CITATION: Office of the Independent Police Review Director v. Regional Municipality of Niagara Police Services Board, 2016 ONSC 5280
DIVISIONAL COURT FILE NO.: 346/15
DATE: 2016-10-26
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Dambrot, Stewart and Parayeski JJ.
BETWEEN:
OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR Applicant
– and –
BRYAN CLARK Applicant
– and –
REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD, GEORGE PARPERIDES and PAUL ROGERS Respondents
COUNSEL: Mark Sandler and Amanda Ross, for the Applicant Margaret A. Hoy, for Bryan Clark Woodward McKaig, for the Respondent, Regional Municipality of Niagara Police Services Board Harry G. Black, Q.C., for the Respondents, George Parperides and Paul Rogers
HEARD at Toronto: May 30, 2016
Stewart J.:
Nature of the Application
[1] This is an application by the Office of the Independent Police Review Director (the "Director") and Bryan Clark for judicial review of the decision dated February 29, 2015 of the Regional Municipality of Niagara Police Services Board (the "Board").
[2] Clark brought a motion seeking leave to be added as an Applicant on this application. Leave was so granted at the outset of the hearing.
[3] In its decision, the Board declined to extend the time for service of a Notice of Disciplinary Hearing on the Respondent police officers George Parperides and Paul Rogers, beyond the six-month period for notice imposed by s. 83(17) of the Police Services Act, R.S.O. 1990, c. P.15 (the "Act"), as requested by the Niagara Chief of Police (the "Chief").
[4] The Applicants seek an order quashing the Board's decision and requiring the Board to permit the Notice of Disciplinary Hearing to be served on Parperides and Rogers or an order that the Board must reconsider its decision.
[5] The Board takes no position on the application.
[6] Parperides and Rogers argue that the decision of the Board should be neither quashed nor reconsidered, but should stand.
Jurisdiction
[7] Pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, this court has jurisdiction to grant any relief that an applicant would be entitled to in proceedings by way of application for an order in the nature of mandamus, prohibition, or certiorari, or in proceedings by way of an action for a declaration, injunction, or both, in relation to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power.
[8] Accordingly, it is not disputed by any of the parties that the decision of the Board made pursuant to its statutory power conferred by the Act is one which may properly be the subject of judicial review.
Standard of Review
[9] Parperides and Rogers submit that the standard of review of the Board's decision is reasonableness. The Applicants concede that reasonableness is the appropriate standard for reviewing the Board's substantive decision.
[10] We agree that reasonableness is the proper standard of review for a decision of this nature. As was said by the Divisional Court in Forestall v. Toronto Police Services Board (2007), 2007 31785 (ON SCDC), 72 Admin. L.R. (4th) 299) (at para. 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.
[11] However, when considering issues of procedural fairness and natural justice, a court may consider whether the required elements of procedural fairness and natural justice in the particular circumstances have been met (see: Forestall, supra, para. 38).
Facts
[12] On December 27, 2013, Clark was arrested in Port Colborne, Ontario in connection with the breaking and entering of a building and the theft of copper wire. Constables Kroon and McLeod of the Niagara Police apprehended Clark after a chase and used force to detain him.
[13] Parperides received custody of Clark from Kroon and McLeod and made the formal arrest of Clark. While in the police vehicle, Clark told Parperides that his jaw was painful and broken. Parperides did not believe Clark and did not obtain medical assistance for him. Parperides proceeded to transport Clark to the 3 District police station where Rogers was the officer in charge.
[14] During his booking while in the presence of Rogers, Clark again stated that he thought his jaw was broken. He repeated his complaint of pain in his jaw to Rogers while being photographed. No steps were taken by Rogers to obtain medical assessment or treatment of Clark's reported injury.
[15] Following Clark's transfer to the Niagara Regional Detention Centre, custodial personnel at that facility refused to accept him as a prisoner because of what they considered to be the apparent severity of his injuries. Instead, Clark was taken to a local hospital and was diagnosed as having a broken jaw.
[16] Following treatment at the hospital, Clark was returned to the Niagara Regional Detention Centre. Clark then suffered a seizure caused by a brain injury not diagnosed at the hospital.
[17] On February 6, 2014, Clark filed a complaint with the Director. Clark alleged that Kroon and McLeod used excessive force in apprehending him which caused his injuries. Clark also alleged that Parperides and Rogers neglected their duty by failing to follow Niagara Regional Police procedure for dealing with injured persons under arrest by failing to provide him with prompt medical assessment and attention after having been informed of an injury.
[18] On March 3, 2015, pursuant to s. 61(5)(c) of the Act, the Director retained the complaint and assigned it to an investigator on that same day.
[19] No interviews of any of the officers involved were conducted until after the Special Investigations Unit had completed its investigation.
[20] As part of the Director's investigation, a pathologist was consulted to provide an opinion as to the nature and causes of Clark's injuries.
[21] On November 10, 2014, the Director issued his Investigative Report with respect to Clark's complaint. The Investigative Report concluded that the allegations of excessive force against Constables Kroon and McLeod could not be substantiated such that a hearing would be warranted.
[22] With respect to Clark's complaint that Parperides and Rogers acted in neglect of duty in failing to take steps to provide prompt and appropriate medical care to Clark after having been advised by him of a serious injury, the Director's Investigative Report concluded as follows:
Constable Parperides
Constable Parperides admitted that the Complainant reported to him that he had a broken jaw and later recorded this in a late entry in his notebook after being notified of the Complainant's injuries. Constable Parperides failed to follow Niagara Regional Police orders – 018.15 section 2.16, section 3.206 and section 3.1c.
Therefore, upon review and analysis of all available information, the Director has determined that there is sufficient evidence to establish that misconduct occurred in this complaint against Constable Parperides. As a result, with respect to this allegation, the conclusion is: substantiated.
Staff Sergeant Rogers
Staff Sergeant Rogers failed to follow Niagara Regional Police orders – 018.15 section 2.16, section 3.206 and 3.207. It is incumbent upon the Officer in Charge to make an appropriate assessment of the Complainant's injuries. Even though the Complainant reported a broken jaw twice to Staff Sergeant Rogers he failed to follow Niagara Regional Police orders by providing appropriate medical care.
Therefore, upon review and analysis of all available information, the Director has determined that there is sufficient evidence to establish that misconduct occurred in this complaint against Staff Sergeant Rogers. As a result, with respect to this allegation, the conclusion is: substantiated.
[23] On November 19, 2014, pursuant to s. 68(3) of the Act, the Director provided the Investigative Report to the Chief with a recommendation that disciplinary proceedings be commenced against Parperides and Rogers.
[24] As a result of this recommendation, the Chief initiated a hearing as required by s. 68(5) of the Act. The Act provides that an officer who is the subject of a hearing is to be given notice within six months of the date when the complaint is retained. Because more than six months had passed, approval from the Board to permit the provision of notice outside the six-month period was sought.
[25] In that regard, section 83(17) of the Act provides as follows:
If six months have elapsed since the day [the complaint was retained by the Director under clause 61(5) (c)], 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.
[26] Accordingly, the Chief made an application to the Board under s. 83(17) to allow notice of the hearing to be served upon Parperides and Rogers. Material in support of the application included the Chief's Report dated December 18, 2014 in which the Chief had recommended that the application for an extension of time be requested and approved.
[27] The Chief's Report also contained submissions from the Director describing the nature and extent of the investigation of Clark's complaints and an explanation of the delay in issuing the Investigative Report.
[28] Two main factors were identified by the Director as having contributed to the delay. First, an investigation of the entire incident involving all officers who were the subject of complaint by the Special Investigations Unit had resulted in a four-month delay before the officers and witnesses would consent to be interviewed by the investigator. Secondly, a further four-month delay had occurred before the pathologist consulted on behalf of the investigation was able to provide an opinion as to the nature and causation of Clark's injuries.
[29] These factors were elaborated upon and supplemented in the Chief's Report, as follows:
The SIU investigated the incident because of the nature of the complainant's injuries. Initially, the NRPS refused to release its records to the OIPRD because of the outstanding SIU investigation. The OIPRD finally received some of the requested records, approximately a month after the initial request.
More significantly, the respondent officers and some of the witness officers refused to be interviewed by the OIPRD while the SIU investigation was on going. The OIPRD made a number of attempts to schedule interviews with both groups of officers. Those officers refused to agree to a date for the interviews until the SIU had released its decision not to charge any officer. By way of letter dated July 18, 2014, the SIU informed the NRPS Chief that its investigation of the circumstances surrounding the injuries to Mr. Clark was concluded and that there were no grounds to believe that either Constable MacLeod or Constable Kroon had committed a criminal offence. As a result, it was only approximately four months after retaining the investigation that the OIPRD was finally able to secure dates for officers' interviews.
After reviewing a significant volume of medical records and reports, the OIPRD decided to retain the services of a respected Pathologist, in an attempt to determine the cause of the complainant's injuries (i.e. whether they were more likely to have been sustained in a motor vehicle accident or in the complainant's interaction with police). The OIPRD retained Dr. Chitra Rao on June 18, 2014 but did not receive her report until four months later. The report resulted in a finding that there was insufficient evidence to believe, on reasonable grounds, that the allegations of excessive force were substantiated against two officers. It should be noted that the Director released his decision approximately a month after received Dr. Rao's report.
In total, the OIPRD obtained evidence from 13 witnesses and reviewed hundreds of pages of medical records and numerous other exhibits.
During the course of the investigation, the OIPRD investigator was assigned as the lead investigator on approximately eight active investigations, as well as assisting on approximately 10 investigations.
[30] The Chief submitted to the Board that as a result of these several factors the extension requested should be granted.
[31] Although the Board was to consider the application at its meeting on January 29, 2015, the Board deferred the matter to February 26, 2015 in order to provide Parperides and Rogers with more time to prepare a response.
[32] On February 20, 2015, Parperides and Rogers forwarded their response in writing to the Chief's Report.
[33] Parperides' and Rogers' submissions to the Board included the following:
(a) a detailed outline of their position on the lack of merit of the allegation of misconduct against them and a detailed refutation of the Director's statements as to the facts as reproduced in the Chief's Report;
(b) submissions that the Director's assertions or submissions were factually inaccurate, incomplete, give short shrift to the way in which Constable Parperides had assessed the matter at the time and failed to consider the deployment implications of sending two officers to the hospital with Clark;
(c) submissions entitled "Second Guessing Not Permissible", in which it was alleged that the Director engaged in "a classic case of Monday morning quarterback," "looking at everything on an after the fact basis and seeking on that basis to impugn the judgment made in good faith and with limited information…"; and
(d) an assertion that the Director had all of the information needed once the interviews of Parperides and Rogers on June 18, 2014 had been conducted to decide whether to proceed against them and an assertion that nothing obtained after that, including Dr. Rao's opinion as to whether the injuries were consistent or not with a baton strike, was relevant to whether the judgment calls made by Parperides and Rogers warranted disciplinary proceedings.
[34] A copy of the submissions of Parperides and Rogers was not provided to the Director or to Clark, nor were they given an opportunity to respond.
[35] Prior to its February 26, 2015 meeting, the Board had requested that the Chief and counsel for Parperides and Rogers attend the meeting. The Board did not request that either the Director or Clark attend the Board meeting or make submissions to it.
[36] At its meeting on February 26, 2015, the Board considered the Chief's application for an extension. Oral submissions from the Chief and further submissions from counsel for Parperides and Rogers were heard.
[37] Following this hearing, by letter dated February 27, 2015 the Board notified the Chief that the application for an extension had been denied.
[38] The following reasons were provided for this decision:
In this case, the Board does not believe it is appropriate to accede to your request. From your report, it is apparent that these officers were interviewed on June 18, 2014, some 10 weeks before the expiry of the 6 month period referenced in the Act.
It does not appear that the balance of the investigative steps dealt in any material way with the Neglect of Duty allegations against these officers. Rather, the investigation appeared to focus on the other officers who were the subject of the assault investigation.
Based on the above, and based on the factual circumstances explained in your report and that of Mr. Black, the Board declines your request.
[39] The Applicants now seek judicial review of the Board's decision.
Issues:
A. Does the Director have standing to join in this application for judicial review?
B. Did the Board breach the rules of natural justice or deny procedural fairness to the Applicants?
C. Was the Board's decision reasonable?
Issue A: Does the Director have standing to join in this application for judicial review?
[40] At the outset of the hearing, Parperides and Rogers challenged the standing of the Director to bring this application. We concluded that the Director did have standing. We stated in a brief endorsement: "We are of the view that the Director does have standing. He is directly affected by the procedural decision that is the subject of this application. See sections 61(7) and 72(1) (a) of the Police Services Act, which give the Director an ongoing role in procedural aspects of a complaint after a referral to a Chief of Police." We propose now to elaborate on our decision.
[41] If there is no specific statutory right to standing, at common law any person who is a party before a tribunal or is directly affected by a tribunal's decision may apply for judicial review and has a right to be served with notice of an application brought by another party (see: Appleton v. Eastern Provincial Airways Ltd., [1983] F.C.J. No. 906 (F.C.A.)).
[42] The parties agreed that Clark was directly affected by the Board's decision and had standing to seek judicial review of it.
[43] In support of their challenge to the standing of the Director to join in seeking judicial review in these circumstances, Parperides and Rogers argued that the Director was neither a party to the application to the Board by the Chief pursuant to section 83(17) of the Act, nor would the Director be a party to any hearing that might subsequently have taken place.
[44] It was pointed out by Parperides and Rogers that the Director functions as a neutral agency. The Director cannot be seen as being aligned with either the complainant or the officer (see: Figueiras v. York (Regional Municipality) Police Services Board, 2013 ONSC 7419, [2013] O.J. No. 5911 (Div. Ct.)).
[45] In our view, however, the Director's duties and functions have a distinct public interest character. Although the Director receives and investigates complaints made by members of the public and is to do so independently, it must operate in the public interest to ensure such complaints are properly investigated and processed. The public accountability of the conduct of the police depends on the Director's powers to do so. Moreover, and consistent with the unique public character of the Director's duties and functions, when the Director refers a complaint to a chief of police, sections 61(7) and 72(1)(a) of the Act reserve to the Director the authority to direct the chief of police to deal with the complaint as the Director specifies.
[46] More specifically in this case, the Board's decision is based upon its apprehension of the way Clark's complaints were handled by the Director. It is implicit in the Board's decision that any lapsed or expired statutory time limits are due to the delay or fault of the Director and/or the Director's approach taken to considering all of Clark's complaints against all the officers involved before providing a final Investigative Report.
[47] Insofar as the Board's decision may amount to a criticism of the Director or a policy directive as to how the Director ought to handle complaints involving several officers and multiple individual allegations against them, and in light of the Director's role to act in the public interest, we are of the view that such decision has a direct impact upon the Director such that the Director is sufficiently affected by it to be entitled to be granted standing on this application for judicial review.
[48] Accordingly, we find that the Director has standing to seek judicial review of the decision of the Board in this case.
Issue B: Did the Board breach the rules of natural justice or deny procedural fairness to the Applicants?
[49] It is apparent that the submissions tendered on behalf of Parperides and Rogers squarely engaged both the involvement of Clark and the investigation of his complaints by the Director.
[50] As reflected in its brief reasons, the Board based its refusal to grant the s.83 (17) application for an extension of time largely upon its determination that the balance of the investigative steps taken after Parperides and Rogers were interviewed on June 18, 2014 did not deal with the allegations against them but, rather, focused on the other officers who were the subject of the investigation of complaints of use of excessive force.
[51] This conclusion was driven by submissions of Parperides and Rogers to the same effect, including their contention that much of the delay that followed their interviews involved waiting for the report of the pathologist, Dr. Rao whose expert opinion was also characterized as irrelevant to the complaints against Parperides and Rogers.
[52] The Director submits that it was procedurally unfair and contrary to the rules of natural justice for the Board to deny it an opportunity to make submissions in reply to Parperides and Rogers, as the facts explaining the delay were uniquely within the Director's knowledge. The Director would have addressed contentious points such as the lack of relevance of those submissions on the merits, the relevance of Dr. Rao's report to the case, and the conventional practice of and general public interest in awaiting completion of the SIU and overall investigation before deciding whether a hearing ought to be held.
[53] Likewise, Clark argues that he was denied procedural fairness and natural justice by not receiving the submissions provided to the Board by Parperides and Rogers. This failure deprived him of any meaningful opportunity to decide if he should seek to make any additional written submissions to the Board or attend the hearing. Natural justice and procedural fairness would require that both Clark and Parperides and Rogers be afforded the equivalent opportunity to be heard.
[54] Parperides and Rogers submit that there is no duty of procedural fairness owed to the Director, as it is a neutral body for which the Act does not contemplate a role before the Board. Holding a hearing is within the sole purview of the Chief. Under s. 83(3) of the Act, the only parties to a hearing are the prosecutor, officers involved, and the complainant. The Director's role is limited to that of an investigator. They argue that whether the Director received the Respondents' submissions is therefore irrelevant.
[55] Parperides and Rogers point out that Clark had notice of the Board's meeting, was given a copy of the Chief's submissions, and was informed that he had a right to make submissions. Despite that, Clark chose not to participate.
[56] We note that the facts that explained the delay were uniquely within the knowledge of the Director. The Director directed the Chief to provide the Board with his submissions in their entirety. The Respondents' submissions were not provided to the Director. The Director would have been entitled, had he been provided with the Respondents' submissions and the date of the hearing, to respond to those submissions, most of which had not been anticipated in the Director's initial submissions. The Director could have done so through submissions made directly to the Board, in writing or orally, or by directing the Chief to make those submissions to the Board.
[57] In particular, had the Director been provided with an opportunity to do so, he would have addressed the points made by Parperides and Rogers, including:
(a) the lack of relevance of the submission of Parperides and Rogers on the merits of the discipline case, their failure to address all of the facts contained in the Investigative Report, as well as the related issue of deficiencies in recording and reporting the relevant events;
(b) the relevance of the pathologist Dr. Rao's report to the entire case;
(c) the public interest in awaiting the completion of the investigation into Clark's complaints before referring any disciplinary matter to the Chief; and
(d) the decision to await completion of the investigation into Clark's complaint accorded with the Director's conventional practice in such circumstances.
[58] In our view, there is no distinction between the procedural rights that should be available to Parperides and Rogers and Clark on the one hand and the Director on the other. Natural justice and procedural fairness require that Clark and the Director be afforded the same opportunities as Parperides and Rogers to receive the submissions of the involved parties, and to make submissions to the Board. They were deprived of the meaningful opportunity to do so.
[59] As a result, the Board's failure to provide a copy of the submissions on behalf of Parperides and Rogers to the Applicants and to afford them an opportunity to respond to them was procedurally unfair in the circumstances and a denial of natural justice to them.
[60] For this reason, the decision of the Board ought to be set aside.
Issue C: Was the Board's decision reasonable?
[61] Despite our decision as stated in paragraph 59, we also consider it appropriate to provide our view as to the reasonableness of the Board's decision, expressed below.
[62] Parperides and Rogers argue that the decision of the Board is within the range of reasonable outcomes and should not be disturbed. They correctly point out the standard of review to be applied, and the significant deference to be shown by a court to a decision of this nature.
[63] The Applicants submit that it was unreasonable for the Board to find that the requirements of completing the investigation after Parperides and Rogers had been interviewed were irrelevant to the Board's determination. Clark's complaints arising out of his involvement with all four officers were intertwined. Findings with regard to Kroon and McLeod could affect the conclusions of and actions taken by the Director in respect of Parperides and Rogers.
[64] The Applicants argue that the Board's conclusion that the Director was obligated to refer the case of Parperides and Rogers to the Chief before the investigation of Clark's complaint was completed is unreasonable.
[65] Clark's complaint alleged misconduct against four officers all arising from the events on December 27, 2013. Following the alleged assault by McLeod and Kroon, Clark was transferred directly by McLeod and Kroon into the custody of the Respondent Parperides for transport to the police station. Clark immediately advised Parperides that he thought his jaw was broken as a result of the interaction with Kroon and McLeod. While being booked upon his arrival at the station, Clark advised the booking officer in the presence of Rogers that he believed that his jaw was broken. Clark's involvement with all four officers was chronologically and factually intertwined.
[66] If Dr. Rao had concluded that Clark's injuries provided independent support for his allegation of assault, all four officers might well have been referred for disciplinary action and their cases would have been heard together. The inability of the Director to substantiate the allegation against Kroon and McLeod was partly dependent on Clark's credibility and reliability. This was relevant, although ultimately not determinative, to whether Clark's allegations against Parperides and Rogers could be substantiated.
[67] The Board's conclusion that the Director was obligated to refer the matter of Parperides and Rogers for disciplinary action before the investigation was completed further is undermined by the decision in Forestall.
[68] Forestall involved a lengthy Toronto Police Services investigation into allegations of criminal behaviour and professional misconduct that resulted in criminal charges being laid against five police officers. Four other officers were not charged criminally, but named as unindicated co-conspirators, and two more officers became anticipated Crown witnesses. However, disciplinary action was pursued against all 11 officers. Approximately six to 11 years after the alleged misconduct occurred, the Chief of Police sought, and the Toronto Police Services Board granted an application to permit service of the notice of hearing on the officers. The 11 officers affected sought judicial review of the Board decision.
[69] In concluding that the Board's decision to grant the application was reasonable, the Court rejected the argument that the Board ought to have differentiated between the differently situated officers, stating:
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.
[70] In this case, the Board considered that the Director was not entitled to delay the referral of the matter of Parperides and Rogers for discipline until his investigation into Clark's entire complaint had been completed. In our opinion, this was unreasonable.
[71] In addition, several months of delay was occasioned by the refusal by Parperides and Rogers to be interviewed by the Director until the SIU investigation was over. The delay between the Director's direction to the Chief to bring a s.83 (17) application and the hearing by the Board also included a delay due to the rescheduling of the hearing to provide additional time to Parperides and Rogers to file submissions. These other causes of delay were not addressed by the Board in its brief reasons for decision.
[72] The Board failed to consider the causes of the delay as a whole and in light of all of the circumstances. Focusing selectively on the delay between the interviews and the direction to the Chief is, in all of the circumstances, an unreasonably narrow approach to take. It is one that is unduly mechanistic and disregards the public interest in ensuring police accountability in appropriate cases.
Conclusion
[73] For these reasons, the decision of the Board is quashed. The application of the Chief to the Board is remitted to the Board for re-consideration following the required receipt and review of submissions from both Applicants and in light of these reasons.
Costs
[74] We have been advised that no costs are being sought by any party and therefore make no order as to costs.
Dambrot J.
Stewart J.
Parayeski J.
Released: October 26, 2016
CITATION: Office of the Independent Police Review Director v. Regional Municipality of Niagara Police Services Board, 2016 ONSC 5280 DIVISIONAL COURT FILE NO.: 346/15 DATE: 2016-10-26
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR Applicant
– and –
REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD, GEORGE PARPERIDES and PAUL ROGERS Respondent
– and –
BRYAN CLARK
REASONS FOR DECISION
Stewart J.
Released: October 26, 2016