CITATION: Liu v. London Police Service, 2024 ONSC 5266
DIVISIONAL COURT FILE NO.: DC-24-251 JR
DATE: 2024-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BACKHOUSE, D.L. CORBETT, STOTHART, JJ.
BETWEEN:
Yanming Liu
Yanming Liu, appearing on his own behalf
Applicant
– and –
London Police Service and
Amanda Shaw, for London Police Service
Law Enforcement Complaints Agency
Morvarid Shojaei / Sandra Jakobowska,
for LECA
Respondents
HEARD at Toronto by Zoom:
September 19, 2024
DECISION ON JUDICIAL REVIEW
[1] The applicant seeks judicial review of the decision of the Chief of Police of the London Police Service (LPS), and the unreported decision of the Director of the Law Enforcement Complaints Agency (LECA), formerly known as the Office of the Independent Police Review Director (OIPRD), confirming the Chief’s decision.
[2] The hearing before this panel proceeded with the assistance of a Cantonese interpreter.
Overview
The family proceedings
[3] The applicant has been involved in lengthy and protracted family proceedings with his former partner.
[4] On April 25, 2016, Grace J. made a final consent order for custody of the parties’ two children, with primary residence with the mother. Both parties lived in London at the time.
[5] In July 2020, the mother moved to a small community about an hour from London. On July 5, 2020, she provided the applicant with her new address.
[6] The applicant brought a motion in family court to find the mother in contempt of the final order for moving to another residence with the children. On March 21, 2023, P. Henderson J. dismissed the contempt motion, noting that the final order did not address relocation of the children.
[7] The applicant sought to appeal Henderson J.’s order. In the course of that process the applicant’s former partner complained to the police that the applicant’s e-mails were harassing her. The police met with the applicant in August 2023, and told him that his former partner considered the e-mails harassing and that she wanted any further materials served via a third party.
The Applicant’s interaction at the London Police Headquarters on September 7, 2023
[8] On September 7, 2023, the applicant attended at the London Police Service Headquarters and met with the desk officer, Constable Marchand. The applicant complained that his children were missing and had been abducted by their mother. The applicant provided the officer with a number of materials related to the ongoing family proceedings and demanded that the police charge the children’s mother with abducting the children. The applicant claimed that the mother had moved and he did not know where the children were.
[9] After speaking with the applicant, reviewing the materials provided, and checking the internal police database regarding previous incidents involving the applicant and his former partner, the officer advised the applicant that in his view the children were not missing and had not been abducted. Rather, the children were living with their mother and did not want to see the applicant. The officer told the applicant that the police had no lawful reason or authority to remove the children from their mother’s custody, or report them missing, and that his allegations were civil rather than criminal in nature.
[10] The applicant did not agree with the officer’s assessment and continued to insist that a missing persons’ report be filed, and a criminal investigation commenced. After approximately 20 minutes, the officer directed the applicant to leave the police station, using a raised voice.
The initial complaint to the OIPRD
[11] On September 7, 2023, the applicant filed a complaint with the OIPRD about the actions of the officer, complaining about the way he was treated and the failure of the officer to conduct an investigation into the abduction of his children.
[12] On October 12, 2023, the OIPRD directed the Chief of Police for the London Police Service to conduct an investigation into the complaint pursuant to s.72(1) of the Police Services Act, R.S.O. 1990, Chapter P.15. The investigation was assigned to an Acting Sergeant with the Professional Standards Unit, Sgt. McConnell.
[13] After interviewing the applicant, the officer involved, another officer who was present during the interaction at the police station, reviewing the video footage from the police station, and reviewing materials related to the family proceedings, Sgt. McConnell prepared an Investigative Report detailing her findings. It was her conclusion that the applicant’s allegations of misconduct were unsubstantiated.
[14] On January 24, 2024, the Chief of Police wrote to the applicant advising that he had concluded that there were no reasonable grounds to believe that misconduct had occurred and that he had dismissed the complaint as unsubstantiated.
Request for OIPRD review
[15] On March 9, 2024, the applicant requested that the Director of the OIPRD conduct a review of the Chief’s decision, pursuant to s. 71 of the Police Services Act.
OIPRD becomes LECA
[16] On April 1, 2024, the Police Services Act was repealed and replaced with the Community Safety and Policing Act, S.O. 2019, c.1, Sched. 1. The Community Safety and Policing Act created the Law Enforcement Complaints Agency (LECA) which replaced the former OIPRD. LECA is an arms-length agency of the Ontario Ministry of the Attorney General that is tasked with investigation of public complaints about the conduct of police officers in Ontario.
Complaints Director’s decision
[17] On April 17, 2024, the Complaints Director with LECA wrote to the applicant setting out his decision confirming the decision of the Chief of Police that the allegations of misconduct were unsubstantiated. In his decision, the Complaints Director advised that, given the request for review had been made prior to April 1, the Director had conducted the review pursuant to s. 71 of the Police Services Act.
The position of the applicant
[18] The applicant submits that the actions of the London Police Service and the OIPRD were unreasonable. He submits that their actions were not transparent and open. He objects to the way they conducted their investigation and submits that his former partner is committing a crime by withholding his children from him.
[19] During the hearing of this application, we made it clear that the only issue before us was the reasonableness of LECA’s decision to confirm the Chief of Police’s conclusion that there were no grounds to support a finding that Cst. Marchand had acted in a manner that amounted to police misconduct.
[20] The applicant’s ongoing family proceedings are not before us as part of this this application.
The Divisional Court’s Jurisdiction
[21] This court has jurisdiction over this application pursuant to ss.2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1.
Standard of Review
[22] The decision of the OIPRD (LECA) is reviewable on a standard of reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 2019 S.C.C. 65, [2019] 4 S.C.R. 653.
[23] An application for judicial review is not a re-hearing of the underlying complaint. It is a review of the decision below, through the lens of reasonableness based on the record below: Rossi v. OIPRD, 2024 ONSC 1310 at para. 6.
[24] In considering the reasonableness of a decision, a reviewing court examines whether the reasons provided by the decision maker establish an intelligible justification for the decision in a transparent manner: Vavilov, at para. 99.
[25] A reviewing court will consider whether the decision maker’s reasoning process is internally rational and whether the decision is unreasonable because it is “untenable in light of the relevant factual and legal constraints that bear on it”: Vavilov, at para. 101.
Was the Complaints Director’s decision reasonable?
[26] The decision of the Complaints Director sets out in detail the background of the case and allegations; the standard of review to be applied; a summary of the professional standards investigation; and the Chief’s findings. It then goes on to explain in its analysis why the Chief’s findings were reasonable and supported by the evidence.
[27] In its decision, the Complaints Director noted that the law is settled that police officers are entitled to use their discretion in the course of their duties. This exercise of discretion extends to their investigations and their decisions regarding the arrest of suspects and/or the laying of charges. Provided they act in good faith and within the bounds of reasonableness, an officer’s legitimate exercise of discretion cannot be considered misconduct: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para. 73.
[28] After reviewing the results of the investigation, the Complaints Director concluded that it was reasonable for the Chief to conclude that there was insufficient evidence to establish reasonable grounds that Cst. Marchand breached the misconduct provisions of the Police Services Act.
[29] In reaching his conclusion, the Complaints Director found that the investigation was comprehensive and sufficiently detailed; the allegations of misconduct were correctly identified and investigated; the investigator’s findings were consistent with the available evidence; and that she had clearly laid out her reasoning path in support of her conclusions.
[30] We find that the Complaints Director’s conclusion was reasonable and is supported by the investigation conducted by the professional standards unit.
[31] On the information gathered by the investigator, the applicant knew where his former partner and children were living. He received their address on July 5, 2020.
[32] The applicant’s claim that the children had been abducted or were missing was not true. The applicant had been in contact with his former partner in August 2023 about his appeal from the dismissal of his contempt application. Further, the applicant was in communication with at least one of his children, who expressed that she would see him but only under supervision at a supervision center.
[33] On the heels of an unsuccessful contempt motion, the applicant went to the police station to try to get the police to do what the family court had declined to do. He sought the arrest of his former partner for the crime of abduction and the forced return of the children. The police properly did not do so.
[34] It was therefore reasonable for the Complaint’s Director to confirm the Chief of Police’s decision that there was no police misconduct in not pursuing a criminal investigation into the applicant’s misconceived claims of child abduction.
[35] With respect to the applicant’s claim that he was treated rudely by Cst. Marchand, it was reasonable for the Complaints Director to conclude that the Chief’s decision was reasonable and supported by the evidence. Cst. Marchand spent approximately 20 minutes with the applicant. When the applicant would not accept Cst. Marchand’s decision and persisted in arguing his point, the officer directed him to leave the police station using a raised voice. The Complaints Director found that Cst. Marchand could have taken a calmer approach in delivering his instructions to the applicant, his actions did not rise to the level of misconduct. We find this to be a reasonable decision.
Conclusion
[36] We find the Complaints Director’s decision to confirm the Chief of Police’s conclusion in these circumstances to be reasonable.
Costs
[37] We award costs on the usual partial indemnity basis.
[38] The application is dismissed, with costs of $5,000.00, inclusive, payable by the applicant London Police Service. Since LECA does not seek costs there shall be no order for costs for or against LECA.
“Stothart J.”
I agree: “Backhouse J.”
I agree: “D.L. Corbett J.”
Date: September 24, 2024
CITATION: Liu v. London Police Service, 2024 ONSC 5266
DIVISIONAL COURT FILE NO.: DV-24-251 JR
DATE: 2024-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BACKHOUSE, D.L. CORBETT, STOTHART, JJ.
BETWEEN:
Yanming Liu
Applicant
– and –
London Police Service and
Law Enforcement Complaints Agency
Respondents
DECISION ON JUDICIAL REVIEW
Date of Release: September 24, 2024