Deveaux v. Cornwall Police Services

CITATION: Deveaux v. CORNWALL POLICE SERVICES, 2024 ONSC 6983

DIVISIONAL COURT FILE NO.: 652/24

DATE: 20241212

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MATTHEW DEVEAUX

-and-

CORNWALL POLICE SERVICES, LAW ENFORCEMENT COMPLAINTS AGENCY, HIS MAJESTY THE KING in right of

BEFORE: FL Myers J

COUNSEL: Matthew Deveaux, for himself Pamela Stephenson Welch and Caitlyn Tolley, for the Law Enforcement Complaints Agency Christopher Morris, for Cornwall Police Services Brandon Fragomeni, for His Majesty the King in Right of Ontario (Special Investigations Unit)

HEARD at Toronto (by videoconference): December 12, 2024

ENDORSEMENT

[1] The title of proceedings is amended to add the word "ONTARIO" to the description of His Majesty the King.

[2] This is a procedurally complicated matter.

[3] In August, 2021, Mr. Deveaux was arrested by Cornwall police and charged with disturbing the peace.

[4] Mr. Deveaux complained to the SIU in 2021. In 2022, the complaint was screened out. But the Director invited Mr. Deveaux to reconsider applying once his criminal case was finished.

[5] In January of this year, during Mr. Deveaux's criminal trial, the Crown withdrew the charge right before the cross-examination of a police witness.

[6] Mr. Deveaux submitted a new complaint to the Law Enforcement Complaints Agency. The complaint was accepted and sent for investigation. The Director delegated the investigation to the Chief of the Cornwall Police Service.

[7] Mr. Deveaux submits that he has proof that officers who arrested him lied to the SIU initially and in court during his trial. He needs access to recordings that were obtained under an "O'Connor" order in the criminal trial. They cannot be used in other proceedings.

[8] Mr. Deveaux also sued a number of people in the Superior Court in Cornwall in relation to his arrest.

[9] After the criminal charges were withdrawn, Mr. Deveaux sought to amend his lawsuit to add claims for false arrest, among other things, against the police officers involved, the Chief of Police, the Crown, and Cornwall Police Services.

[10] Mr. Deveaux was able to make his amendments to his civil statement of claim in September, 2024. But he has not obtained leave to sue the Crown as is now required under the Crown Liability and Proceedings Act, 2019, SO 2019, c 7, Sch 17. The action is therefore stayed while he seeks leave to sue the Crown.

[11] On October 2, 2024, the Law Enforcement Complaints Agency suspended its investigation under an internal policy regarding investigation while other proceedings are under way. The Director held that it was in the public interest for Mr. Deveaux's civilian complaint against the police to await the outcome of his civil case.

[12] Mr. Deveaux seeks to have the Director's decision to suspend the investigation reviewed by the court. He submits that he has been stonewalled throughout at all levels of police inquiry and this is simply yet another bad faith effort to delay recognition of the police lies and misconduct that he can prove.

[13] Counsel for the Agency advised that while complaints aren't always stayed for civil actions, here the Cornwall Police Service is a small force. The Chief of Police is supposed to be investigating his own people. Now, he has been sued with those very same officers. So, he may have a conflict of interest between his role as an independent investigator and as a co-defendant in the civil proceeding where it may be in his personal interest for his underlings not to be found liable of wrongdoing.

[14] One wonders whether a chief of a small force can ever be seen to be entirely free of conflict when investigating his own people – especially those whom he personally recommended for advancement for example.

[15] Counsel for the Agency advises that the Director has the authority to address issues of conflict of interest by retaining outside investigators. While adding the defendants to the civil claim may make the conflict more patent, if the Chef of Cornwall Police Services is always in a conflict of interest investigating his own people, then the added issues in the civil lawsuit may be more an issue of quantity rather than quality. I expect that this will likely be a topic at the judicial review hearing.

[16] In addition, the Agency raises an issue of whether this judicial review proceeding is premature. While the court's policy against review of interim tribunal decisions is a strong one, I would expect Mr. Deveaux to argue that there is no other way to test the fairness and reasonableness of the decision to stop the investigation. If there is harm in delay, then hearing the matter now is the only way to avoid that harm. If, hypothetically, Mr. Deveaux were able to show a prima facie case of suspicious or improper activity or facile reasoning associated with the decision to stop the investigation now, I cannot say that the judicial review proceeding is necessarily premature. That too will likely be an issue for the hearing.

[17] Mr. Deveaux advises that there is a case conference scheduled for late January, 2025 in the civil action in Cornwall. On the table at the case conference will be the motion for leave to sue the Crown and a motion under Rule 30.10 by Mr. Deveaux seeking non-party production of the information that he needs from the criminal trial. Whether the issues are dealt with summarily at the case conference (as they likely would be in Toronto) or they are scheduled as motions for later hearing, will be up to the judge who hears the case conference. There may well be other issues on the table at the case conference too. In view of the number of issues and the complexities involved, the parties would be well-advised to seek the appointment of a case management judge for the action by applying to the Regional Senior Justice under Rule 77 of the Rules Civil Procedure.

[18] Mr. Deveaux has also brought a proceeding for freedom of information concerning some of the documentary evidence concerning his arrest and the involvement of the SIU. He says that the custodians of the documents have opposed production on the basis d that they are private expressions of authors' personal opinions. Mr. Deveaux submits that if the documents were created for use as evidence or in an investigation, they cannot be private by definition. A decision is expected in this privacy proceeding early in the new year.

[19] No one opposed Mr. Deveaux's request that this judicial review be held in abeyance pending the outcome of the privacy commission decision and the civil case conference. If Mr. Deveaux gets the materials that he seeks and if they are the slam dunk that he asserts, it may be that they will play an important role in assessing the reasonableness of the decision challenged in this proceeding.

[20] There is no way to know when the various decisions will be made in the other proceedings. There will be no use bringing this application back too soon. It seems to me that I can leave this on the basis that the application is held in abeyance for the time being and any party may seek to convene a fresh case conference to schedule this application any time after February 1, 2025.

[21] Finally, there is a problem with Mr. Deveaux's Notice of Application. It deals with all the issues discussed above and then some. It repeats the claims made in other proceedings and adds additional relief – none of which is available in this limited proceeding.

[22] I am satisfied that Mr. Deveaux has a very strong understanding of the various aspects of his claims and the various proceedings that he has been forced to bring to advance them. He agreed during the case conference that this judicial review proceeding is properly limited to challenging only the October 2, 2024 decision of the Director of the Agency to suspend the investigation into Mr. Deveaux's complaints pending the civil action. The Divisional Court does not have authority to address Mr. Deveaux's other concerns at this point.

[23] Mr. Deveaux is therefore required to amend his Notice of Application on or before January 1, 2025 so that the relief sought is limited to an order setting aside the Director's decision dated October 2, 2024 suspending the investigation into his complaints or sending the decision back to the Director for reconsideration, and in either case, with costs payable to Mr. Deveaux.

[24] I obviously have no idea at this stage whether there is truth to Mr. Deveaux's complaints. But someone among the government respondents should know. Watching a self-represented party try to understand and valiantly battle the procedural complexities thrown up by the phalanx of legal talent being brought to bear by government leads me to wonder how someone who truly has a provable claim can be expected to ever access civil justice.

[25] I am not sure I understand the war in which this proceeding is just one battle. Shouldn't our police services be transparent and accountable to the public whom they serve? Are there documents or recordings that people know will prove the truth of the claims one way or the other? Is there a public interest in having them produced to answer the questions raised in these proceedings? If Mr. Deveaux's allegations are not true, shouldn't those involved be publicly exonerated? If they are true, shouldn't those involved be accountable? In whose interest is requiring motion after motion after motion and three or more different legal proceedings to access evidence that will resolve an issue about alleged police misconduct pro or con? Who can afford the battles let alone the war of attrition being waged?

[26] I can only express the hope that if there is a lawyer who knows the truth of the allegations, that he or she will lead the clients to a fair outcome and not simply make the process impenetrable and inaccessible. Our system of justice is built upon the principle that lawyers are duty-bound to ensure that all parties receive a fair hearing. They are not just champions for the rich and strong. See: Law Society of Ontario, Rules of Professional Conduct, Rule 5.1-1: The lawyer's duty to fearlessly raise every issue for their cleint is to be performed, "in a way that promotes the parties' right to a fair hearing in which justice can be done."

FL Myers J.

Date: December 12, 2024