Corporation of the Canadian Civil Liberties Association et al. v. Ontario Civilian Commission on Police Services; Police Association of Ontario et al., Intervenors

[Indexed as: Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services)]

61 O.R. (3d) 649

[2002] O.J. No. 3737

Docket No. C36929

Court of Appeal for Ontario,

Weiler, Abella and Borins JJ.A.

October 3, 2002

Police -- Complaints -- In reviewing decision of police chief not to hold hearing in respect of complaint of police misconduct Ontario Civilian Commission on Police Services must determine whether there is reasonable basis in alleged facts underlying complaint for proceeding to hearing -- Commission not to engage in weighing evidence or assessing its truthfulness except to limited extent of determining whether complaint frivolous and vexatious -- Standard of review of decision of Commission that of patent unreasonableness -- Commission applying wrong evidentiary standard by requiring "clear and convincing" evidence before ordering hearing -- Commission erring in failing to consider whether complainants' rights under s. 8 of Charter of Rights and Freedoms were violated by police -- Commission did not give reasons for its decision which would enable reviewing court to perform its function -- Commission's decision patently unreasonable -- Canadian Charter of Rights and Freedoms, s. 8 -- Police Services Act, R.S.O. 1990, c. P.15, s. 64(6), (7).

Charter of Rights and Freedoms -- Application of Charter -- Ontario Civilian Commission on Police Services -- In reviewing decision of police chief not to hold hearing in respect of complaint of police misconduct Ontario Civilian Commission on Police Services must determine whether there is reasonable basis in alleged facts underlying complaint for proceeding to hearing -- Commission not to engage in weighing evidence or assessing its truthfulness except to limited extent of determining whether complaint frivolous and vexatious -- Standard of review of decision of Commission that of patent unreasonableness -- Commission applying wrong evidentiary standard by requiring "clear and convincing" evidence before ordering hearing -- Commission erring in failing to consider whether complainants' rights under s. 8 of Charter of Rights and Freedoms were violated by police -- Commission did not give reasons for its decision which would enable reviewing court to perform its function -- Commission's decision patently unreasonable -- Canadian Charter of Rights and Freedoms, s. 8 -- Police Services Act, R.S.O. 1990, c. P.15, s. 64(6), (7).

The individual applicants complained to the Chief of the Guelph Police Force (the "Chief") about their treatment by the police following their arrest at a political protest. In particular, they complained that they were needlessly transferred to a detention centre where each of them was subjected to a humiliating strip search. In her report to the Guelph Police Services Board, the Chief concluded that the Guelph Police had acted in accordance with police policy. The applicants then filed formal complaints under the Police Services Act. Section 64(6) of that Act provides that if the Chief is of the opinion that the complaint is unsubstantiated, no action shall be taken. Section 64(7) provides that if the Chief is of the opinion that the police officer's conduct may constitute misconduct or unsatisfactory work performance of a [page650] serious nature, a hearing shall be held. If the Chief decides not to hold a hearing, the complainant has a right of appeal to the Ontario Civilian Commission on Police Services (the "Commission"). The Chief dismissed the complaints for being out of time.

The applicants requested a review of that decision by the Commission. When a request for review of a decision of a police chief is received, the Commission has three options. Pursuant to s. 72(8) of the Act, the Commission may confirm the decision, may direct the Chief to process the complaint as it specifies, or may assign the complaint to a police force other than the one in respect of which the complaint is made, and order that force to review or investigate the complaint or to conduct a hearing of the complaint. The Commission directed that the complaints be remitted to the Waterloo Regional Police Service for investigation. The Waterloo Police categorized the nature of the complaints as complaints against the conduct of a police officer. The applicants disagreed with this characterization and asked the Commission to review this decision, requesting that the complaints be characterized as involving matters of police policy. The Commission confirmed the decision of the Waterloo Police. The Waterloo Police completed their investigation and delivered a final report to the Chief of the Guelph Police Service for her consideration and decision pursuant to s. 64(1) of the Act. The report went to the Professional Standards Committee of the Guelph Police, who reviewed the complaints and findings of the Waterloo Police and concluded that most of the complaints were unsubstantiated. The findings and recommendations were reviewed and approved by the Chief, whose decision was communicated to the individual applicants.

The intervenor Canadian Civil Liberties Association ("CCLA") wrote to the Commission asking that it review the decision with respect to the individual applicants. The Commission agreed to do so. The Commission found that the Chief's decisions should be confirmed. The applicants brought an application for judicial review of that decision. The Divisional Court quashed the decision and remitted the matter back to the Commission to convene a differently constituted panel to reconsider the complaints. The court held that the role of the Chief in considering a complaint under s. 64 of the Act is a limited one and is in a sense akin to the role of a provincial court judge conducting a preliminary inquiry; that there was some evidence in this case which, if accepted, could constitute police misconduct and that in such circumstances a hearing is mandatory and there is no discretion available to the Chief to dismiss the complaint as unsubstantiated; that the Commission and the Chief appeared to have applied the wrong evidentiary standard by requiring "clear and convincing evidence" before ordering that a hearing be held, as s. 64 of the Act requires that there must be evidence which may constitute misconduct by a police officer before a hearing will be ordered; that the Commission and the Chief erred in failing to consider whether there was any evidence that the applicants were subjected to a strip search which violated their constitutional rights and which might therefore constitute police misconduct; that there was an obligation on the Commission in the circumstances to give reasons for its decision; and that the Commission's decision was patently unreasonable having regard to the reviewable errors committed therein. The respondent appealed.

Held, the appeal should be dismissed.

The standard of review that applies to a decision of the Commission confirming the decision of the Chief not to hold a hearing into alleged misconduct is patent unreasonableness. In making a determination as to whether the Commission's decision is patently unreasonable, a reviewing court will have regard to the factors the Commission ought to have considered. One of those factors in this case was whether the actions of the police in transferring the applicants to the detention centre were consistent with s. 8 of the Canadian Charter of Rights and Freedoms. The Commission had both explicit and implicit jurisdiction to consider the Charter. [page651]

In reviewing a decision of the Chief and interpreting s. 64(6) and (7) of the Act, the Commission must determine whether there is a reasonable basis in the alleged facts on which the complaint is based for proceeding to a hearing. Reasonable and probable grounds on which the Chief can base an opinion that there has been misconduct or unsatisfactory work performance by a police officer are not required. The standard of "reasonable and probable grounds" is too close to the standard of "clear and convincing evidence", the standard required to be met for a finding of misconduct after a hearing is held under s. 64(10). Using the standard of "reasonable and probable grounds" at the first stage would render the two-stage process virtually meaningless. In deciding whether there is a reasonable basis in the alleged facts on which the complaint is based for proceeding to a hearing, the Commission, like the Chief, does not engage in weighing the evidence or assessing its truthfulness, except to the limited extent of determining whether the complaint is frivolous and vexatious. In this case, the Commission, like the Chief, applied the wrong evidentiary standard in determining whether a hearing should be held. Only evidence which "may" constitute misconduct or unsatisfactory work performance is required, not "clear and convincing" evidence. In misconstruing the standard to be applied to the facts, the Commission arrogated to itself an issue reserved to another forum, that of the trier of fact at a hearing.

A decision to transfer the applicants that ignored or neglected their right to be free from unreasonable search and seizure could bring discredit upon the reputation of the police force and was thus evidence that misconduct "may" have occurred. At a minimum, such conduct could constitute unsatisfactory work performance.

The Commission is not required to give reasons for its decision. What was required was that the court be able to perform its function by reviewing the Commission's decision.

In light of the Commission's error in interpreting the evidentiary standard to be applied in determining whether a hearing should be held into an allegation of misconduct, and in light of the Commission's failure to consider the right of the applicants to be free from unreasonable search and seizure, the Commission's decision was patently unreasonable.

While the decision of the Commission should be quashed, the matter should not be sent back to the Commission to be decided in accordance with the court's reasons. Instead, in the circumstances of this case, it was appropriate for the reviewing court to make an order and to declare that the individual applicants were entitled to a hearing to be conducted pursuant to s. 72(8) of the Act by a different police force.

APPEAL from a decision of the Divisional Court allowing an application for judicial review of a decision of the Ontario Civilian Commission on Police Services.

Browne v. Ontario (Civilian Commission on Police Services) (2001), 2001 3051 (ON CA), 56 O.R. (3d) 673, 207 D.L.R. (4th) 415 (C.A.); Cooper v. Canada (Human Rights Commission), 1996 152 (SCC), [1996] 3 S.C.R. 854, 140 D.L.R. (4th) 193, consd Other cases referred to Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222, 17 C.P.C. (4th) 219 (C.A.); Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, 243 N.R. 22; Barreau du Québec c. Lachance, [2000] J.Q. No. 317 (Quicklaw) (S.C.); Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, 208 D.L.R. (4th) 107, 280 N.R. 268; Crawford v. Spooner (1846), 18 E.R. 667, 6 Moo. P.C.C. 1, 4 Moo. Ind. App. 179 (P.C.); Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207, 26 C.P.C. (4th) 1 (Ont. C.A.) (sub nom. Pacific & Western Trust Co. v. Carroll); Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC), [1999] 3 S.C.R. 423, 178 D.L.R. (4th) 1, 247 N.R. 97, 49 B.L.R. (2d) 68, [2000] I.L.R. 1-3741, 39 C.P.C. (4th) 100; [page652] Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 2001 21164 (ON CA), 56 O.R. (3d) 505 (Eng.), 56 O.R. (3d) 577 (Fr.), 208 D.L.R. (4th) 577, 89 C.R.R. (2d) 1 (C.A.), revg (1999), 1999 19910 (ON SCDC), 70 C.R.R. (2d) 136 (Ont. Div. Ct.); MacBain v. Lederman, 1985 5548 (FCA), [1985] 1 F.C. 856, 22 D.L.R. (4th) 119, 62 N.R. 117, 18 C.R.R. 165, 85 C.L.L.C. 17,023 (C.A.), revg 1984 5379 (FC), [1984] 1 F.C. 696, 11 D.L.R. (4th) 202, 11 C.R.R. 319, 84 C.L.L.C. 17,013 (T.D.); Pappajohn v. R., 1980 13 (SCC), [1980] 2 S.C.R. 120, 111 D.L.R. (3d) 1, 32 N.R. 105, [1980] 4 W.W.R. 387, 52 C.C.C. (2d) 481, 14 C.R. (3d) 243 (sub nom. Pappajohn v. The Queen); Pierce v. Law Society of British Columbia (1993), 1993 765 (BC SC), 103 D.L.R. (4th) 233 (B.C.S.C.); Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 1222, [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, 226 N.R. 201; R. v. 974649 Ontario Inc., 2001 SCC 81, 206 D.L.R. (4th) 444, 279 N.R. 345, 88 C.R.R. (2d) 189, 159 C.C.C. (3d) 321, 47 C.R. (5th) 316, 154 O.A.C. 345 (sub nom. Ontario v. 974649 Ontario Inc.); R. v. Arcuri, [2001] 2 S.C.R. 828, 203 D.L.R. (4th) 20, 274 N.R. 274, 157 C.C.C. (3d) 21, 44 C.R. (5th) 213, 2001 SCC 54; R. v. Braich, 2002 SCC 27, 210 D.L.R. (4th) 635, 285 N.R. 162, 162 C.C.C. (3d) 324, 50 C.R. (5th) 92; R. v. Cinous, 2002 SCC 29, 210 D.L.R. (4th) 64, 285 N.R. 1, 162 C.C.C. (3d) 129, 49 C.R. (5th) 209; R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836, 31 Alta. L.R. (3d) 1, 183 N.R. 81, 99 C.C.C. (3d) 1, 39 C.R. (4th) 287; Renaud v. Québec (Commission des affaires sociales), 1999 642 (SCC), [1999] 3 S.C.R. 855, 184 D.L.R. (4th) 441, 249 N.R. 389; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1; United States v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, 70 D.L.R. (3d) 136, 34 C.R.N.S. 207, 9 N.R. 215, 30 C.C.C. (2d) 424; Yuz v. Laski (1986), 1986 2641 (ON CA), 57 O.R. (2d) 106, 17 O.A.C. 228, 32 D.L.R. (4th) 452 (C.A.), affg (1984), 1984 1895 (ON SC), 48 O.R. (2d) 161, 6 O.A.C. 46 (Div. Ct.) (sub nom. Yuz, Re) Statutes referred to Bill 160, Education Quality Improvement Act, 1997, 1st sess., 36th Leg., Ontario, 1995-1997 [assented to December 8, 1997, S.O. 1997, c. 31] Canadian Charter of Rights and Freedoms, s. 8 Canadian Human Rights Act, 1977, S.C. 1976-77, c. 33, ss. 36(3) (a), 41(2) Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 44(3) Criminal Code, R.S.C. 1985, c. C-46, s. 31 Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 Police Services Act, R.S.O. 1990, c. P.15, ss. 1, 56(1), 57(1), (2), 59(3), (4), 64, 68, 70, 72, 74, 135(1)(23.1) Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 Rules and regulations referred to O. Reg. 123/98 ("Police Services Act"), Sched., s. 2(1) Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20 Authorities referred to Ceyssens, P., et al., Ontario Police Services Act, Fully Annotated, 2002-2003 ed. (B.C.: Earlscourt, 2002) Driedger, E.A., The Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) Ontario"Report and Recommendations on Amendments to the Police Services Act Respecting Civilian Oversight of Police" by R. McLeod, 21 November 1996 Ontario, Legislative Assembly, Debates (17 March 1997) (Standing Committee on the Administration of Justice) Steinecke, R., A Complete Guide to the Regulated Health Professions Act, looseleaf (Aurora, Ont.: Canada Law Book, 2001) Woolf, Lord, J. Jowell and A.P. Le Sueur, Principles of Judicial Review (London: Sweet & Maxwell, 1999) [page653]

Linda M. Plumpton, for respondents. Brian G. Whitehead and Lisa Ofiara, for appellant. Ian J. Roland and Robert A. Centa, for intervenors the Police Association of Ontario and the Ontario Provincial Police Association. David Migicovsky and Lynda A. Bordeleau, for intervenor Ontario Association of Chiefs of Police.

The judgment of the court was delivered by

[1] WEILER J.A.: -- When a civilian makes a complaint of misconduct or unsatisfactory work performance by a police officer, the officer's Chief must investigate the complaint and make a decision as to whether or not to order a hearing into the complaint. If the Chief of the police force in respect to which a complaint has been made (the "Chief") decides not to hold a hearing, the complainant has a right of appeal to the Ontario Civilian Commission on Police Services (the "Commission"). In exercising the powers conferred upon it, the Commission is required to interpret s. 64(6) and (7) of the Police Services Act, R.S.O. 1990, c. P.15 (the "Act") to determine how these provisions apply to the facts of the case before it. Section 64(6) provides that if the Chief is of the opinion that "the complaint is unsubstantiated" no action shall be taken. Section 64(7) provides that if the Chief is of the opinion that "the police officer's conduct may constitute misconduct . . . or unsatisfactory work performance" of a serious nature, a hearing shall be held. In the case before us, the Commission upheld a decision of the Chief not to order a hearing into a complaint. The Divisional Court reviewed that decision and quashed it. This is an appeal from that decision.

[2] I propose to address the issues raised on this appeal through a discussion of the following issues:

(1) The standard of review to be applied to the Commission's decision;

(2) The role of the Chief in determining if a hearing into a complaint should be held;

(3) The scope of the Commission's review of the Chief's decision;

(4) Whether the Commission is required to give reasons for its decision;

(5) Whether the Commission's decision was patently unreasonable. [page654]

[3] For the reasons that follow, I would hold as follows:

(1) The standard of review is whether the Commission's decision is patently unreasonable;

(2) In reviewing a decision of the Chief and interpreting s. 64(6) and (7), the Commission must determine whether there is a reasonable basis in the alleged facts on which the complaint is based for proceeding to a hearing. In deciding this question, the Commission, like the Chief, does not engage in weighing the evidence or assessing its truthfulness, except to the limited extent of determining whether the complaint is frivolous and vexatious.

(3) In this case, the Commission, like the Chief, applied the wrong evidentiary standard in determining whether a hearing should be held.

(4) The Commission is not required to give reasons for its decision. What is required is that the court be able to perform its function by reviewing the Commission's decision.

(5) The Commission's decision was patently unreasonable.

FACTS

[4] On the night of November 18, 1997, a fundraising dinner was held in a Guelph hotel which the Ontario Minister of Education attended. A number of people gathered outside the Holiday Inn to demonstrate in protest against the proposed amendments to Bill 160 of the Education Act. The Guelph police arrested nine women, including the complainants, on the basis that they had breached the peace by repeatedly trying to prevent access to the hotel by persons attending the dinner. The breach of the peace provision contained in s. 31 of the Criminal Code, R.S.C. 1985, c. C-46 grants only a power of arrest and detention. It does not create an offence.

[5] Upon their arrest, they were brought to the Guelph police station, which has 16 holding cells. Prior to the demonstration, the Guelph Police designated ten of these cells for adult males, three for adult females and three for youth offenders.

[6] During the demonstration, the Guelph Police arrested nine women, five men, and one youth and brought them to the station. The single youth taken into custody was never placed in a holding cell but was detained in an interview room until he was released into the custody of his mother. [page655]

[7] The Guelph Police held the first six women brought to the station in the cells designated for adult females and youths. As large numbers of protesters were expected, the Guelph police had formulated an operational plan to send any overflow of prisoners to the Wellington Detention Centre ("WDC"), a maximum-security provincial detention facility designated as a police lock-up.

[8] The women in the cells were chanting and singing. The cells were located close to the communication centre in the police station. A police officer asked the individual complainants to be quiet. One of the complainants, Alison Gorbould, alleges that a police officer warned her to "keep her friends quiet or they would be sent to the WDC where they play hardball". Another individual respondent confirms that Gorbould told her that an officer had made this statement. When the seventh woman arrived at the station, the Guelph Police decided to transfer all of the women to the detention centre. The complainants allege that the decision to transfer them was made in bad faith and not in accordance with the policy the police had themselves devised.

[9] The complainants were transported by the Guelph Police to the detention centre where they were automatically strip searched by Ministry of Correctional Services ("Ministry") staff in accordance with standard Ministry policy before being admitted to the female living units. The appellants concede that the police had no power to strip search the women at the Guelph police station. The complainants were released later that night and no charges were laid.

[10] Four of the women arrested complained to Chief Bradburn, the Chief of the Guelph Police Force, that in transferring them to the detention centre, the police knew or ought to have known that they would be subjected to a loss of dignity by being strip searched. They submitted that the decision to transfer them was police misconduct and violated their right to be free from unreasonable search and seizure. They requested a hearing into their complaint.

[11] The complainants further complained about their treatment and the conduct of the officers to the Guelph Police Services Board ("Board"). On February 12, 1998, the Board adopted a resolution requesting a report on the event in question from Chief Bradburn. In her April 1998 report to the Board, Chief Bradburn concluded that the Guelph Police had acted in accordance with police policy.

[12] The complainants then filed formal complaints under the Police Services Act. Each complainant claimed that there was no legitimate basis for her arrest, some of them claimed that excessive force was used in apprehending them, some claimed undue delay before the police advised them of their rights, and some of them claimed they were detained in custody for an excessive period of time. There were also complaints about hardships endured in custody, such [page656] as being forced to walk through snow and slush without their shoes. The major nature of the complaints was that the women were needlessly transferred to the Wellington Detention Centre where each of them was subjected to a humiliating strip search.

[13] Chief Bradburn dismissed the complaints for being out of time. The complainants requested a review of this decision by the Commission.

[14] When a request for review of a decision of a police chief is received, the Commission has three options. Pursuant to s. 72(8) of the Act, the Commission may confirm the decision, may direct the Chief to process the complaint as it specifies, or may assign the complaint to a police force other than the one in respect of which the complaint is made, and order that force to review or investigate the complaint, or to conduct a hearing of the complaint.

[15] On July 21, 1998, the Commission directed that the complaints be remitted to the Waterloo Regional Police Service ("Waterloo Police") for investigation. This was the first review of the complaints by the Commission under s. 72(8).

[16] The Waterloo Police categorized the nature of the complaints as complaints against the conduct of a police officer. The complainants disagreed with this categorization and asked the Commission to review this decision, requesting that the complaints be characterized as involving matters of police policy. The Commission confirmed the decision of the Waterloo Police. This was the second review of the complaints by the Commission under s. 72(8).

[17] In June 1999, the Waterloo Police had completed their investigation and delivered a final report to Chief Bradburn of the Guelph Police Service for her consideration and decision pursuant to s. 64(1) of the Act. At this stage, the Canadian Civil Liberties Association ("CCLA") intervened on behalf of the complainants and requested that the Commission ensure that the Guelph Police not reacquire jurisdiction over the complaints. The Commission advised the CCLA that a decision by Chief Bradburn was both appropriate and in accordance with the legislative scheme.

[18] The report of the Waterloo Police went to the Professional Standards Committee of the Guelph Police who reviewed the complaints and findings of the Waterloo Police and concluded that most of the complaints, including those relating to the decision to transfer the complainants to the WDC and their subsequent strip searches, were "unsubstantiated". In reaching its conclusion, the Professional Standards Committee relied on the findings of the Waterloo Police's investigation. The findings and recommendations were reviewed and approved by Chief Bradburn, whose decision was communicated to the individual complainants by letter dated October 1, 1999. [page657]

[19] In its letter dated October 27, 1999, the CCLA wrote to the Commission asking that it review the decision with respect to four complainants. In a letter dated November 5, 1999, the Commission agreed to do so. This was the third and final review by the Commission under s. 72(8) of the Act.

[20] The Commission sent its decision letter to the CCLA on April 13, 2000. The Commission stated:

This matter came before a Review Panel composed of Commission members. They considered your clients' initial complaints and subsequent submissions, the investigative file and Report of the Waterloo Regional Police Service and the decision of the Chief.

The Commission reviewed the other allegations contained in each complainant's file and determined that the Chief's decisions in those other matters be confirmed.

[21] In the decision letter, the Commission further stated:

In its consideration of your clients' complaints, the Commission became aware of other issues that were of concern and issued a number of recommendations.

Finally, we are informed that the Guelph Police Service will no longer be using the local detention centre (with its stringent admission policy of strip searching any person incarcerated) for the purposes of holding lock up prisoners when the Guelph Police Service's cells are filled.

[22] The respondents filed a notice of application for judicial review and sought an order quashing the decision of the Commission dated April 13, 2000.

The Decision of the Divisional Court

[23] The Divisional Court quashed the decision and remitted the matter back to the Commission to convene a differently constituted panel to reconsider the complaints of the complainants in light of its reasons.

[24] The Divisional Court held:

• The role of the Chief in considering a complaint of a citizen under s. 64 of the Act is a limited one. It is in a sense akin to the role of a provincial court judge conducting a preliminary inquiry.
• There is some evidence in this case which, if accepted, could constitute police misconduct. In such circumstances a hearing is mandatory and there is no discretion available to the Chief to dismiss the complaint as unsubstantiated. [page658]
• The Commission and Chief Bradburn appear to have applied the wrong evidentiary standard by requiring "clear and convincing evidence" before ordering that a hearing be held. Section 64 of the Police Services Act requires that there must be evidence which may constitute misconduct by a police officer before a hearing will be ordered.
• The Commission and Chief Bradburn erred in failing to consider whether there is any evidence that the complainants were subjected to a strip search which violated their constitutional rights and which may therefore constitute police misconduct.
• The Commission gave no reasons for its decision. In the face of an evidentiary record which contains some evidence of police misconduct, albeit contradicted in some respects by other evidence, and considering it is not the role of the Chief at this stage to weigh the evidence, there was an obligation on the Commission to say why it was confirming as "unsubstantiated" the decision of the Chief to dismiss the complaint in relation to the strip search.
• The Commission's decision was patently unreasonable having regard to the reviewable errors committed therein.

ANALYSIS

Issue 1: The Standard of Review

[25] The Divisional Court did not expressly decide the standard of review. The court held that, irrespective of the standard of review, the Commission's decision was patently unreasonable. I agree.

[26] In Browne v. Ontario (Civilian Commission on Police Services) (2001), 2001 3051 (ON CA), 56 O.R. (3d) 673, 207 D.L.R. (4th) 415 (C.A.) at paras. 73-75, Abella J.A. considered the standard of review of the Commission's decision to order a hearing into allegations of police misconduct, with reference to the four factors for deciding the standard of review of a tribunal set forth by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193 at paras. 29-38. They are: 1) the existence of a privative clause; 2) the expertise of the tribunal; 3) the purpose of the Act and its provisions; and 4) the nature of the problem. She concluded that "[t]he combination of the purpose of the Act [to increase confidence in the provision of police services including the processing of public complaints], the privative clause, and the designated and specialized expertise of the [page659] Commission call for patent unreasonableness as the guiding standard of review." The standard of patent unreasonableness means that the Commission's decision whether or not to order a hearing can be set aside only if it was made arbitrarily or in bad faith, cannot be supported on the evidence, or if the Commission failed to consider appropriate factors: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, 208 D.L.R. (4th) 1 at para. 29.

[27] The appellant and the Police Association of Ontario and the Ontario Provincial Police Association ("Intervenors") acknowledge that patent unreasonableness is the appropriate standard of review. The respondents submit that a constitutional issue of law relating to the lawfulness of the search is raised and that the Commission has no particular expertise in resolving constitutional issues. The respondents submit that the standard of review is one of correctness.

[28] This case is not about the constitutionality of the search that was conducted at the Wellington Detention Centre. Indeed, that search was conducted pursuant to the statutory requirement regarding admission to a correctional facility under the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22. That legislation is not the subject of a constitutional challenge here. Nor is the conduct of the correctional officers who conducted the searches subject to review under the Police Services Act. This is not to say that the Commission could ignore the complainants' constitutional right to be free from an unreasonable search as a factor in reviewing the decision of the Chief not to order a hearing into the complainants' complaint. The failure to consider an appropriate factor is a consideration in the determination of whether the refusal to order a hearing is patently unreasonable.

[29] To summarize, the standard of review that applies to a decision of the Commission confirming the decision of the Chief not to hold a hearing into alleged misconduct is patent unreasonableness. In making a determination as to whether the Commission's decision is patently unreasonable, a reviewing court will have regard to the factors the Commission ought to have considered. One of those factors is whether the actions of the police in transferring the complainants to the WDC were consistent with s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11.

Issue 2: The Role of the Chief in Determining if a Hearing into a Complaint Should be Held

[30] For ease of reference, s. 64(6) and (7) of the Act are reproduced below. Other related sections may be found in the appendix to these reasons. [page660]

64(6) If, at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the opinion that the complaint is unsubstantiated, the chief of police shall take no action in response to the complaint and shall notify the complainant and the police officer who is the subject of the complaint, in writing, together with a copy of the written report, of the decision and of the complainant's right to ask the Commission to review the decision within 30 days of receiving the notice.

(7) Subject to subsection (11), if, at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the opinion that the police officer's conduct may constitute misconduct, as defined in section 74, or unsatisfactory work performance, he or she shall hold a hearing into the matter.

(Emphasis added)

[31] Subsection (11), to which s. 64(7) is subject, reads as follows:

64(11) If, at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the opinion that there was misconduct or unsatisfactory work performance but that it was not of a serious nature, the chief of police may resolve the matter informally without holding a hearing, if the police officer and the complainant consent to the proposed resolution.

(Emphasis added)

[32] In relation to ss. 64(6) and (7), the Divisional Court held at paras. 15-16:

The role of the Chief in considering a complaint of a citizen under section 64 of the Act is a limited one. It is in a sense akin to the role of a provincial court judge conducting a preliminary inquiry.

If one reads subsection (6) and (7) of section 64, the only reasonable interpretation one can make is that if there is some evidence which, if accepted, may constitute misconduct as defined, on the part of a police officer, a hearing shall be held. In such circumstances, a hearing is mandatory and there is no discretion available to the Chief of Police to dismiss the complaint as unsubstantiated.

[33] The respondents submit that the Divisional Court's decision is correct. The appellant, however, submits that it effectively eliminates any meaningful role for the Chief in the complaints process. The appellant and intervenors submit that the appropriate standard for the Chief's decision to hold a hearing is reasonable and probable grounds of misconduct.

[34] The proper approach to statutory interpretation is found in E.A. Driedger, The Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87 and has been adopted by the Supreme Court in many of its decisions including the administrative law context, e.g., Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, 208 D.L.R. (4th) 107 at para. 27. The proper approach is as follows: [page661]

Today there is only one principle or approach, namely, the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The legislative context: the role of the Chief and the Commission

[35] As indicated in Browne, supra, the object of the Act is to increase confidence in the provision of police services, including the processing of complaints. The intention of the legislature in introducing the review mechanism in 1997 was to create a check or balance"to ensure that key decisions that are made by the chief can be reviewed by a provincial body and determined whether they should stand or be changed": Ontario, Legislative Assembly, Standing Committee on Administration of Justice, Debates (17 March 1997).

[36] The legislative scheme of the Act contributes to the interpretation and understanding of s. 64(6) and (7) and I will briefly review it. The Police Services Act governs complaints about the services provided by a police force or a police officer. A member of the public who is directly affected by the policy, service or conduct of a police force or one of its officers may make a complaint in writing: s. 56(1) and s. 57(1) and (2). The Chief determines whether a complaint is about policy, service or conduct. If the Chief considers the complaint to be frivolous, vexatious or in bad faith, or if the complaint is made more than six months after the facts on which it is based have occurred, he or she may decide not to deal with the complaint: s. 59(3) and (4). If these sections do not apply, the Chief shall cause every complaint about an officer's conduct to be investigated and reported in writing: s. 64(11). This investigation and report may be done by a different police force: s. 64(2).

[37] At the conclusion of the investigation, the Chief has three options: to dismiss the complaint, to hold a hearing, or to try and resolve the matter informally if the Chief is of the opinion that the misconduct is not serious.

[38] If the Chief is of the opinion "that the complaint is unsubstantiated, [he or she] shall take no action in response to the complaint": s. 64(6). In this situation, the Chief notifies the complainant of this decision and provides him or her with a copy of the report. Similarly, s. 59(3) provides that if the Chief is of the opinion that the complaint is "frivolous or vexatious" or "made in bad faith", the Chief does not have to deal with the complaint.

[39] On the other hand, if the Chief "is of the opinion that the police officer's conduct may constitute misconduct as defined in section 74, or unsatisfactory work performance, he or she shall [page662] hold a hearing into the matter": s. 64(7). Misconduct in s. 74 includes breaching the prescribed code of conduct for a police officer. Pursuant to s. 64(10), if a hearing is held and if misconduct is proved "on clear and convincing evidence", the Chief must act in accordance with a range of disciplinary options set forth in s. 68. These range from dismissal to directing that the police officer forfeit up to three days or 24 hours pay.

[40] Sections 64(11)-(15) give the Chief the power to characterize the seriousness of the conduct. The Chief is required to give notice to the complainant of her opinion that the misconduct is not of a serious nature. This gives the complainant an opportunity to have the decision reviewed by the Commission. If the complainant agrees that the matter should be resolved informally or does not ask for a review of the decision categorizing the misconduct as not of a serious nature or, if there is a review and the Commission upholds the Chief's opinion, action is taken to resolve the matter informally. One of the informal resolutions possible is an apology. If negotiations to resolve the matter informally break down, the Chief may, nevertheless, proceed to impose a penalty on the police officer. The penalty may be a forfeiture of not more than three days' pay pursuant to s. 68(1)(e), a reprimand, or a direction that the officer take counselling or participate in a specified activity pursuant to s. 68(5). If the officer does not accept the penalty imposed, the Chief "shall not impose a penalty or take any other action . . . but shall hold a hearing under subsection 7": s. 64(15)(3).

[41] The complainant may ask the Commission to review the decision of the Chief. The right to request a review applies to (1) the categorization of the complaint as a complaint respecting policy, services or the conduct of a police officer; (2) the determination that the complaint is frivolous or vexatious or made in bad faith; (3) the dismissal of the complaint for having been made more than six months after the facts on which the complaint is based; (4) a determination that the complainant is not directly affected by the policy, service or conduct that is the subject of the complaint; (5) a determination that the complaint is unsubstantiated; and (6) a determination that the conduct in question is not of a serious nature: s. 72(1)-(5).

[42] Upon receiving a request to review a decision, the Commission "shall" review it "taking into account" any material provided by the complainant or the Chief, but the Commission is not to hold a hearing: s. 72(7). The Commission has the power to confirm or overturn the Chief's decision, specify how the complaint is to be dealt with, or assign the complaint to another police force: s. 72(8). There is no appeal from the Commission's decision: s. 72(12). The decision is, however, subject to judicial review. [page663]

[43] If a hearing has been held, the police officer or the complainant may appeal the resulting decision to the Commission. If the appeal is by a police officer, or if the complaint under appeal is from a finding that misconduct or unsatisfactory work performance was not proved on clear and convincing evidence, the Commission must entertain the appeal: s. 70(1)-(3). The appeal is based on the record, but the Commission may receive new or additional evidence: s. 70(5).

[44] Thus, the legislation sets out a detailed framework for the efficient and fair handling of police complaints. As part of this framework, the Chief is given the important role of reviewing the evidence from the investigation arising from a complaint, to determine whether, in his or her opinion, the complaint is unsubstantiated or whether the conduct may constitute misconduct.

The intervenors' submission: reasonable and probable grounds

[45] I find it convenient to address first the submission of the intervenors that, pursuant to s. 64(6) and (7), for the Chief to hold a hearing based on a complaint, there must be reasonable and probable grounds on which the Chief can base an opinion that there has been misconduct or unsatisfactory work performance by a police officer.

[46] The overall legislative purpose contained in the Police Services Act is, as noted by Abella J.A. in Browne, supra, at para. 67, to increase public confidence in the provision of police services. The high threshold proposed by the intervenors for reviewing police conduct would not serve this purpose.

[47] The requirement in s. 64(7) that a hearing be held if there "may" have been misconduct by the police officer connotes "possibility" rather than "probability" and is a good indication that the standard for a hearing is not "reasonable and probable grounds".

[48] The standard of "reasonable and probable grounds" put forward by the intervenors is, in the submission of CCLA and the complainants, too close to the standard of "clear and convincing evidence", the standard required to be met for a finding of misconduct after a hearing is held under s. 64(10):

64(10) At the conclusion of the hearing, if misconduct or unsatisfactory work performance is proved on clear and convincing evidence, the chief of police shall take any action described in section 68.

[49] At p. 136 of P. Ceyssens et al., Ontario Police Services Act, Fully Annotated, 2002-2003 ed. (B.C.: Earlscourt, 2002), the authors discuss the standard clear and convincing evidence as follows: "Clear and convincing evidence was defined in [page664] Allan v. Munro, Ont. Bd. Inq., 27 July, 1994 to mean 'weighty, cogent and reliable evidence upon which a trier of fact, acting with care and caution, can come to the fair and reasonable conclusion that the officer is guilty of misconduct' (p. 11). This approach has been generally endorsed in other decisions" (citations omitted).

[50] I agree that using "reasonable and probable grounds" as the standard for ordering a hearing would render the two-stage process virtually meaningless because it is too close to the "clear and convincing evidence" standard at a hearing. The terminology in s. 64(6) and (7) as compared with s. 64(10) indicates that the legislature intended a clear distinction between the two processes. The Chief is not required to hold a hearing only when a complaint has been proven on a balance of probabilities, or the slightly higher standard of clear and convincing evidence.

[51] The standard "reasonable and probable cause" is derived from the criminal law. The "Report and Recommendations on Amendments to the Police Services Act Respecting Civilian Oversight of Police", dated November 21, 1996 by Roderick McLeod and prepared for the then Attorney General, Charles Harnick, formed the basis for the amendments to the Act that created the Commission. The report recommends at 8.5.2 that "the current trappings of the criminal law be removed from the complaints/discipline process".

[52] I would reject the submission that "reasonable and probable grounds" or "clear and convincing evidence" is the standard to be applied in ss. 64(6) and (7). This standard does not accord with the wording of ss. 64(6) and (7), the purpose of the Act, or the overall scheme of the legislation. It is a construction that the words cannot reasonably bear.

[53] The phrase "[if] the chief of police is of the opinion" is found in both ss. 64(6) and (7). In Cooper v. Canada (Human Rights Commission), 1996 152 (SCC), [1996] 3 S.C.R. 854, 140 D.L.R. (4th) 193, the court was concerned with somewhat similar wording. The Canadian Human Rights Commission was required, pursuant to the Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 44(3), to consider the report of the investigator who had investigated a complaint and to take one of two courses of action. The Commission could request an inquiry if it was "satisfied" that it was "warranted" or it could dismiss the complaint if it was "satisfied" that an inquiry was "not warranted". The Supreme Court held at para. 53 that the words indicated that the Commission was performing a statutory screening function. Similarly, in s. 64(6) and (7), the words "[if] the chief of police is of the opinion" are indicative that the Chief performs a statutory screening function in deciding whether or not to hold a hearing. [page665]

[54] In Cooper, supra, the Supreme Court held in para. 53 that the performance of a statutory screening function meant:

The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it (Emphasis added). Justice Sopinka emphasized this point in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), 1989 44 (SCC), [1989] 2 S.C.R. 879, at p. 899, 62 D.L.R. (4th) 385 (S.C.C.):

The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage.

[55] The decision in Cooper indicates that the statutory screening function to be performed by a Human Rights Commission does not involve the weighing of evidence to determine its ultimate reliability. What is envisaged instead is a determination of "whether there is a reasonable basis in the evidence for proceeding to the next stage".

[56] Before discussing the decision in Cooper further it is appropriate to consider the decision in MacBain v. Lederman, 1984 5379 (FC), [1984] 1 F.C. 696, 11 D.L.R. (4th) 202 (T.D.), revd 1985 5548 (FCA), [1985] 1 F.C. 856, 22 D.L.R. (4th) 119 (C.A.). This is a decision relied on by the appellants as to the meaning of the word "substantiate". Pursuant to the Canadian Human Rights Act, 1977, S.C. 1976-77, c. 33 (since amended), the Commission may adopt an investigative report if it is "satisfied that the complaint to which the report relates has been substantiated": s. 36(3)(a). The Commission can appoint a tribunal to inquire into the complaint at any time after the filing of the complaint. If, at the conclusion of the inquiry, a tribunal finds "that the complaint . . . is substantiated" it may make an order against the offending party: s. 41(2). After setting out the dictionary definition of the word "substantiate" from the Shorter Oxford Dictionary and the Living Webster Encyclopedic Dictionary, Collier J. held that the phrase "substantiate" as used in both sections simply meant "proved". On appeal, Heald J., on behalf of the court, held at p. 131 D.L.R. that Collier J. was correct in this interpretation, based on the presumption that the same words used in the same statute should have the same meaning and, conversely, that different words have different meanings. He refused to interpret [page666] the word "substantiated", as used in s. 36(3), as meaning "that an inquiry into the complaint is warranted".

[57] The interpretation given to the word "substantiate" in MacBain, supra, should not be imported into the Police Services Act for several reasons. The first is the substantial difference in the statutory framework. Unlike the Canadian Human Rights Act that governed the case in MacBain, whereby "substantiate" was used twice in the Act to refer to two distinct phases in the complaints process, in interpreting this term in the Police Services Act we are not hindered by this anomaly. Rather, the terms should be interpreted in their entire context, harmoniously with the scheme and object of the Act, and the intention of the legislature. This was not the approach taken in MacBain. The Federal Court of Appeal in that case relied on an English decision, Crawford v. Spooner (1846), 18 E.R. 667, 6 Moo. P.C.C. 1 (P.C.), to the effect that the construction of an Act must be taken from its bare words: "We cannot fish out what possibly may have been the intention of the Legislature." This approach is contrary to the Canadian contextual approach to statutory interpretation which includes consideration of the intention of the legislature.

[58] The word "substantiate", according to Webster's Encyclopaedic Unabridged Dictionary (1989), means "to establish by proof or competent evidence". The Shorter Oxford Dictionary (1987) also contains a definition of "substantiate" as "to demonstrate or verify by proof or evidence to make good". "Unsubstantiated" is the antonym. The use of the words "if . . . the chief of police is of the opinion the evidence is unsubstantiated" suggests that there is an evidentiary burden on the complainant that must be met and that if it is not the Chief shall take no action.

[59] It is important to remember that the Chief is to investigate, not adjudicate. That is why the Chief does not hold a hearing. In administrative law contexts concerning regulated professions, findings of fact are to be determined at the hearing stage and not at the preliminary stage of resolving whether to hold a hearing into professional misconduct. In Pierce v. Law Society of British Columbia (1993), 1993 765 (BC SC), 103 D.L.R. (4th) 233 (B.C.S.C.), for example, the court held that findings of fact are a matter for consideration by the benchers and not the Discipline Committee whose task it is to recommend whether or not to issue a citation to counsel. (See also Yuz v. Laski (1984), 1984 1895 (ON SC), 48 O.R. (2d) 161, 6 O.A.C. 46 (Div. Ct.), affirmed (1986), 1986 2641 (ON CA), 57 O.R. (2d) 106, 32 D.L.R. (4th) 452 (C.A.), leave to appeal to the S.C.C. refused (1987), 42 D.L.R. (4th) viii, 1987 4285 (ON SC), 61 O.R. (2d) 538n, and Richard Steinecke, A Complete Guide to the Regulated Health Professions Act, looseleaf (Aurora: Canada Law Book, 2001) at p. 4-170 to the same effect.) [page667]

[60] In addition to the administrative law context, there is a common theme in criminal and civil law that the gatekeeper ought not to assess credibility, weigh the evidence or find the facts. [^1] [page668]

[61] The Divisional Court was correct in holding that the role of the Chief is not to make findings of fact. That question is reserved for the trier of fact at a hearing. The role of the Chief is to decide whether a hearing should be held and not what the result of a hearing should be. Given that findings of fact are based on an assessment of ultimate credibility, the Chief also does not assess the ultimate credibility of the complainant.

[62] The use of the words "if . . . the complaint is unsubstantiated the chief of police shall take no action" in s. 64(6) are, however, indicative that more than a bare assertion by the complainant is required. In this respect I do not agree with the Divisional Court that the evidentiary burden to be discharged is akin to that at a preliminary inquiry. I say this for several reasons. Firstly, as noted earlier, disciplinary proceedings are administrative and civil, not criminal in nature, and it would be inappropriate to apply a criminal approach to them. The 1996 Report, supra, and subsequent amendments to the Police Services Act reinforce this observation. [page669]

[63] Secondly, the Chief possesses a discretion that the judge conducting a preliminary inquiry does not have. If the Chief is of the opinion that the complaint is frivolous or vexatious or made in bad faith, s. 59(3) provides that a hearing need not be held. Section 135(1)(23.1) of the Act permits the Lieutenant Governor in Council to make regulations defining "frivolous and vexatious" and "made in bad faith". Although no regulations have been made in Ontario to date, these terms are addressed in the British Columbia Office of the Police Complaint Commissioner's Practice Directive. It states that a complaint is frivolous when, on its face, it is devoid of substance and/or without an air of reality. See the annotation in the Ontario Police Services Act, Fully Annotated, supra, at p. 120. An indication that s. 64(6) encompasses s. 59(3) is found in the Report, supra, which recommended that both sections were not needed and that s. 59(3) be repealed.

[64] In addition, even when the evidence indicates that there was police misconduct or unsatisfactory work performance, the Chief possesses the discretion under s. 64(11) to categorize the conduct as not of a serious nature and to resolve the matter informally without holding a hearing. While this discretion is subject to review, it is, nevertheless, an important power.

[65] Thirdly, in deciding whether or not to categorize the conduct in question as not being of a serious nature, the Chief may engage in considerations that have no role to play in a preliminary inquiry. For example, the Chief may wish to consider such matters as whether the conduct is isolated or part of a pattern, and whether the type of conduct is a problem for which an example ought to be made.

[66] Fourthly, unlike the judge at a preliminary inquiry, the Chief is engaged in a balancing exercise. On the one hand, the expectation of the public is that those they have entrusted to serve and protect them do so in a manner that is worthy of this trust, confidence and respect. On the other hand, the Chief must take into consideration that the police must often act in highly stressful, emotionally charged situations and must make decisions quickly that, while perfectly legitimate, may be offensive to those affected by them. The Chief will obviously be cognizant of the stress and stigma for a police officer if a hearing is held into his or her conduct as opposed to informal resolution. The Chief must treat both complainants and police officers in the fairest possible manner. Section 64 provides legislative guidance in the performance of this balancing function by giving the Chief three options in dealing with a complaint.

[67] Sections 64(6) and (7) must be read together. Under s. 64(6), the facts alleged by the complainant must be more than a self-serving [page670] bald allegation. The provisions of the Act respecting frivolous or vexatious complaints reinforce the conclusion that there must be a reasonable basis or an "air of reality" to the evidence before proceeding to the next stage. Otherwise, the complaint is unsubstantiated. If the Chief is not of the opinion that the complaint is unsubstantiated, then, under s. 64(7), the use of the words "may constitute police misconduct or unsatisfactory work performance" mean that if one of the permissible inferences to be drawn from all of the circumstances surrounding the complaint is that misconduct has occurred, then the statutory requirement has been met. Subject to informal resolution under s. 64(11), the duty to act is clear: a hearing must be held.

Issue 3: The Commission's Review of the Chief's Decision

[68] The Divisional Court held at para. 18:

Further, it appears that the Chief in reaching her decision -- confirmed by the Commission -- applied the wrong evidentiary standard. Ms. Cuthbertson was the case manager at the Commission who prepared the case for presentation to the Commission. Her notes, in relation to the topic "Transfer to Detention Centre" under the heading "Recommendation" read:

Confirm -- no clear and convincing evidence that transport to detention centre done for anything but operational efficacy

Margo Boyd was cross-examined on this note and was present when Ms. Cuthbertson presented the case to the Commission. She was referred to this recommendation and was asked:

156 Q. Was that a recommendation that she presented to the panel?

A. Yes.

157 Q. The panel accepted that recommendation?

A. Yes. This evidence suggests that the Commission has proceeded on the wrong evidentiary standard. Clear and convincing evidence is not required under s. 64 of the Act -- only evidence which may constitute misconduct is required.

(Emphasis in original)

[69] The Divisional Court was correct in concluding that the Chief and the Commission applied the wrong standard to the complaint. Only evidence which "may" constitute misconduct or unsatisfactory work performance is required, not "clear and convincing" evidence.

[70] In misconstruing the standard to be applied to the facts, the Commission arrogated to itself an issue reserved to another forum, that of the trier of fact at a hearing. It engaged in a process designed for determining whether or not misconduct had been committed, not whether it may have been committed. The [page671] Commission engaged in weighing the evidence in the broad sense reserved for the trier of fact at a hearing.

[71] The failure of the Commission to apply the correct standard in s. 64(6) and (7) makes its decision not to hold a hearing patently unreasonable, provided, of course, that there was some evidence that misconduct may have occurred. In this case that evidence consists of the direct evidence of Alison Gorbould. That evidence is supported by the evidence respecting the police policy. It was only those persons arrested after the cells were full that were to be transferred to the WDC. The policy would not have required that all of the women be transferred.

[72] The Commission is not bound by the decision of the Chief. The legislation does not require that error on the part of the Chief be shown before it can intervene. Although the Commission must "take into account" any material provided, nothing in the legislation prevents it from substituting its opinion for that of the Chief. The Commission has the power to confirm the decision of the Chief, to order that the complaint be processed as it specifies, or to assign the review to another police force. It is implicit that in conducting a review of the decision of the Chief as to whether a hearing is to be held, the Commission is required to consider the meaning of "misconduct" as defined by s. 74(1).

Meaning of "misconduct"

[73] The Case Review which was central to the deliberations of the Commission respecting the strip search complaint stated:

Overall comments

No misconduct per se. weaknesses [with] operation plan that deprived complainants of constitutional rights

[74] The word "misconduct" is defined in s. 74(1) of the Act. It includes "an offence described in a prescribed code of conduct". Schedule A, O. Reg. 123/98 made under the Police Services Act contains this code of conduct. It states in relevant part:

2(1) Any . . . police officer commits misconduct if he or she engages in,

(a) discreditable conduct in that he or she,

. . . . . (x) contravenes any provision of the Act or the regulations, or

(xi) acts . . . in a manner . . . likely to bring discredit upon the reputation of the police force.

[75] Thus, statutory powers and obligations of the Commission in the context of a s. 72 review expressly require consideration of [page672] any conduct by an officer that would bring discredit upon the reputation of the police force.

[Section 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[76] The Divisional Court held that, in addition to applying the wrong evidentiary standard, the Commission had not considered the law relating to search and seizure under either s. 8 of the Charter or at common law. At para. 22, MacFarland J. held:

We think minimally where it is alleged that the applicants were subjected to a strip search which in the circumstances, breached their s. 8 rights under the Charter, it would be reasonable and necessary in considering the issue of police misconduct to consider whether there is any evidence that the police actions violated the complainants' constitutional rights. Such evidence could or "may" constitute police misconduct.

[77] In its request that the Commission review the Chief's decision, the CCLA clearly complained about the wrongful nature of the decision to transfer the complainants to a strip search facility in violation of their right to be free from unreasonable search.

[78] The facta of the appellant and intervenors argue that the Commission did not have jurisdiction to consider whether the right of the complainants to be free from unreasonable search and seizure under s. 8 of the Charter was infringed by the decision to transfer them to the Wellington Detention Centre. They submit that an administrative tribunal only has jurisdiction to consider questions of law, including the Charter, if this jurisdiction is explicitly or implicitly conferred by its enabling statute: Cooper v. Canada, supra.

[79] The Commission had explicit jurisdiction to consider the Charter. Item 2 of the Declaration of Principles in s. 1 of the Police Services Act explicitly requires consideration of the rights guaranteed by the Charter in policing. It states:

1. Police services shall be provided throughout Ontario in accordance with the following principles:

. . . . . 2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.

[80] Arguably, the decision of the Commission as to whether or not to hold a hearing into a complaint is not a "police service". If that is so I would hold that the Commission also had implicit jurisdiction to consider the Charter. In R. v. 974649 Ontario Inc., 2001 SCC 81, 154 O.A.C. 345, at para. 36, McLachlin C.J.C. stated: [page673]

Parliament and the provincial legislatures premise legislation on the fact that courts and tribunals operate within a legal system governed by the constitutional rights and norms entrenched by the Charter. The "functional and structural" approach reflects this premise.

[81] In the absence of language to the contrary, it must be inferred that the legislature intended the Commission to apply the Charter in exercising its powers. My conclusion is also supported by the decision of the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paras. 21-28, and this court's decision in Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 2001 21164 (ON CA), 56 O.R. (3d) 505, 208 D.L.R. (4th) 577 (C.A.) at para. 179.

[82] I would agree with the Divisional Court that in reviewing whether the conduct of the police "may constitute misconduct", the right of the complainants to be free from unreasonable search and seizure should be considered.

Whether there was some evidence of misconduct

[83] A decision to transfer the complainants that ignored or neglected their right to be free from unreasonable search and seizure could bring discredit upon the reputation of the police force and is thus evidence that misconduct "may" have occurred. At a minimum, such conduct could constitute unsatisfactory work performance. The comments made imply, however, that the police were merely acting in accordance with the policy that had been established. Thus, although the policy may have been inappropriate, the individual police officer did not engage in misconduct because he was merely complying with the policy. In this regard, I note that the policy provided that the overflow population was to be transferred once the cells were full. Even accepting that the designated cells for women were full, the policy did not require that all of the women be transferred to the Detention Centre. It was only those arrested after the cells were full that were to be transferred. There is, in addition, a question whether given the number of vacant cells designated for men that evening, there was some obligation to reassign occupancy of all cells in a way that avoided any arrested person, male or female, from being sent to a facility that performed strip searches. There is, therefore, some circumstantial evidence that supports the allegation of the individual complainants that the transfer was done in bad faith.

Issue 4: Whether the Commission was Required to give Reasons in Addition to Those in its Letter of April 13, 2000

[84] The Divisional Court held that it appeared from the evidentiary record that there was an obligation on the Commission [page674] to say why it was confirming the decision of the Chief to dismiss the complaint as unsubstantiated.

[85] The Commission submits that the Divisional Court erred because there is no obligation under the Act to give reasons to any party.

[86] The Divisional Court did not have the benefit of this court's decision in Browne, supra. In Browne, Abella J.A. commented at paras. 60-62 that the Commission's role as an appellate body might be unduly compromised by the obligation to provide reasons at the gatekeeping stage of deciding whether or not a hearing should be held. She further noted that the Commission's decision at this stage is exempt from the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Having regard to these factors, she held that there was no common law duty to provide reasons for the decision to confirm or overturn the decision of the Chief.

[87] Even in the criminal context the inadequacy of reasons has been rejected as a freestanding ground of appeal: R. v. Braich, 2002 SCC 27, 210 D.L.R. (4th) 635. Instead, the Supreme Court has adopted a functional approach that requires an appellant to show that deficiency in the reasons caused prejudice to the exercise of the right of appeal. This functional approach is reflected in the administrative context in the Supreme Court's comments in Baker, supra, that a statutory body's duty to give a rationale for its reasons, which is based on a duty of fairness, is flexible and variable, and is defined by the context of the particular statute, the decision being rendered, and the rights affected.

[88] For a right of review to be meaningful the reviewing body, in this case the Divisional Court, must be able to perform its task.

[89] In this case, the Chief received a report from the Waterloo police that was reviewed by a committee of her police force and adopted by her in her report. This report was in turn confirmed by the Commission. Both reports functioned as the reasons before the Commission. By confirming the decision of the Chief, the Commission, in essence, adopted her report. The cross-examination of Margo Boyd amplified the decision letter of April 13, 2000. In reviewing the Commission's decision, the Divisional Court was, in the end, able to perform its task based on the material before it. As a result, no reasons apart from the April 13, 2000 letter were required.

Issue 5: Whether the Decision of the Commission was Patently Unreasonable

[90] In light of the Commission's error in interpreting the evidentiary standard to be applied in determining whether a hearing [page675] should be held into an allegation of misconduct, and in light of the Commission's failure to consider the right of the complainants to be free from unreasonable search and seizure, the Commission's decision was patently unreasonable.

Conclusion

[91] In accordance with these reasons, I would dismiss the appeal from the decision of the Divisional Court subject to one variation. While I would quash the decision of the Commission, I would not remit the matter back to the Commission to be decided in accordance with this court's reasons. I would, instead, declare that having regard to the appropriate interpretation of ss. 64(6) and (7) as outlined in these reasons, the only possible conclusion is that the individual complainants are entitled to a hearing to be conducted pursuant to s. 72(8) by a different police force.

[92] In making this declaration I recognize that I am departing from the traditional remedy of quashing the decision under review and remitting the matter back to be dealt with by the administrative body. There is, however, guidance in the decision of the Supreme Court in Renaud v. Québec (Commission des affaires sociales), 1999 642 (SCC), [1999] 3 S.C.R. 855, 184 D.L.R. (4th) 441. In the unusual circumstances of that case, as here, the complaint had previously been the subject of review on two or more occasions and no useful purpose would have been served by remitting the matter back to the administrative body. I note that in Barreau du Québec c. Lachance, [2000] J.Q. No. 317 (Quicklaw), the Quebec Superior Court similarly stated that it would be "inutile" or useless to send the matter back to the administrative body. Coincidentally these decisions reflect the recommendation made by the English Law Commission in its 1994 report "Administrative Law: Judicial Review and Statutory Appeals": from Lord Woolf, J. Jowell and A.P. Le Sueur, Principles of Judicial Review (London: Sweet & Maxwell, 1999) at p. 582 that on rare occasions where no other outcome would be appropriate, the reviewing court may make the order the administrative body should have made.

COSTS

[93] Before the Divisional Court, counsel agreed that there be no costs awarded to either side save with respect to the cost of the cross-examination of Margo Boyd. Accordingly, other than the costs of the cross-examination of Margo Boyd which are awarded to the respondents, I would award no costs on this appeal.

Appeal dismissed. [page676]

APPENDIX

EXTRACTS FROM THE POLICE SERVICES ACT

PART V COMPLAINTS

Making a complaint

56.(1) Any member of the public may make a complaint under this Part about the policies of or services provided by a police force or about the conduct of a police officer.

Public complaints, restriction

57.(1) A complaint may be made by a member of the public only if the complainant was directly affected by the policy, service or conduct that is the subject of the complaint.

Procedure for making a complaint

(2) A complaint made by a member of the public must be in writing, signed by the complainant and delivered to any station or detachment of the police force to which the complaint relates or to the Commission, personally by the complainant or his or her agent, by mail or by telephone transmission of a facsimile.

Chief determines nature of complaints

Frivolous, vexatious, bad faith complaints

59.(3) The Chief may decide not to deal with any complaint about the police force or about a police officer, other than the Chief or deputy chief of police, that he or she considers to be frivolous or vexatious or made in bad faith.

Complaint more than six months old

(4) The Chief may decide not to deal with any complaint made by a member of the public if the complaint is made more than six months after the facts on which it is based occurred.

Complaints about police officer's conduct

Investigation assigned to another police force

64.(2) A municipal chief of police may, with the approval of the board and on written notice to the Commission, ask the Chief of another police force to cause the complaint to be investigated and to report, in writing, back to him or her at the expense of the police force in respect of which the complaint is made.

Unsubstantiated complaint

(6) If, at the conclusion of the investigation and on review of the written report submitted to him or her, the Chief is of the opinion that the complaint is unsubstantiated, the Chief shall take no action in response to the complaint and shall notify the complainant and the police officer who is the subject of the complaint, in writing, together with a copy of the written report, of the decision and of the complainant's right to ask the Commission to review the decision within 30 days of receiving the notice.

Hearing to be held

(7) Subject to subsection (11), if, at the conclusion of the investigation and on review of the written report submitted to him or her, the Chief is of the opinion that the police officer's conduct may constitute misconduct, as defined in section 74, or unsatisfactory work performance, he or she shall hold a hearing into the matter.

Findings and disposition after hearing

(10) At the conclusion of the hearing, if misconduct or unsatisfactory work performance is proved on clear and convincing evidence, the Chief shall take any action described in section 68.

Informal resolution if conduct not serious

(11) If, at the conclusion of the investigation and on review of the written report submitted to him or her, the Chief is of the opinion that there was misconduct or unsatisfactory work performance but that it was not of a serious nature, the Chief may resolve the matter informally without holding a hearing, if the police officer and the complainant consent to the proposed resolution.

Notice to complainant

(12) Before resolving the matter informally, the Chief shall notify the complainant and the police officer, in writing, of his or her opinion that there was misconduct or unsatisfactory work performance that was not of a serious nature, and that the complainant may ask the Commission to review this decision within 30 days of receiving such notification.

No informal resolution until after Commission's review

(13) The Chief shall take no action to resolve the matter informally until,

a) the 30-day period in which the complainant may ask for a review has expired, without a review being requested; or

b) if the complainant asked for a review within the 30-day period, the Commission has completed its review and then, only if the Commission's decision is such that there may be an informal resolution of the complaint.

(14) Despite subsection (13), if the complainant notifies the Chief in writing that he or she will not ask the Commission to conduct a review under section 72, the Chief shall take action to resolve the matter informally immediately after receiving such notification from the complainant.

Disposition without a hearing if informal resolution fails

(15) If an informal resolution of the matter is attempted but not achieved under subsection (11), the following rules apply:

1. The Chief shall provide the police officer with reasonable information concerning the matter and shall give him or her an opportunity to reply, orally or in writing.

2. Subject to paragraph 3, the Chief may impose on the police officer the penalty described in clause 68(1)(e) and may take any other action described in subsection 68(5) and may 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.

3. If the police officer refuses to accept the penalty imposed or action taken, the Chief shall not impose a penalty or take any other action or cause any entry to be made in the police officer's employment record, but shall hold a hearing under subsection (7).

Appeal to Commission

70.(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held under subsection 64(7) or 65(9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

Commission to hold hearing on notice from police officer

(2) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a police officer.

Commission to hold hearing on notice from complainant, limitation

(3) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a complainant if the appeal is from the finding that misconduct or unsatisfactory work performance was not proved on clear and convincing evidence.

Commission may hold hearing

(4) The Commission may hold a hearing, if it considers it appropriate, upon receiving a notice under subsection (1) from a complainant with respect to an appeal other than an appeal described in subsection (3).

Appeal on the record

(5) A hearing held under this section shall be an appeal on the record, but the Commission may receive new or additional evidence as it considers just.

Powers of Commission

(6) The Commission may confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the Chief or board, as the case may be. 1997, c. 8, s. 35.

Request for review of decision by Commission

72.(1) If a complainant disagrees with the decision of a chief of police to deal with his or her complaint as a complaint about the policies of or services provided by the police force or as a complaint about the conduct of a police officer, the complainant may, within 30 days of receiving notice under subsection 59(2), ask the Commission to review the decision.

(2) If a complainant has been notified under subsection 59(6), 62(5) or 65(3) that his or her complaint will not be dealt with because it is frivolous or vexatious or made in bad faith, the complainant may, within 30 days of such notification, ask the Commission to review the decision.

(3) If a complainant has been notified under subsection 59(6), 62(5) or 65(4) that his or her complaint will not be dealt with because it was made more than six months after the facts on which it is based occurred, the complainant may, within 30 days of such notification, ask the Commission to review the decision.

(4) If a complainant has been notified under subsection 59(6), 62(5) or 65(5) that his or her complaint will not be dealt with because he or she was not directly affected by the policy, service or conduct that is the subject of the complaint, the complainant may, within 30 days of such notification, ask the Commission to review the decision.

(5) If a complainant has been notified under subsection 64(6) or (12) or 65(8) or (14) that his or her complaint is unsubstantiated or that the conduct he or she complained of has been determined to be not of a serious nature, the complainant may, within 30 days of such notification, ask the Commission to review the decision.

Request in writing

(6) The request for a review must be in writing.

Commission to review

(7) Upon receiving a request for a review under this section, the Commission shall review the decision, taking into account any material provided by the complainant or the Chief, detachment commander or board, and shall endeavour to complete its review within 30 days of receiving the request, but the Commission shall not hold a hearing into the matter.

Commission's powers

(8) Upon completion of the review, the Commission may confirm the decision or may direct the Chief, detachment commander or board to process the complaint as it specifies or may assign the review or investigation of the complaint or the conduct of a hearing in respect of the complaint to a police force other than the police force in respect of which the complaint is made.

Cost of complaints process

(9) If the Commission assigns the review or investigation of a complaint or the conduct of a hearing in respect of a complaint to a police force under subsection (8), the police force in respect of which the complaint is made shall pay the costs of the review, investigation or hearing incurred by the police force to which the matter is assigned.

Notice

(10) The Commission shall notify the complainant and the Chief, detachment commander or board, as the case may be, and the police officer who is the subject of the complaint of its decision and the action taken by it under subsection (8).

Complaint to be processed as specified

(11) If notified by the Commission that the complaint is to be processed as specified, the Chief, detachment commander or board shall immediately so process the complaint.

Final decision

(12) The Commission's decision under subsection (8) is final and binding and there is no appeal therefrom. 1997, c. 8, s. 35.

Notes

[^1]: The traditional formulation of the test for committal at a preliminary inquiry is whether there is any evidence upon which a properly instructed jury, acting reasonably, could find guilt: United States of America v. Shepherd, 1976 8 (SCC), [1977] 2 S.C.R. 1067 at p. 1080, 70 D.L.R. (3d) 136. Where there is direct evidence on all the elements of an offence, the case must proceed to trial. However, where there is circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence, including any exculpatory evidence put forward by the defence, to determine whether, if the Crown's case is believed, it would be reasonable for a properly instructed jury to infer guilt. The task of "limited weighing" involves consideration of the permissible inferences that may be drawn from the evidence. It never requires consideration of the inherent reliability of the evidence itself: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, 203 D.L.R. (4th) 20 at paras. 29-31. The requirement of an evidentiary foundation before a hearing is held is not unique to the preliminary inquiry. For example, before a defence raised by an accused can be put to a jury, the trial judge decides whether there is an evidentiary foundation for it. This is referred to as the "air of reality test." The principles governing the "air of reality test" were recently discussed in R. v. Cinous 2002 SCC 29, 210 D.L.R. (4th) 64. McLachlin C.J.C. and Bastarache J., for the majority, stated at para. 51:

> The basic requirement of an evidential foundation for defences gives rise to two well-established principles. First, a trial judge must put to the jury all defences that arise on the facts. ... Second, a trial judge has a positive duty to keep from the jury defences lacking an evidential foundation.

In determining whether a defence meets the evidentiary burden of having an "air of reality", corroboration is not required but there must be more than a bare assertion of the defence: R. v. Park, [1995 104 (SCC)](https://www.minicounsel.ca/scc/1995/104), [1995] 2 S.C.R. 836, 99 C.C.C. (3d) 1. At a later point in their reasons, McLachlin C.J.C. and Bastarache J. reject the argument that the air of reality test after Pappajohn v. R. [1980 13 (SCC)](https://www.minicounsel.ca/scc/1980/13), [1980] 2 S.C.R. 120, 111 D.L.R. (3d) 1 required an assessment of the "sufficiency of the evidence" and that this requirement imposes a more onerous burden than the traditional "some evidence" requirement. McLachlin C.J.C. and Bastarache J. conclude that the evidence required to satisfy the evidential threshold is"some evidence on the basis of which a properly instructed jury acting reasonably could acquit". In applying this test, the trial judge assumes that the evidence relied upon by the accused is true. Whether there is an evidentiary foundation for a defence is determined by looking at the whole of the evidence, including the factual circumstances of the case, and not just the evidence of the accused. At para. 54, they observe:

> The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. [Citations omitted].

If, however, the jury acting reasonably would be incapable of acquitting, the evidentiary threshold has not been satisfied. The minority opinion, authored by Arbour J., emphatically agreed with the majority, at para. 163, that no attempt at weighing the evidence should be made and she certainly would not have disagreed with the balance of the comments made by McLachlin C.J.C. and Bastarache J. in para. 54 cited above. Arbour J. was concerned, however, that the term "some evidence" would result in the trial judge transgressing on the function of the jury. She therefore proposed that a "no evidence" test rather than a "sufficient evidence test" should be applied in determining whether a proffered defence has an "air of reality".

In the non-criminal context, a preliminary determination is made by a judge as to whether there is a "genuine issue for trial" when a party brings a motion for summary judgment seeking to have a claim dismissed or seeking judgment on the claim: see [Rules of Civil Procedure, R.R.O. 1990, Reg. 194](https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.html), Rule 20. In Aguonie v. Galion Solid Waste Material Inc. (1998), [1998 954 (ON CA)](https://www.canlii.org/en/on/onca/doc/1998/1998canlii954/1998canlii954.html), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222 (C.A.), and Dawson v. Rexcraft Storage and Warehouse Inc. (1998), [1998 4831 (ON CA)](https://www.canlii.org/en/on/onca/doc/1998/1998canlii4831/1998canlii4831.html), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.), the court held that on such a motion the judge ought never to assess credibility, weigh the evidence, or find the facts, all of which are functions reserved to the trier of fact. However, an issue of fact must relate to a material fact, otherwise it cannot raise a genuine issue for trial. Merely raising an issue of credibility is not sufficient; the issue of credibility must be material and genuine. Likewise, in Guarantee Co. of North America v. Gordon Capital Corp., [1999 664 (SCC)](https://www.minicounsel.ca/scc/1999/664), [1999] 3 S.C.R. 423, 178 D.L.R. (4th) 1, the Supreme Court held that a party opposing summary judgment must show "a real chance of success". A self-serving affidavit does not create a triable issue in the absence of detailed facts and supporting evidence.