2012 ONSC 7347

COURT FILE NO.: 426/12

DATE: 20121224

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Paul ramos AND MANPREET KHARBAR

AND

THE INDEPENDENT POLICE REVIEW DIRECTOR

COUNSEL: Kevin D. Toyne for Paul Ramos

Harry G. Black Q.C. for Manpreet Kharbar

Heather MacKay and Lise G. Favreau for the Independent Police Review Director

HEARD AT TORONTO: December 10, 2012

E N D O R S E M E N T

Kiteley J.

[1] The Independent Police Review Director (the Director) has brought a motion to quash the summons to witness issued to William Ford (an investigator in the Office of the Director) and for a declaration that the witness Jean Iu (counsel to the Office of the Independent Police Review Director “OIPRD”) is not required to bring the documents listed in the Notice of Examination to that examination. For the reasons that follow the motion is granted.

Background:

[2] This application arises out of allegations that on April 24, 2011, an incident occurred at 14 Division resulting in injuries to Keith Ryan, a person who was in custody. The Special Investigations Unit investigated and laid charges of assault bodily harm against Officers Ramos and Kharbar. The trial in the Ontario Court of Justice is scheduled for two weeks commencing July, 2013.

[3] The Toronto Police Service carried out an internal investigation to determine whether the conduct of the subject officers warranted disciplinary charges. The Chief of Police caused discipline charges to be laid alleging misconduct in respect of the incident. At the request of the Crown prosecuting the criminal charges, the disciplinary hearing has been adjourned pending completion of the criminal trial.

[4] Mr. Ryan filed a complaint to the Director that was “screened in”. William Ford was assigned as investigator. Mr. Ford asked that the Officers attend for an interview. When that did not happen, the investigator served summonses pursuant to s. 26.4 of the Police Services Act requiring both officers to attend for interviews.

[5] In the Application for Judicial Review which was issued September 7, 2102, the officers seek an order quashing the summonses issued to each of the Officers. In response to the Application, the Director filed an affidavit from Jean Iu. Some of the affidavit deals with the status of the investigation, on which Ms.Iu was advised on information and belief by Mr. Ford.

[6] Pursuant to Rule 39.02, counsel for the applicants served a Notice of Examination on Ms. Iu requiring her to attend for a cross-examination and requiring that she bring the Director’s file on the Ryan matter to the examination. Ms. Iu attended for the cross-examination but did not bring the file with her.

[7] Pursuant to Rule 39.03 counsel for the applicants served a Summons to Witness on Mr. Ford which requires him to attend for an examination and bring the Director’s file on the Ryan matter with him. Mr. Ford did not attend in response to the Summons.

[8] The Application for Judicial Review was scheduled to be heard on December 10, 2012. Counsel agreed to adjourn it pending the outcome of this motion.

Positions of the Parties:

[9] In response to the motion by the Director to quash the summons served on Mr. Ford and declare that Ms. Iu was not required to bring the Director’s file, counsel for the officers took the position that the motion should be dismissed or in the alternative, if the motion were granted, the court should make a declaration that the affidavit of Ms. Iu was inadmissible; and in the further alternative, the court should make a declaration that the parts of Ms. Iu’s affidavit containing or relying on hearsay of Mr. Ford should be struck. Since a cross-motion had not been filed, I declined to consider either of the alternative positions advanced on behalf of the officers.

[10] In order to rule on the motion, the context is important. As indicated above, in the Notice of Application the relief sought is an order quashing the summonses to the officers. At the risk of simplifying, the officers take the position that the investigation by the Director is an abuse of process and will breach their Charter rights (to remain silent and to a fair trial) if they are required to be interviewed prior to the trial of the criminal charge. In submissions on this motion, counsel clarified that the relief sought is less than an order quashing the summonses. Counsel will ask that the officers not be required to attend for the interviews until the end of Officer Kharbar’s examination in chief at the trial in July, 2013 or until Officer Ramos’ criminal trial is concluded. I am not concerned about the modest difference between those two positions which might be rationalized before the hearing of the Application for Judicial Review. The point is that the Application seeks to defer the interview until such time as they assert that there would be no possibility of their Charter rights being infringed. It is a question of when not whether the officers will attend for an interview.

[11] Counsel for the Director takes the position that the summons to Mr. Ford should be quashed because (a) there is a statutory prohibition against investigators in the Office of the Director testifying in civil proceedings such as this Application for Judicial Review; (b) Mr. Ford’s evidence is not relevant or necessary to the Application; (c) allowing the applicants to question Mr. Ford and review the entire investigative file would be an abuse of process as it would allow the applicants access to the evidence already gathered by the Director before they are interviewed.

[12] Counsel for the Director takes the position that it would be an abuse of process to require the affiant to bring the Director’s file with her to the cross-examination because (a) there is a statutory prohibition against the disclosure of such information in a civil proceeding such as this Judicial Review Application; (b) there is no right to production or discovery in a Judicial Review Application; (c) the investigative evidence is not relevant to the narrow issue on the application; and (d) it would be an abuse of process to allow the applicants access to the investigative file before they are interviewed by the investigator in the Office of the Director.

[13] On behalf of the respondents, counsel take the position that the motion should be dismissed because (a) none of the statutory provisions relied upon by the Director prohibit the examination of Mr. Ford or the production of the investigative file for inspection; and (b) there is an evidentiary foundation for the proposed examination of Mr. Ford and that examination is neither abusive nor too broad.

Analysis:

[14] A summons may be quashed when (a) the proposed witness has no relevant or admissible evidence; (b) the proposed evidence is not necessary, or is extrinsic to the main evidence; or (c) the summons is an abuse of process, such as for an ulterior or improper or tactical purpose.[^1] The onus is on the party seeking to conduct the examination to show on a reasonable evidentiary basis that the examination would be conducted on issues relevant to the pending application and that the proposed witness is in a position to offer relevant evidence.[^2]

[15] Counsel made extensive submissions with respect to s. 26.1(9), x. 26.1(10) and s. 26.1(11) as well as s. 26.5(1) of the Police Services Act. I need not make a ruling as to the impact of those sections nor as to whether the Director has waived any of them by producing Ms. Iu in response to the Summons to Witness and allowing her to testify. This motion is resolved on the basis of relevance and necessity.

[16] Counsel for the respondents filed an affidavit in response to the motion that attached documents relevant to the examinations as well as transcripts of the evidence of Ms. Iu. Counsel also relied on the affidavit that had been filed in support of the Application for Judicial Review. That affidavit is by Joanne Mulcahy, one of Officer Kharbar’s counsel. Her affidavit is 24 pages in length and has attached to it 50 exhibits. Of those, 8 are copies of documents in the public domain that describe the creation of the Office of the Director and its governing statute and rules. The remaining 42 exhibits are copies of documents generated in this specific investigation which Mr. Black described as constituting “every piece of paper” counsel had accumulated in this matter.

[17] In submissions, Mr. Black asserted that the Divisional Court needed to have evidence about the following: how the Director had conducted its investigation and particularly that the Director had done nothing for months; what the Director had done during eight months of apparent inactivity; whether the Director had made “several” requests for interviews or whether there were only two letters to that effect; whether, in the face of those letters, the officers did not refuse to be interviewed but they sought only a deferral; the degree to which the Director could assure confidentiality of the information gleaned in the interview; what happened at the police station. Mr. Black asserted that the Divisional Court needed to “know the truth”.

[18] I am not persuaded that the evidence of Mr. Ford or the contents of the Director’s file is relevant or necessary to the hearing of this Application for Judicial Review. I agree with counsel for the Director that the broad and sweeping nature of the proposed examination and the demand for the entire file demonstrates that counsel for the applicants seek to explore evidence that exceeds the relatively narrow focus of this Application for Judicial Review. The evidence sought is extrinsic to the main issue before the court.

[19] Counsel for the Director asked that I also find that the issuance of the summons to Mr. Ford and the demand for the file from both Ms. Iu and Mr. Ford constituted an abuse of process. While the party seeking to examine a witness must establish relevance, the onus is on the moving party to establish abuse of process. That onus has not been met.

ORDER TO GO AS FOLLOWS

[20] The motion is granted. The summons to Mr. Ford is quashed. Ms. Iu is not required to bring the entire Director’s file to her examination.

[21] On consent, there will be no costs of this motion.

DATE: DECEMER 24, 2012 KITELEY J.

[^1]: Colville-Reeves v. Canadian Home Publishers Inc [2002] O.J. No. 598 (S.C.J.) [^2]: Bearden v. Lee [2005] O.J. No. 1583