CITATION: Green v. Toronto Police Service, 2016 ONSC 6433
DIVISIONAL COURT FILE NO.: 373/15 DATE: 20161117
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Molloy, Dambrot and Varpio JJ.
B E T W E E N :
MATTHEW GREEN
Applicant
– and –
TORONTO POLICE SERVICE, OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR and CHIEF OF POLICE, TORONTO POLICE SERVICE
Respondents
Alexi N. Wood and Alan N. Young, for the applicant
No one appearing for the respondent Toronto Police Service
Miriam Saksznajder, for the respondent Office of the Independent Police Review Director
Sharon Wilmot, for the respondent Chief of Police, Toronto Police Service
HEARD at Toronto: September 27, 2016
DAMBROT J.:
Background
[1] In the early hours of November 2, 2013, after leaving a party, the applicant was picked up by a taxi near the Canadian National Exhibition in Toronto. When the applicant entered the taxi, it was apparent to the taxi driver that he was intoxicated. The applicant spoke a great deal without making much sense, and repeatedly changed his mind about his destination. Ultimately, the taxi driver drove the applicant to 13 Division of the Toronto Police Service (“TPS”) to obtain police assistance in determining where he should take the applicant.
[2] Two police officers emerged from the station, approached the applicant, observed that he was loud and belligerent and appeared to be intoxicated, and told him to enter the station. When the applicant instead walked away, the police officers apprehended him for being intoxicated in a public place. While there are conflicting versions of the interaction of the police officers and the applicant, there is no question that during the following few hours he was arrested for public intoxication, subjected to a strip search, then charged with assaulting a police officer, held in custody pending a bail hearing. Ultimately, on November 4, 2013, he was released on bail.
The Complaint to the Director
[3] On April 30, 2014, the Crown withdrew the charges against the applicant on the basis that it was not in the public interest to proceed. On May 2, 2014, the applicant submitted a complaint to the Office of the Independent Police Review Director (“OIPRD”) making eleven allegations of misconduct against five police officers, including allegations that he was repeatedly assaulted by the police, denied his right to consult counsel, subjected to a violent and unlawful strip search, and that the police officers attempted to cover up their conduct. The OIPRD undertook an investigation of the complaint.
[4] On December 2, 2014, the Independent Police Review Director (the “Director”) issued a 40-page report. He found that there was evidence of misconduct within the meaning of s. 80 of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”) on the part of Staff Sergeant Chambers, specifically that Staff Sergeant Chambers caused a strip search to be conducted when there was neither justification nor legal grounds to do so. The Director concluded that all of the other allegations in the applicant’s complaint were unsubstantiated. In a letter dated December 2, 2014 (the “referral letter”) he referred the matter, together with his report, to the Chief of Police, Toronto Police Service (the “Chief”) as required by s. 68(3) of the PSA and indicated, pursuant to s. 68(4) of the PSA, that in his opinion the misconduct was not of a serious nature.
[5] In the referral letter, the Director formally advised the Chief that he was of the opinion that “the misconduct committed by Staff Sergeant Chambers was not of a serious nature.” Elsewhere in his correspondence, he referred to the misconduct as “less serious.” I would make nothing of this inconsistency between “not serious” and “less serious”. The Director was clearly aware of the statutory framework within which he operated, but used this loose language from time to time. In fact, references to “less serious complaints” can be found on the Director’s website. Referring to misconduct as “less serious” risks confusion, and should be avoided, but is of no consequence here.
[6] Amongst the findings made by the Director in his report were the following:
- The applicant had been drinking in excess.
- The applicant acted in a manner that prompted the taxi driver to take him to the police.
- The interaction between the applicant and the police led to the lawful arrest of the applicant for being intoxicated in a public place.
- The applicant was uncooperative and non-compliant during his arrest and the booking process.
- The police had residual concerns about his identity.
- The subject officer subjectively believed that the circumstances met the risk factors required for a strip search, and wanted to ensure that the applicant had nothing in his possession to harm himself or others, or to aid in an escape.
- The strip search was done in the manner prescribed by TPS policies, and the applicant was not fully naked at any time and was not asked to display himself.
[7] The Chief agreed with the Director that the misconduct was not of a serious nature in the circumstances.
[8] Characterizing possible misconduct as being “not of a serious nature” is significant. By virtue of s. 68(5), a chief of police is required to hold a hearing into a matter referred to him or her under s. 68(3) unless the chief, on reviewing the Director’s report, is of the opinion that misconduct committed by the subject officer was not of a serious nature. In that case, pursuant to s. 68(6), a chief may resolve the matter informally without a hearing if the police officer and the complainant consent to the proposed resolution.
[9] But it must be remembered that characterizing misconduct as being not of a serious nature does not preclude the imposition of a serious penalty. If consent to an informal resolution is not given, a chief may, pursuant to s. 66(10), which applies in this circumstance by virtue of s. 68(7), impose a penalty on the officer without holding a hearing if the officer accepts the penalty. If the officer does not accept the penalty, the chief must hold a hearing.
[10] In this case, the Chief proceeded to attempt to resolve the matter informally. The effort failed because the applicant would not consent to an informal resolution. The Chief then resolved the matter without a hearing pursuant to s. 66(10).
The Application
[11] The applicant seeks judicial review of the classification of the subject officer’s misconduct by the Director and the Chief as being not of a serious nature. He argues that:
- The decisions of both the Director and the Chief to classify the misconduct as being not of a serious nature were unreasonable.
- The applicant was denied procedural fairness when the Chief failed to hold a hearing pursuant to s. 68(5) of the PSA.
The Standard of Review
[12] The parties all agree that the decisions of both the Director and the Chief to classify the misconduct as being not of a serious nature are reviewable on a standard of reasonableness. Reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process, and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
[13] When considering a procedural fairness argument, a court does not engage in a standard of review analysis. Rather, it determines whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193. See London (City of) v. Ayerswood Development Corp. (2002), [167 O.A.C. 120], 34 M.P.L.R. (3d) 1 (C.A.), at para. 10.
Was the Classification of the Misconduct as Being Not of a Serious Nature Unreasonable?
[14] The applicant challenges both the Director’s and the Chief’s classification of the misconduct as being not of a serious nature. To a great extent, the arguments made by the applicant apply to both decisions. Some of the arguments do not. I will deal with the arguments that relate to the Director’s decision first, and then I will deal separately with the arguments that relate only to the Chief’s decision.
The Director’s Decision
Is It Unreasonable for the Director to Characterize a Strip Search Conducted without Justification as Misconduct Not of a Serious Nature Regardless of the Circumstances?
[15] Section 80(1) of the PSA provides that a police officer is guilty of misconduct if he or she engages in any of 11 categories of proscribed activity. The PSA does not characterize any of these categories as serious or not serious. No category of misconduct is defined as being necessarily serious. Instead the PSA contemplates that some instances of misconduct, whatever the category, will be of a serious nature, and some will not. Instances of misconduct that are not of a serious nature may be resolved informally or without a hearing if certain conditions are met; instances of misconduct of a serious nature can only be resolved by way of a hearing. The decision about seriousness is left initially to the Director, and ultimately to the chief of police of the police force to which the complaint relates. The PSA does not provide any guidance as to when a matter is or is not serious.
[16] Specifically, in respect of a matter retained by the Director for investigation, as this one was, first the Director, and, if the matter is referred to the chief of police of the police force to which the complaint relates, then that chief has the discretion to determine whether he or she is of the opinion that the matter is not serious.
[17] The applicant would have it that where a strip search is carried out in the absence of legal justification, the Director and the chief of police are limited to a single reasonable conclusion: the misconduct must be classified as misconduct of a serious nature. I cannot agree.
[18] In rejecting the applicant’s position, I do not downplay the intrusive nature of strip searches. The Supreme Court of Canada has said that strip searches, even where conducted lawfully, “represent a significant invasion of privacy” and a “serious infringement of privacy and personal dignity” (see R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 83, 99). Strip searches are highly intrusive, and can be humiliating, embarrassing and degrading for those who are subject to them (Golden, at para. 89). No one in this case suggests otherwise. However the legislation leaves the determination of the seriousness of any particular instance of misconduct, including an unjustified strip search, to the Director and the chief of police. This is not surprising given that each type of misconduct can occur in a myriad of circumstances. Even in the case of an unjustified strip search, there are a great many considerations that bear on the question of seriousness. For example: Did the officer who authorized the strip search know what the grounds for a lawful strip search are? Did he or she have a bona fide belief that the grounds were satisfied? Was the strip search conducted in conformity with the particular police force’s policies? Was the search carried out in privacy? Was the search conducted by officers of the same sex as the subject of the search? Was the search carried out with sensitivity? Was the subject of the search ever fully naked? Was the subject of the search required to display himself or herself? The list goes on.
[19] I see no basis to conclude that no matter what the circumstances may be, a strip search may not be classified as being misconduct not of a serious nature for the purposes of the PSA. In saying this, I bear in mind what the significance of classifying misconduct as being not of a serious nature actually is for the purposes of the PSA. The classification of misconduct as being not of a serious nature is not a determination that in any sense excuses misconduct. It simply provides the chief of police with the option to resolve the matter informally or without a hearing. And even when this option is available to a chief, there are significant constraints on informal resolutions and resolutions without a hearing.
[20] First, when the Director refers a complaint to a chief pursuant to s. 68(3) of the PSA, the chief may resolve the matter informally pursuant to s. 68(6), but only if he or she is of the opinion that the misconduct was not of a serious nature, and if the complainant and the subject police officer both consent. If the complainant does not consent, a chief may still resolve the matter without a hearing. However in such a case, item 2 of s. 66(10) only permits a chief to:
impose on the police officer a penalty described in clause 85 (1) (d), (e) or (f) or any combination thereof and … take any other action described in subsection 85 (7) and … cause an entry concerning the matter, the penalty imposed or action taken and the police officer’s reply to be made in his or her employment record.
[21] Subsections 85(1)(d), (e) and (f) permit the chief to suspend the subject police officer without pay for a period not exceeding 30 days or 240 hours, as the case may be; direct that the police officer forfeit not more than three days or 24 hours pay, as the case may be; and direct that the police officer forfeit not more than 20 days or 160 hours off, as the case may be. Section 85(7) permits the chief, in addition or instead, to reprimand the police officer; direct that the police officer undergo specified counseling, treatment or training; and direct that the police officer participate in a specified program or activity.
[22] The only penalties available after a hearing that a chief may not impose without holding a hearing are found in ss. 85(1)(a) to (c), pursuant to which a chief may dismiss the police officer from the police force; direct that the police officer be dismissed in seven days unless he or she resigns before that time; or demote the police officer, specifying the manner and period of the demotion.
[23] In short, if a chief of police is of the opinion that misconduct is not of a serious nature, at the most the decision takes dismissal and demotion off the table as potential punishment. The limited significance of the characterization of misconduct as not serious informs the interpretation of the term.
[24] For these reasons, I cannot accept the argument advanced by the applicant that it would be unreasonable for the Director or a chief to classify any strip search as being not of a serious nature regardless of the circumstances.
[25] But this does not exhaust the applicant’s argument about the Director’s decision. He also says that the decision was unreasonable in the circumstances of this case and that, in any event, is unreasonable because the Director’s reasons are inadequate.
Was the Director’s Decision Unreasonable in the Circumstances of This Case?
[26] Once it is recognized that the Director and the Chief have the discretion to classify an unjustified strip search as misconduct not of a serious nature, and are not limited to a single reasonable decision, it becomes necessary to review the Director’s reasons in order to consider whether or not his decision was reasonable in this case. Contrary to the position of the applicant, neither the TPS Search of Persons Policy nor the presence of the item “unlawful or unnecessary exercise of authority” in a list under the heading “Matters considered to be serious may include” on the Director’s website can limit the exercise of discretion by the Director or the Chief.
[27] In his report, the Director summarized the complaint, set out the specific Code of Conduct allegations that arose from it, and summarized the statements of witnesses interviewed by the OIPRD, the statements made by the respondent officers, and the other investigative steps undertaken by his Office. He then analyzed the evidence and made specific findings in relation to each of the allegations made in respect of each of the officers.
[28] When he came to the strip search, the Director examined the decision of the Supreme Court in Golden, the pertinent TPS procedures, and the evidence he had gathered directly relating to the strip search.
[29] In the final eight pages of the report, the Director set out and explained his conclusions. With respect to the strip search, he returned to Golden, and concluded that none of the considerations in Golden that could justify a strip search were present. He then concluded:
Therefore, upon review and analysis of all available information, the Director has determined that Reasonable Grounds exist that misconduct did occur. As a result, with respect to this allegation, the conclusion is: Substantiated as less serious.
[30] When this conclusion is read with the summary of evidence, findings of fact, and analysis that precedes it, the reason that the Director concluded both that reasonable grounds existed that misconduct occurred and that the misconduct was not serious is clear. It is apparent from a review of the report that the considerations he took into account included the following, which are found either in the Director’s specific findings, or in the uncontested evidence:
- the subject officer subjectively believed that the circumstances met the risk factors required for a strip search, and wanted to ensure that the applicant had nothing in his possession to harm himself or others, or to aid in an escape;
- the strip search was done in the manner prescribed by TPS policies;
- the search was conducted in a private secure area of the police station not covered by surveillance cameras;
- only three male police officers were present during the search;
- the applicant was asked to remove his clothing one item at a time;
- the officers required the applicant to pull his shorts down only briefly, and he was then allowed to pull them back up;
- the applicant was not fully naked at any time and was not asked to display himself; and
- no police officer touched the applicant during the search.
[31] In addition, it is worth noting that less than 15 minutes after the strip search, the applicant was arrested and charged with assaulting a police officer in connection with the events outside the police station and held in custody pending a bail hearing. This arrest would have come as no surprise to Staff Sergeant Chambers. At that point in time, a strip search would have been inevitable, and would have been justified on the basis that the applicant was going to be entering the prison population (Golden, at paras. 96-97). I do not suggest that this consideration can provide a post facto justification for the strip search. But it may have an impact on the seriousness of the misconduct.
[32] Having regard to all of the circumstances, it seems to me to have been entirely reasonable for the Director to form the opinion that the misconduct was not of a serious nature, with the consequence that the possibility of dismissal and demotion might be off the table. The decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law.
Was the Director’s Decision Unreasonable Because His Reasons Were Inadequate?
[33] The applicant also argues that the decision to characterize the misconduct as not serious is unreasonable because the Director did not explain why he was exercising his discretion in this manner. I do not agree. In my view, upon a fair reading of the Director’s report as a whole, the explanation is apparent. His findings of fact place this strip search at the less serious end of the continuum of strip searches. There is really nothing more that could be said by way of explanation. In my view, the requirements of justification, transparency and intelligibility are met.
[34] Even if, contrary to my view of the matter, the reasons do not seem wholly adequate to support the decision, it is nonetheless a reasonable decision. I say this having regard to the approach to the sufficiency of reasons endorsed by the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 12, where Abella J. stated, for the Court:
It is important to emphasize the Court’s endorsement [in Dunsmuir] of Professor Dyzenhaus’s observation that the notion of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”. In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows:
“Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc., then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis added.]
(David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304)
[35] Respectful attention to the reasons offered or which could be offered in support of the Director’s decision easily supports that decision. I would not give effect to this ground of attack on the reasonableness of the decision.
The Chief’s Decision
[36] My conclusion that the decision of the Director was reasonable largely disposes of the challenges to the reasonableness of the Chief’s decision. But there are two grounds of challenge that relate only to the Chief. The applicant argues that the Chief’s decision is unreasonable because he did not give reasons for concluding that the misconduct was not of a serious nature, and because he did not notify the applicant of the outcome of his complaint. I will consider these arguments now.
Was the Chief’s Decision Unreasonable Because He Did Not Give Reasons?
[37] In my view, having regard to the scheme in the PSA for dealing with complaints, there would be no purpose for a chief to give reasons for forming the opinion that misconduct is not of a serious nature if the Director has already reached that conclusion, and the failure to do so does not make a chief’s decision unreasonable. To understand my view of the matter, it is necessary once again to examine the scheme of the PSA.
[38] I begin by noting once again that s. 68(1) requires the Director to investigate and report on in a written report every complaint against a police officer retained by him or her for investigation. If the Director concludes that the conduct complained of constitutes misconduct, s. 68(3) requires the Director to refer the matter, together with the Director’s report, to the appropriate chief of police. Where the Director is of the opinion that the misconduct is not of a serious nature, s. 68(4) requires him to “so indicate” in referring the matter to the chief of police. Finally, s. 68(6) provides that if, on the review of the written report, the chief is of the opinion that there was misconduct that was not of a serious nature, he may resolve the matter informally without holding a hearing.
[39] Interestingly, an indication by the Director that in his opinion misconduct referred to a chief is not of a serious nature has no legal consequence under the PSA. Absolutely nothing flows from it. Consequences flow only when the chief is of that opinion. As a result, the purpose for requiring the Director to record his opinion about seriousness can only be to assist the chief in arriving at his opinion. This conclusion is fortified by the fact that the chief is required to arrive at his opinion on the issue solely upon his “review of the written report.”
[40] If the Director’s opinion is solely intended to assist a chief of police in arriving at his or her opinion, and if a chief is expected to arrive at his or her opinion solely on the basis of the report, then there is no reason for a chief to give his or her own reasons. A chief will simply accept or not accept the Director’s opinion. If a chief accepts the advice of the Director, then the Director’s reasons become the chief’s reasons. If the Director’s opinion is reasonable, then so is the chief’s opinion. Nothing more is required of the chief.
Was the Chief’s Decision Unreasonable Because He Did Not Notify the Applicant of the Outcome of the Complaint?
[41] The OIPRD was established in 2009 in response to a report prepared by the Honourable Patrick J. LeSage, Q.C. (Report On The Police Complaints System In Ontario (Toronto, 2005)) that recommended a more transparent and accessible police complaints system. In a transparent complaint system, a complainant must be entitled to know how his or her complaint was resolved. Whether or not a failure to notify the complainant of the outcome of the complaint can affect the reasonableness of the decision of a chief to characterize misconduct as not being of a serious nature is an interesting question, but not one that falls to be determined in this case.
[42] In this case, the Chief initially refused to disclose the outcome of the complaint because he believed that he was precluded from doing so by the confidentiality provision in s. 95 of the PSA. Ultimately, he secured the consent of Staff Sergeant Chambers to make the requested disclosure, and did so. As a result, this argument cannot succeed. The decision of the Chief cannot be unreasonable on this basis.
Was the Applicant Denied Procedural Fairness Because the Chief Failed to Hold a Hearing Pursuant to s. 68(5) of the PSA?
[43] Having reached the opinion that the misconduct was not of a serious nature, the Chief was not obliged to hold a hearing pursuant to s. 68(5), and was entitled to pursue an informal resolution. Since I have found that his determination of seriousness was reasonable, there can be no argument that the failure to hold a hearing denied the applicant procedural fairness. I would not give effect to this argument.
Disposition
[44] For all of these reasons, the application is dismissed. No costs were sought in this case, and none are awarded.
___________________________ DAMBROT J.
I agree.
___________________________ MOLLOY J.
I agree.
___________________________ VARPIO J.
RELEASED:
CITATION: Green v. Toronto Police Service, 2016 ONSC 6433
DIVISIONAL COURT FILE NO.: 373/15 DATE: 20161117
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
MATTHEW GREEN
Applicant
– and –
TORONTO POLICE SERVICE, OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR and CHIEF OF POLICE, TORONTO POLICE SERVICE
Respondents
REASONS FOR DECISION
DAMBROT J.
RELEASED: November 17, 2016