in the circumstances. The applicants submit that the decision before the Board was a serious one engaging their right to continue in their profession and employment. They characterize the decision-making process of the Board as similar to judicial proceedings and requiring a full hearing.

[44] It is true that the decision has a serious impact on the officers, because there will be no disciplinary proceedings if the Board does not find the delay in serving the notices of hearing to be reasonable. However, the Board’s decision does not determine the merits of the allegations against the officers and thus does not engage their right to continue in their employment. We 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. We agree with an earlier statement of this Court that the decision is purely procedural, and that s. 69(18) is not in the nature of a limitation period (Coombs v. Toronto (Metropolitan) Police Services Board, [1997] O.J. No. 5260 (Div. Ct.) at paras. 7, 10).

[45] The second factor is the statutory scheme. The applicants submit that the statutory scheme and provisions show that the Legislature intended that the issue of whether or not a delay in serving notices of hearing was reasonable was intended to be addressed as a serious matter. The Act contemplates that disciplinary proceedings will generally be commenced within six months of the Chief first having knowledge of the underlying facts, unless the Board is satisfied that the delay beyond this period was reasonable.

[46] The decision was made by the Board at a regular meeting, and such a proceeding is not judicial in character. Section 37 of the PSA expressly excludes the application of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) except with respect to Board hearings relating to a complaint against the Chief pursuant to s. 65(9) of the PSA. Moreover, s. 69(1) provides that the SPPA applies only to a hearing relating to a complaint against the Chief (s. 65(9)) or a hearing by the Chief relating to misconduct or unsatisfactory performance by an officer (s. 64(7)). This suggests that other proceedings before the Board do not require more than minimal rights of procedural fairness.

[47] The Board’s responsibility, as set out in s. 31(1) of the PSA, is to exercise broad supervisory powers over the Chief and through him, the TPS. However, it is to act at a policy level, as s. 31(4) states that the Board “shall not direct the chief of police with respect to specific operational decisions or with respect to the day-to-day operation of the police force”. The Supreme Court of Canada observed in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 at para. 64 that the Board “implements general policy and monitors the performance of the various chiefs of police”, but is not involved in the day to day conduct of the police force.

[48] The third factor is the importance of the decision for the individuals affected. The Chief submits that the impact on the applicants is “collateral”, since they will have a chance to defend against the charges at a disciplinary hearing. However, the decision is said to impact the Chief directly, since a negative decision would end his ability to pursue charges.

[49] The applicants relied on Rogers v. McCarthy, [1991] N.S.J. No. 597 (S.C.), where the judge stated, “The decision to extend the time for an investigation is something more than a simple administrative decision; it is one of some substance” (at p. 7 (Quicklaw)).

[50] The Board’s decision does not determine the merits of disciplinary charges, but we agree that its decision is important to an individual since a determination that the delay was unreasonable will put an end to the disciplinary proceedings. Therefore, some degree of procedural fairness is required at this stage.

[51] The fourth factor is the legitimate expectations of the party arising from the decision-maker’s conduct. This argument is best addressed in the context of the disclosure issue, since the applicants rely on TPS Procedure 13-05 as one of their arguments.

[52] Finally, deference to an administrative agency is appropriate when the constituent act of the agency confers discretion as to the choice of procedures and where the agency has expertise in determining what procedures are appropriate in the circumstances. In this case, s. 37 of the PSA provides that the Board “shall establish its own rules and procedures in performing its duties under this Act and, except when conducting a hearing under subsection 65(9), the Statutory Powers Procedure Act does not apply to a board”.

[53] When all these factors are considered, it is apparent that some degree of procedural fairness is required. However, the Board is not required to hold a judicial-type of hearing. Rather, as indicated above, minimal rights of procedural fairness must be respected including notice, appropriate disclosure and an opportunity to respond.

The Disclosure Issue

[54] The applicants submit that they were denied procedural fairness because of inadequate disclosure. Prior to the Board’s decision, they had a copy of the Chief’s Delay Application, and they had an opportunity to respond to it. In addition, they had notice of all the material that went before the Board. However, they claim that in order to respond to the case against them, disclosure was required of all the material relied upon by the Chief in preparing his Delay Application, as well as any information respecting the prior involvement of members of the Board in matters related to the allegations of misconduct. They submit that the lack of disclosure made it impossible for them to assess factors relevant to determining the reasonableness of the delay, including the complexity of the case and the prejudice to them from delay – for example, because of the loss of evidence or the death of witnesses.

[55] As well, they argue that they had a legitimate expectation that they would receive full disclosure of the material relied upon, including all material related to the criminal charges referred to, given TPS Procedure 13-05. They submit that where a legitimate expectation arises from a published policy of full disclosure, individuals affected are legitimately entitled to expect the provision of information to meet this standard (British Columbia (Securities Commission) v. Pacific International Securities Inc., 2002 BCCA 421, [2002] B.C.J. No. 1480 ( B.C.C.A.) at para. 14).

[56] Service Procedure 13-05 deals with PSA hearings. Section 9, under the heading “Unit Commander”, reads:

When notified by Prosecution Services that Board approval is required for a delay of service the TPS 951 shall

• Consult with Prosecution Services

• prepare a Board report detailing the reasoning for the delay request

• provide a copy of the Board report and full disclosure to the involved officer, at least four (4) weeks prior to the Board meeting

• prepare a subsequent/secondary Board report to confirm service of the initial Board report, and case disclosure, upon the involved officer

• attend the Board meeting, when necessary

• notify Professional Standards with the results of the Board meeting, by internal correspondence

[57] In a letter dated May 25, 2006, Staff Inspector George Cowley conceded that historically, full disclosure of the merits of the allegations, as well as the reasons for delay, had been provided under Procedure 13-05. However, he took the position that past practice was not binding on the prosecution, and he refused the applicants’ request for disclosure.

[58] In a response to a request that the Board order disclosure by the Chief, the Board stated, in a letter dated June 20, 2006,

… the Board will not direct the Chief of Police on how to interpret one of his Procedures or that he comply with a Procedure in a particular way, and that the matter of full disclosure would be considered by the Board in considering the details of the delay application.

[59] A legitimate expectation may result from an official practice or an assurance that certain procedures will be followed as part of the decision-making process. According to L’Heureux-Dubé J. in Baker, supra, (at para. 26 ), the doctrine of legitimate expectations,

… as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. (emphasis added)

[60] For the doctrine to apply, the practice must be clear, unambiguous and unqualified (Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services) (2002), 2002 17842 (ON CA), 62 O.R. (3d) 305 (C.A.) at para. 83, aff’d on other grounds 2004 SCC 54, [2004] S.C.J. No. 51). In order to be “legitimate”, the expectation must not conflict with a decision-maker’s statutory or common law duties (Addy v. Canada, 1997 5296 (FC), [1997] 3 F.C. 784 (T.D.) at para. 49).

[61] The Chief submits that it was made known to the applicants that the procedure was under review and the historical interpretation should not be relied upon. However, given that the Service Procedure had not been changed at the time of the application, we find that the caution alone would not defeat the applicants’ legitimate expectations.

[62] The Chief has taken the position that disclosure of the investigative brief would be highly prejudicial to the parallel criminal proceedings and against the public interest. As he stated at page 19 of the Delay Application,

. . . disclosure of the crown brief may have an adverse impact on the criminal prosecution, either by the potential contamination of witnesses, who have no right to access the disclosure in the context of the criminal proceedings, or in creating side issues with respect to the extent and fullness of the disclosure.

[63] It would be inconsistent with the statutory duties of both the Board and the Chief to require disclosure of the investigative brief at this stage, given the likely jeopardy to the criminal proceedings and the consequent harm to the public interest. In the circumstances of this case, we conclude that the doctrine of legitimate expectations does not require full disclosure of the investigative brief at this pre-charge stage.

[64] Procedural fairness requires that a party know the case to be met and have an opportunity to respond. Disclosure of the case to be met will, of course, be necessary prior to the disciplinary hearings. However, at this stage, the Board’s task was to determine whether the delay in serving the notices of hearing was reasonable in the circumstances. In our view, the disclosure provided to the applicants at this pre-charge stage satisfied the requirements of the duty of procedural fairness. The applicants knew the case to be met in response to the Chief’s Delay Application under s. 69(18), as they had a very detailed document in which he set out his reasons for the delay, as well as his supplementary report. Full disclosure of the investigative brief in the criminal proceedings and access to all documentation underlying the report were not necessary for the applicants to respond to the application under s. 69(18).

The Procedure adopted by the Board

[65] The applicants submit that the Board failed to provide procedural fairness by adopting the procedure to be followed without notice and by failing to provide them with an opportunity to be heard. More particularly, they submit that the Board acted unfairly by proceeding on the basis of written submissions.

[66] Procedural fairness does not require an oral hearing in all cases. What is important is the parties’ ability to participate in a meaningful way to answer the case against them (Baker, supra, at para. 33; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 121).

[67] Section 37 of the PSA, quoted above, gives the Board the power to determine the manner of hearing under s. 69(18). The Board considered the request for an oral hearing from counsel for the charged officers and decided that an oral hearing was not appropriate in the circumstances. The applicants were able to present their arguments through written submissions to the Board, and these were considered by it according to the Board’s minutes.

[68] We conclude that there was no denial of procedural fairness because of the failure to hold an oral hearing. While cases such as Coombs, supra at para. 5 and Bennett v. Toronto (Metropolitan) Police Services Board, [1995] O.J. No. 4816 (Div.Ct.) at para. 3 pre-date Baker, the analysis in Baker and Suresh indicates that these authorities are still good law, and an oral hearing is not required under s. 69(18).

The Adequacy of the Reasons

[69] The applicants submit that the Board failed to provide adequate reasons for its decision to permit the late serving of the notices of hearing. The Board’s decision, as set out in the minutes of the July 10, 2006 in camera meeting, state:

Following a review of the submissions from all the parties involved in this delay application, the Board approved the following Motions:

6. THAT, on the totality of the material before us, we are all of the view that the delay in preferring the charges under the Police Services Act against the subject officers was not unreasonable and that the charges must be laid forthwith;

7. THAT the Board approve the Chief’s report dated March 07, 2006; …

[70] The applicants submit that given the substantial issues involved, their significance to the applicants, and the general scheme of the PSA, the Board was required to provide meaningful reasons for its decision, and it failed to do so.

[71] The test, in determining the adequacy of reasons, is whether they permit the court to conduct a meaningful review – in this case, a judicial review on the standard of reasonableness. In Baker, supra, the Supreme Court of Canada held that the requirement for reasons was met, since the notes of a subordinate reviewing officer should be taken to be the reasons for decision of the Immigration Officer who refused to grant an exemption from the regulations under the Immigration Act on humanitarian and compassionate grounds.

[72] In this case, the basis for the Board’s decision is obvious: by approving the Chief’s report, the Board accepted that the delay was reasonable for the reasons set out by the Chief. The decision of the Board allows this Court to conduct a meaningful judicial review on the standard of reasonableness.

[73] The Board failed to deal explicitly with the issue of disclosure, despite its statement to the applicants referred to above in para. [32] above that it would deal with this issue at the time it considered the Chief’s Delay Application. However, the Board adopted the Chief’s report, which set out his reasons for refusing to provide full disclosure of the investigation brief. The Board must be taken to have adopted his rationale.

Undue Delay

[74] The applicants submit that the delay in proceeding with disciplinary action has had a serious toll on their personal and professional lives and prejudiced their ability to make full answer and defence to the allegations of misconduct. Therefore, there is a denial of procedural fairness.

[75] In Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 190 D.L.R. (4th) 513, the Supreme Court of Canada discussed undue delay and the duty of procedural fairness. The majority concluded that unreasonable delay could constitute procedural unfairness, if the delay is “unacceptable to the point of being so oppressive as to taint the proceedings” (at para. 121). The Court stressed that the determination of whether a delay is inordinate turns on an assessment of contextual factors, including the nature of the proceeding and its complexity (at para. 121).

[76] The decision of the Board under s. 69(18) is not directed at, nor does it finally dispose of the issue of unreasonable and prejudicial delay. Whether there has been unreasonable delay that has prejudiced the officers or that constitutes an abuse of process is a matter that should be determined in a hearing on the merits before the officer hearing the disciplinary charges and on the basis of a proper evidentiary record. In our view, it is premature to consider this issue at this time (Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.) at p. 800; Coombs, supra at para. 12).

Issue No. 3: Did the conduct of the Board give rise to a reasonable apprehension of bias?

[77] The applicants submit that a number of factors give rise to a reasonable apprehension of bias on the part of the Board and indicate a prejudgment of the issues before it: the refusal to order the Chief to follow the disclosure policy; the decision, in the absence of input from the applicants, to limit the scope of the hearing to written submissions; the failure to provide adequate reasons for its decision; and a private conversation between the Chair of the Board and the Chief. In addition, the Board refused to disclose minutes of the Board to show members’ prior involvement in matters that were the subject of the complaints. This is said to have prevented the applicants from addressing any information that the members had acquired. As well, the Board declined to remit the matter pursuant to s. 16 of the Public Officers Act to a disinterested person to consider the Chief’s Delay Application.

[78] In determining whether there is a reasonable apprehension of bias on the part of a decision-maker, the test is whether a reasonably informed person could reasonably perceive bias on the part of the decision-maker (Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 84 (SCC), [1992] 1 S.C.R. 623 at para. 22). There must be an evidentiary foundation for the court to find a reasonable apprehension of bias (TELUS Communications Inc. v. Telecommunications Workers Union,2005 FCA 262, [2005] F.C.J. No. 1253 (C.A.) at para. 38).

[79] In our view, there is no evidence on the record to support a finding of a reasonable apprehension of bias. The applicants appear to base their argument on their dissatisfaction with the way in which the Board has proceeded and its decision on the Chief’s Delay Application. This is not sufficient to meet the test for a reasonable apprehension of bias.

[80] Moreover, the decision of the Board shows that each member considered whether recusal was warranted because of prior knowledge of or exposure to matters touching on the charges. The Minutes of the Board of June 15, 2006 read as follows:

Each Board member considered whether they should recuse themselves on whether or not they had previous knowledge of the matters contained in the Chief’s delay application. This included whether they received any information in addition to the information that would be received while fulfilling the normal course of their statutory duties under the Police Services Act.

The Board also considered whether it should apply for the appointment of a disinterested person to consider the Chief’s delay application.

[…] the Board will not pursue an application before a judge to appoint a disinterested person to consider this application, as neither the Board nor the individual Members has an interest in the Chief’s application.

[81] The fact that the members of the Board might have prior information relating to the matters discussed in the Delay Application is not sufficient to prove a reasonable apprehension of bias. The PSA confers a policy oversight function on the Board, as well as the power to review the Chief’s reasons for delaying service of notices of hearing. It should be presumed that the Legislature contemplated that the Board might have some prior knowledge about particular investigations when making a decision on the application to extend time.

[82] The crucial question is whether there is evidence that the Board members prejudged the issue. In our view, there is no evidence in the record to suggest that the Board members approached their decision with a closed mind, or that they made the decision on the basis of information other than the information provided to the applicants and their submissions.

Issue No. 4: Was the Board’s decision reasonable?

[83] A decision will be unreasonable only if there is no line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons can stand up to a somewhat probing examination, the decision will not be unreasonable, even if the tribunal’s explanation is not one that the reviewing court finds compelling (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; [2003] S.C.J. No. 17 at para.55 (QL)).

[84] Subsection 69(18) directs the Board to form an opinion, whether in the circumstances, it was reasonable for the Chief to delay serving the notices of hearing. In coming to its opinion on this limited issue, it is for the Board to decide how much weight to give to the relevant factors. It was for the Board to evaluate the complexity of the investigation, the potential prejudice to the applicants, and the public interest in seeing serious police misconduct adjudicated, among other factors. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process (Suresh at para. 37). Fundamentally, the applicants seek to do this by asking us to engage in a re-weighing process of the factors considered by the Board to conclude that its decision was unreasonable. They point to four factors.

[85] First, they contend that the Chief’s Delay Application lacked the necessary specificity in that it did not precisely identify when the Chief first had knowledge of the possible misconduct alleged in the notices of hearing, and the Board required this information in order to assess the reasonableness of the delay.

[86] The Chief’s Delay Application discloses that the investigation was ongoing in one form or another since early 1999 and that by late fall 2001, it was realized that the six month time period could not be met. Either date can be taken as a starting point. In assessing the reasonableness of the delay, the Board was not required to form an opinion based on a time-line, but to consider whether the reasons advanced by the Chief for delaying service of the notices of hearing were reasonable under the circumstances. It bears repeating that s. 69(18) is not a limitation period. It speaks of reasonableness (for the delay), under the circumstances. Given the length and complexity of the investigation into the criminal charges, we find that it was reasonable for the Board to conclude that the delay was reasonable in the circumstances.

[87] Second, the applicants contend that it was unreasonable for the Board to fail to differentiate between differently situated officers, that is, among those who are criminally charged (the Correia Group), those named as unindicted co-conspirators in the Forestall Group, and Officers McGuiness and Higgins who are in neither group.

[88] We do not agree. It was unnecessary for the Board to distinguish among the 11 officers. They are all related to the same investigation and it made sense to deal with them together. It was reasonable for the Board to conclude that the circumstances warranted delaying service of notices of hearing on all of the officers who were the subject of the investigation. There were no compelling reasons to differentiate among them.

[89] Third, the applicants contend that the decision is unreasonable because the Board failed to address the issue of prejudice to the officers. They rely on the decision in Gage v Attorney-General (Ontario) (1992), 1992 8517 (ON SCDC), 90 D.L.R. (4th) 537 (Ont. Div. Ct.). In that case, unlike here, there was a failure to comply with a statutory notice requirement. Further, the officer was actively misled as to the status of charges and the continuing failure to give him notice deprived him of the opportunity to seek timely legal advice and to prepare in a timely fashion to meet the case against him. Gage is not analogous. It is not concerned with the predecessor to s. 69(18). In Gage, the Act was triggered by a public complaint about the conduct of a police officer and the Court found that time was of the essence and expedition essential to the legislative intent.

[90] In their submissions to the Board, the applicants described in a general way the prejudice to the officers as a result of the delay. There is a passing reference to prejudice in the Chief’s Delay Application where he submits that none of the officers has faced any prejudice as a result of the delay. He points out that the officers were made aware, as required by both the PSA and TPS procedures, that they were under investigation for misconduct and, at appropriate times during the Special Task’s Force’s investigation, they were served with the requisite notice.

[91] While prejudice is a factor that the Board may reasonably consider, it is not determinative of the inquiry into the reasons for delay. As discussed earlier in these reasons, the question of prejudice due to unreasonable delay is reasonably left to be determined in a hearing on the merits and on the basis of a proper evidentiary record (Ontario College of Art, supra at p. 800; Coombs, supra at para. 12; Hughes v. Ontario College of Physicians and Surgeons (1994), 1994 10952 (ON SCDC), 112 D.L.R. (4th) 253 (Ont. Div. Ct.)).

[92] Fourth, the applicants contend that the Board’s decision is unreasonable because the Chief provided no explanation for the delay in laying disciplinary charges in the period after criminal charges were laid (January 2004) and then in the period after disclosure was made. The Chief’s submissions explain that it took in excess of one year after the laying of criminal charges for the Crown to provide preliminary disclosure. This was provided in electronic form as the disclosure in hard-copy would have totaled approximately 600 volumes. In his supplementary report of June 14, 2006, the Chief states that he had underestimated the number of seized files, text files and the size of the investigative database and that they have all, without exception, increased. He indicated in his March Delay Application that disclosure continues. The preliminary inquiry into the officer’s criminal charges did not commence until January 2006. The Chief’s Delay Application was made a few months later.

[93] Laying disciplinary charges too early carried the inherent danger of compromising the criminal investigation. Later, it had the potential to compromise the process of disclosure in the criminal proceedings. Still later, there was a concern for witness contamination as some of the applicants will likely be witnesses in the criminal proceedings. As witnesses, they have no right to access the disclosure in the context of criminal proceedings. Moreover, the TPS does not have the disclosure material that was provided to the criminally charged officers, and restrictions were placed on the use of that disclosure. It was reasonable for the Board to conclude that this adequately explained the delay for both periods in question.

[94] The Chief’s submissions afforded ample grounds upon which the Board could reasonably reach the decision it did. The complexity of the investigation into the Drug Squad was unprecedented. The allegations of wrongdoing spanned four years, from 1995 through 1999. It required the Chief to request the assistance of the RCMP to manage an investigation. RCMP Chief Superintendent Neily led a team comprising 26 Toronto Police investigators, four regular members of the RCMP, and five civilian support staff. It resulted in the seizure of over 2000 Crown briefs as part of the investigation.

[95] Because of its complexity, the Crown undertook a careful review to select which criminal charges would have a reasonable prospect of conviction. It took over a year for the Crown to prepare the electronic disclosure to the criminally charged officers and disclosure continued until shortly before the Chief’s Delay Application was submitted to the Board. There was more than sufficient material before the Board to support the conclusion that the delay was reasonable so as to permit the service of notices of hearing beyond the six-month period. To conclude otherwise would mean that the more serious and extensive the wrongdoing by a police officer – or a group of officers – the less likely disciplinary action could be taken. This could not have been the intention of the Legislature under s. 69(18).

[96] For all of these reasons, we conclude that the Board’s decision was a reasonable one.

[97] Finally, there is no merit to the applicants’ alternative grounds for judicial review. The Legislature intended the decision under s. 69(18) to be entrusted to the Board and not to a person appointed under the Public Officers Act, R.S.O. 1990, c. P.45, s. 16. The applicants seek to improperly use section 16 to amend or temporarily suspend the application of s. 69(18), which specifically authorizes the Board to make the decision regarding delay (Boucher v. Public Accountants Council (Ontario), [2000] O.J. No. 3126 at para. 33 (S.C.J.).)

Conclusion

[98] For these reasons, the applications for judicial review are dismissed. As no party is seeking costs, none are awarded.

Kiteley J.

Lax J.

Swinton J.

Released: August 2, 2002

COURT FILE NO.: 370/06 and 388/06

DATE: 20070802

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Forestall et al

• and -

Toronto Police Services Board and Toronto Chief of Police, William Blair

AND BETWEEN:

Correia et al

• and -

Toronto Police Services Board and Toronto Chief of Police, William Blair

REASONS FOR JUDGMENT

BY THE COURT

Released: August 2, 2007

[^1]: This document is sometimes referred to as the Chief’s Report.

[^2]: In January 2004, the Supreme Court of Canada granted the application by media representatives for access to the material that had been sealed by the Court of Appeal.